Petition of Carmen

• Decision Date: 12 September 1958
• Docket Number: Civ. No. 37037.
• Citation: 165 F. Supp. 942
• Parties: PETITION OF Reyna Tom CARMEN for a Writ of Habeas Corpus.
• Court: U.S. District Court — Northern District of California

165 F. Supp. 942

PETITION OF Reyna Tom CARMEN for a Writ of Habeas Corpus.

Civ. No. 37037.

United States District Court N. D. California, S. D.

September 12, 1958.

Mason A. Bailey, Madera, Cal., Leonard J. Bloom, San Francisco, Cal., for petitioner Rayna Tom Carmen.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., for respondent.

GOODMAN, Chief Judge.

Petitioner is confined at the California State Penitentiary at San Quentin pursuant to a judgment of conviction of murder and sentence of death imposed by the Superior Court of the State of California in and for the County of Madera, on October 30, 1951.¹ By an application for the writ of habeas corpus, he seeks his discharge on the ground that the California Superior Court lacked jurisdiction to try him for the murder of which he was convicted because exclusive jurisdiction to try him for such offense was vested by federal statute in the United States District Court.

The statute relied upon by petitioner is often referred to as the Ten Major Crimes Act² and is now incorporated in Sections 1151, 1153, and 3242 of Title 18 of the United States Code. It provides in substance that an Indian who commits any of the ten listed crimes, among which is murder, in Indian Country shall be subject to the same laws and penalties and tried in the same courts as persons committing such crime within the exclusive jurisdiction of the United States. During petitioner's trial in the Superior Court apparently he and his counsel, the prosecution, and the court were all unaware of this statute. There was testimony at the trial indicating that both petitioner and his victim were Indians, but this testimony was given as background information and not for the purpose of questioning the court's jurisdiction. There was evidence that the scene of the crime was the victim's residence, but this evidence did not establish that his residence was in Indian Country.

Upon the automatic appeal from the judgment of conviction and sentence of death, an Assistant United States Attorney appeared before the Supreme Court of California in behalf of the United States and advised the Court that since petitioner and his victim were Indians and there was reason to believe the locale of the crime was Indian Country, it appeared that the United States had exclusive jurisdiction to try petitioner. Thereafter the parties filed with the Supreme Court a stipulation that both petitioner and his victim were Indians by race and that the murder had been committed on an Indian allotment the title to which was held in trust by the United States. On the basis of this stipulation, the Supreme Court found that exclusive jurisdiction to try petitioner was vested by statute in the United States courts, and reversed the judgment of conviction. People v. Carmen, 265 P.2d 900 (Feb. 1, 1954). Upon application by the prosecution, a rehearing was granted.

On rehearing, the Supreme Court found the stipulation inadequate to establish that petitioner or his victim were Indians within the meaning of the Ten Major Crimes Act. It also found the evidence in the trial record inadequate to show that petitioner and his victim were Indians within the meaning of the Act or that the crime occurred in Indian Country. It therefore sustained the jurisdiction of the Superior Court upon the trial record and affirmed the judgment of conviction. People v. Carmen, 43 Cal.2d 342, 273 P.2d 521 (August 17, 1954).

Petitioner then sought to raise the jurisdictional issue by application to the California Supreme Court for a writ of habeas corpus. Upon the filing of this application on November 10, 1954, the Supreme Court issued the writ and appointed a Referee to take testimony and make findings regarding the Indian status of petitioner and his victim as well as the locus of the crime. At the hearings before the Referee it was again stipulated that the crime was committed on an Indian allotment title to which was held in trust by the United States and the petitioner and his victim were Indians by blood. In addition, on the basis of the testimony taken, the Referee found that petitioner and his victim belonged to the Mono tribe of Indians and were listed on the roll of Indians maintained by the United States Department of Interior as members of such tribe. He further found that the tribe maintained a loose tribal organization and followed unique customs and that petitioner and his victim had never severed tribal relations.

After receiving the findings of the Referee, the Supreme Court of California nevertheless disregarded them, because in its opinion the trial court's exercise of jurisdiction could not be contested in a habeas corpus proceeding on the basis of new facts not appearing in the trial record. It therefore discharged the writ of habeas corpus. In re Carmen, 48 Cal. 2d 851, 313 P.2d 817 (August 2, 1957).

During all of these years that the California Supreme Court wrestled with the jurisdictional question, petitioner remained in custody on death row in San Quentin. Upon the adverse ruling on his petition for habeas corpus, he applied to the United States Supreme Court for a writ of certiorari to review the judgment of the California Supreme Court. This application was denied on January 13, 1958 "without prejudice to an application for a writ of habeas corpus in an appropriate United States District Court." Carmen v. Dickson, 355 U.S. 924, 78 S.Ct. 367, 2 L.Ed.2d 354. The application to this Court for the writ followed. An order to show cause was issued and a return was made by respondent. The cause has been argued and briefed by counsel for petitioner and respondent.

Respondent intially questions the applicability of the Ten Major Crimes Act. The text of this act as it now appears in the United States Code is as follows:

18 U.S.C. § 1153. Offenses committed within Indian Country.

"Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States."

18 U.S.C. § 3242. Indians committing certain offenses.

"All Indians committing any of the following offenses, namely, murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny on and within the Indian country, shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States."

18 U.S.C. § 1151. Indian country defined.

"Except as otherwise provided in sections 1154 and 1156 of this title, the term `Indian country,' as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same."

The Indian allotment which was the site of the murder, for which petitioner was convicted, was made from lands in the public domain. Respondent urges that it consequently was not an allotment, the Indian title to which has not been extinguished and thus is not Indian country as defined in the Act. He contends that an allotment, the Indian title to which has not been extinguished, is an allotment from an Indian reservation or from land of which the Indians have had uninterrupted use and occupancy.

Respondent bases this interpretation of the statute primarily upon his view of its legislative history. The Ten Major Crimes Act as originally enacted on March 3, 1885, 23 Stat. 385, was not applicable to the Indian country generally but only to Indian reservations. But, when the Act was incorporated into the New Criminal Code in 1948, the reach of the Act was extended to all Indian country as defined in Section 1151 of the Code. Section 1151 represented the first attempt to statutorily define the term "Indian Country" since the Act of June 30, 1834, 4 Stat. 729, which had been repealed in 1874 (Revised Statutes § 5596). Section 1151 resulted from the judicial definitions of the term in the intervening years. House Report No. 304, 80th Congress, page 492 states that Indian allotments were included in the definition of Indian Country on the authority of United States v. Pelican, 1914, 232 U.S. 442, 34 S.Ct. 396, 399, 58 L.Ed. 676. In Pelican a murder had been committed on an Indian allotment which had been carved out of an Indian reservation and then excluded from the boundaries of the reservation. The Supreme Court held that so long as the United States held title to the allotment in trust for the Indian allottee it remained Indian country even though the allotment was no longer within the reservation. Respondent interprets the Pelican decision to mean that an allotment to be Indian Country must have been made from lands which were previously Indian Country. But this is an unduly restricted view of that decision. In Pelican the allotment in question had in fact been made from lands that were already Indian Country. But, that decision does not imply at all that this was a necessary prerequisite to the allotment being Indian Country. Indeed, quite the contrary is true. In Pelican, the reservation from which the allotment was made had itself been created out of the public domain rather than from land which had previously been in...