529 F.2d 114 (9th Cir. 1975), 74--3022, United States v. Burns

Docket Nº:74--3022.
Citation:529 F.2d 114
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard Virgil BURNS, Defendant-Appellant.
Case Date:December 22, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 114

529 F.2d 114 (9th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,


Richard Virgil BURNS, Defendant-Appellant.

No. 74--3022.

United States Court of Appeals, Ninth Circuit

December 22, 1975

Page 115

R. M. Whittier (argued), Pocatello, Idaho, for defendant-appellant.

Dan E. Dennis, Asst. U.S. Atty. (argued), Boise, Idaho, for plaintiff-appellee.

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Before DUNIWAY and GOODWIN, Circuit Judges, and THOMPSON, District Judge. [*]

GORDON THOMPSON, Jr., District Judge:

Burns is an Indian employed by the Shoshone-Bannock Tribe of Indians, Fort Hall Indian Reservation, Idaho, as a temporary tribal game warden. He was convicted under seperate counts charging unlawful possession of a firearm by a felon in violation of 18 U.S.C. App. § 1202(a) and assault with a dangerous and deadly weapon in violation of 18 U.S.C. § 1153, and Idaho 18--906. We affirm.

I. Statement of Facts

With respect to the first count, the evidence shows that Burns, a convicted felon, was arrested with a Colt .45 automatic pistol in his possession, which was manufactured in Hartford, Connecticut. The gun was shipped to Boise, Idaho in October, 1972 and sold to the appellant's wife, in his presence, on August 28, 1973.

On October 7, 1973, a party of non-Indians had trespassed onto the Fort Hall Indian Reservation, Idaho for the purpose of crossing over onto public land. The party consisted of three vehicles and eleven persons, including men, women and children. They had no firearms in their possession.

Burns and another tribal game warden stopped the rear vehicle, demanded to see the driver's license of the driver and refused to allow the driver to proceed and leave the area by a different route. The two tribal wardens then proceeded after the second vehicle driven by Cyril Lempke, in which his wife and son, Chris Lempke, were passengers. The appellant Burns, without identifying himself, demanded to know what the party was doing on the road and ordered them off the reservation. The Lempkes protested denial of the right to use the road after which an argument ensued. Burns made a statement to the effect that he would put a stop to the nonsense, pulled his pistol from its holster and pointed it directly at Chris Lempke. Cyril Lempke intervened, and the gun was put away.

II. Jurisdiction

Appellant contends that the trial court had no jurisdiction to try an alleged violation of 18 U.S.C. App. § 1202(a), where committed by an Indian on an Indian reservation. Indian tribes are recognized as quasi-sovereign entities with the power to regulate their own affairs, save to the extent to which Congress has modified or abrogated that power by treaty or statute. Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883); Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation, 231 F.2d 89 (8th Cir. 1956). He argues that by treaty and tribal law, the task of preventing trespass by unauthorized persons upon the reservation was in the hands of the tribal council. The council could select whomever it wished as game wardens to carry out the rules and regulations adopted on the reservation.

In support of this contention appellant cites 18 U.S.C. §§ 1152 and 1153. 1 By legislation, Congress has indicated in § 1153 that only ten (10) major crimes are to apply to Indians. 'Possession of a

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firearm by a convicted felon' is not one of them. Burns argues also that § 1152 indicates the general laws of the United States will not apply to any Indian committing any offense in the Indian country 'where, by treaty stipulation, the exclusive jurisdiction over such offenses is secured to the Indian tribes.'

Appellant misreads §§ 1152 and 1153. A similar argument was made and rejected in Walks on Top v. United States, 372 F.2d 422 (9th Cir. 1967), cert. denied 389 U.S. 879, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967); accord, Stone v. United States, 506 F.2d 561 (8th Cir. 1974). The second paragraph of § 1152 lists exceptions only from federal enclave laws and not from the general laws of the United States. The first paragraph declares, '(e)xcept as otherwise provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States . . . shall extend to the Indian country.' § 1153 is in the same vein. Any Indian who commits one of the ten (10) major crimes against another Indian or other person 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', i.e., federal enclaves.

We agree with the recent case of United States v. Three Winchester 30--30 Caliber Lever Action Carbines, etc., 504 F.2d 1288 (7th Cir. 1974), 2 where the court held that 18 U.S.C. App. § 1202(a) did apply to Indians on Indian reservations. Section 1202(a) is included in...

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