Negonsott v. Samuels, Civ. A. No. 88-3049-S.

• Decision Date: 22 September 1988
• Docket Number: Civ. A. No. 88-3049-S.
• Citation: 696 F. Supp. 561
• Court: U.S. District Court — District of Kansas
• Parties: Emery L. NEGONSOTT, Petitioner, v. Harold SAMUELS, et al., Respondents.

696 F. Supp. 561

Emery L. NEGONSOTT, Petitioner, v. Harold SAMUELS, et al., Respondents.

Civ. A. No. 88-3049-S.

United States District Court, D. Kansas.

September 22, 1988.

Pamela S. Thompson, Chamberlain, S.D., for petitioner.

John K. Bork, Asst. Atty. Gen., Topeka, Kan., for respondents.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at the Kansas State Penitentiary, Lansing, Kansas, alleges that Kansas lacks jurisdiction over his criminal acts.

Petitioner is a Kickapoo Indian who was charged with aggravated battery for the shooting of another Kickapoo Indian within the territorial confines of the Kickapoo Indian Nation Reservation. Because the reservation is located within Brown County, Kansas, petitioner was tried before a jury in the district court of Brown County. Although the jury found petitioner guilty, the district court set aside the conviction for lack of jurisdiction. Upon appeal by the State, the Kansas Supreme Court upheld petitioner's conviction and held that Kansas had jurisdiction over all crimes committed by or against Indians on Indian reservations in Kansas. State v. Nioce, 239 Kan. 127, 716 P.2d 585 (1986).

DISCUSSION

The only issue before this court is whether Kansas has jurisdiction over Indian offenses falling within the scope of the Federal Major Crimes Act. 18 U.S.C. § 1153. To decide this issue, the court must interpret federal statute 18 U.S.C. § 3243, which provides:

Jurisdiction is conferred on the State of Kansas over offenses committed by or against Indians on Indian reservations, including trust or restricted allotments, within the State of Kansas, to the same extent as its courts have jurisdiction over offenses committed elsewhere within the State in accordance with the laws of the State.

This section shall not deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on Indian reservations.

The apparent ambiguity of the statute is created by the language of the second paragraph. Although the first paragraph appears to confer jurisdiction on the State of Kansas over all Indian offenses committed within the state, the second paragraph's reservation of federal jurisdiction makes the extent of this conveyance ambiguous.

Petitioner argues that 18 U.S.C. § 3243 provides for exclusive federal jurisdiction for crimes falling within the scope of the Federal Major Crimes Act. 18 U.S.C. § 1153. Because aggravated battery is covered by the Federal Major Crimes Act, petitioner argues that Kansas lacks jurisdiction over his offense. In contrast, respondent argues that 18 U.S.C. § 3243 grants Kansas jurisdiction over all offenses committed by or against Indians on Indian reservations within the state.

This case is not the first time this court has been asked to interpret 18 U.S.C. § 3243. In Iowa Tribe of Indians of Kansas and Nebraska v. State of Kansas, No. 83-4304 (D.Kan. May 30, 1984) available on WESTLAW, 1984 WL 2754, this court was faced with the issue of whether the State of Kansas had jurisdiction to prosecute members of the Iowa Tribe of Indians of Kansas and Nebraska for selling "pull-tab cards" in connection with bingo games conducted on the Tribe's reservation. Interpreting the statute in light of its legislative history, this court concluded that Kansas had jurisdiction over non-major state offenses committed by or against Indians on Indian reservations located in the state of Kansas. On appeal, the Tenth Circuit Court of Appeals affirmed this court's decision. Iowa Tribe of Indians of Kansas and Nebraska v. State of Kansas, 787 F.2d 1434 (10th Cir.1986). Because the sale of "pull-tab cards" did not fall within the scope of the Federal Major Crimes Act, neither this court nor the Tenth Circuit Court of Appeals reached the issue raised by this case.

Like the Kansas Supreme Court in Nioce and the Tenth Circuit Court of Appeals in Iowa Tribes, this court finds persuasive the legislative history of 18 U.S.C. § 3243. Of particular relevance is the report of E.K. Burlew, Acting Secretary of the Interior, to Representative Will Rogers, Chairman of the House Committee on Indian Affairs. This report, contained in House Report No. 1999, 76 Cong., 3rd Sess. (1940), consists of a letter and memorandum discussing the purpose and effect of the proposed legislation.

In his letter, Burlew explained the two main reasons for introducing the proposed legislation. First, Burlew noted that the federal criminal statutes applicable to Indian reservations were limited in scope and left some major crimes as well as most minor offenses outside the jurisdiction of the federal courts. H.R.Rep. No. 1999, 76th Cong., 3rd Sess. 2 (1940). Second, Burlew explained that, because more than two-thirds of the area within the reservation boundaries...