Cardinal v. U.S., 90-1291

• Decision Date: 16 January 1992
• Docket Number: No. 90-1291,90-1291
• Parties: Lawrence C. CARDINAL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 359

954 F.2d 359

Lawrence C. CARDINAL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 90-1291.

United States Court of Appeals, Sixth Circuit.

Argued July 23, 1991.

Decided Jan. 16, 1992.

Lawrence C. Cardinal, pro se.

Clarence T. Belue (argued and briefed), Madison, Wis., for petitioner-appellant.

Ruth Ann Ernst (argued), Donald Daniels, Asst. U.S. Atty. (briefed), Grand Rapids, Mich., for respondent-appellee.

Before GUY and RYAN, Circuit Judges, and HULL, Chief District Judge. ^*

RALPH B. GUY, Jr., Circuit Judge.

Defendant, Lawrence C. Cardinal, was convicted of the crime of rape on an Indian reservation, in violation of 18 U.S.C. § 2031. The trial court exercised jurisdiction pursuant to the Major Crimes Act, 18 U.S.C. §§ 1151 and 1153. Cardinal subsequently filed this petition pursuant to 28 U.S.C. § 2255, seeking to have his sentence vacated or set aside on the ground that the sentencing court lacked subject matter jurisdiction over the crime of which he was convicted. Cardinal argued that federal jurisdiction did not exist because the rape he committed occurred outside the boundaries of the Keweenaw Bay Indian Reservation, on private land not within "Indian country."

In accordance with 28 U.S.C. § 636(b), the district court referred defendant's petition to a magistrate for proposed findings of fact and recommendations. The magistrate subsequently recommended that the petition be denied. The district court, after reviewing the magistrate's report and recommendation and the objections to the report filed by defendant, and upon de novo consideration of the issues presented, adopted the report and recommendation and denied defendant's petition for habeas corpus. Defendant appeals the decision of the district court. Finding no error in the district court's disposition of the issues raised, we affirm.

I.

Defendant, a Chippewa Indian who resided on the Keweenaw Bay Indian Reservation, was convicted for the rape of his 13-year-old niece "on and within the Keweenaw Bay Indian Reservation and within the Indian country," in Baraga County, Michigan. Defendant was sentenced to 30 years' imprisonment and his conviction was subsequently affirmed on appeal. United States v. Cardinal, 782 F.2d 34 (6th Cir.), cert. denied, 476 U.S. 1161, 106 S.Ct. 2282, 90 L.Ed.2d 724 (1986). The statute under which Cardinal was indicted, charged, and convicted provides that "[w]hoever, within the special maritime and territorial jurisdiction of the United States, commits rape shall suffer death, or imprisonment for any term of years or for life." 18 U.S.C. § 2031. ¹

The situs of the offense was an abandoned cabin known as the Delores Reynolds residence. ² The United States alleged that the crime occurred on an Indian reservation and, thus, within the territorial jurisdiction of the United States. Jurisdiction was based on 18 U.S.C. §§ 1151 and 1153. Defendant concedes that the Major Crimes Act grants federal jurisdiction over crimes of the nature charged against him if the crime was committed within "Indian country" as defined by 18 U.S.C. § 1151, which provides in pertinent part:

[T]he term "Indian country" ... 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.

Defendant's assertion that the sentencing court lacked jurisdiction is premised upon the argument that the Reynolds property is private property not within "Indian country" as defined by 18 U.S.C. § 1151. Cardinal's position is that the Reynolds property was sold to the State of Michigan pursuant to the Canal Act of 1852, 10 Stat. 35 (1852), before the La Pointe Treaty of 1854 created the Keweenaw reservation for the Chippewas. 10 Stat. 1109. Therefore, the Reynolds property is not part of the reservation, argues defendant, and is not Indian country under 18 U.S.C. § 1151(a).

According to defendant, the Reynolds property was a part of 750,000 acres of land granted by Congress to the State of Michigan for the construction of a proposed canal on the Saint Mary's River at Sault Ste. Marie, Michigan. Section 2 of the Canal Act of 1852 provides:

That there be, and hereby is granted to the said State of Michigan, for the purpose of aiding said State in constructing and completing said canal, seven hundred and fifty thousand acres of public lands, to be selected in subdivisions, agreeably to the United States surveys, by an agent or agents to be appointed by the Governor of said State, subject to the approval of the Secretary of the Interior, from any lands within said State, subject to private entry.

10 Stat. 35 (1852). These lands were to be used exclusively for aiding in the construction of the proposed canal. Section 2 explicitly provides that land selections must be made by agents appointed by the Governor of Michigan and that these selections must be approved by the Secretary of the Interior.

Article 2 of the La Pointe Treaty of 1854 provides:

The United States agree to set apart and withhold from sale, for the use of the Chippewas of Lake Superior, the following described tracts of land, viz:

1st. For the L'Anse and Vieux De Sert bands, all the unsold lands in the following townships in the State of Michigan: Township fifty-one north range thirty-three west; township fifty-one north range thirty-two west; the east half of township fifty north range thirty-three west; the west half of township fifty north range thirty-two west, and all of township fifty-one north range thirty-one west, lying west of Huron Bay....

10 Stat. 1109 (1855) (emphasis added). The 1854 La Pointe Treaty was ratified on January 10, 1855, and proclaimed on January 29, 1855.

It is undisputed that the Reynolds property is located in township fifty-one north range thirty-three west (township 51-33). Thus, the crime occurred within the boundary of lands identified in the treaty as set aside for the use of the Chippewas. The question presented, then, is whether the Reynolds property was among "unsold lands" at the time of the 1854 treaty and, therefore, actually set aside as reservation land for the Chippewas or sold as canal lands prior to the date the treaty became effective.

In his effort to resolve this question, the magistrate reviewed the history of the L'Anse Band of the Chippewa Indians. A study of the history of the Keweenaw Bay Indian Reservation prepared by Mark Keller for the Bureau of Indian Affairs, entitled "The Canal Lands of Keweenaw Bay," was submitted by the government to the magistrate and is part of the record below. According to the Keller report, the 51-33 land selections were not approved by the Secretary of the Interior until January 24, 1855, and the patents for these lands were not delivered to the State of Michigan until May 25, 1855. Further, the Keller report contends that these lands could not be transferred by Michigan to the canal company under contract to build the canal until the canal was completed and accepted by Michigan, which occurred on May 21, 1855. Therefore, according to the Keller report, the canal lands referred to in the Canal Act of 1852 were not "sold" until May 21 or 25, 1855, after the treaty of 1854 had been ratified on January 10, 1855. ³

The Keller report acknowledged that, although title to the 51-33 lands should have remained with the Indians, portions of these lands were nevertheless claimed by Michigan and the canal company pursuant to the Canal Act. Further, the records in the office of the Register of Deeds for Baraga County show that Michigan issued a patent for the Reynolds property to the "St. Mary's Falls Ship Canal Company" on May 25, 1855, and that all subsequent deeds to the property followed unchallenged from this patent.

Upon reviewing the magistrate's report and recommendation, which relied in part on the Keller report, the district court concluded that, even assuming the Reynolds property was canal land, canal lands were not sold prior to the effective date of the 1854 treaty and, thus, were part of the Keweenaw reservation. The district court further concluded that, to the extent that the canal lands were sold before the 1854 treaty became effective, that fact did not impact upon whether the lands were "Indian country" for the purposes of federal subject matter jurisdiction.

On appeal, the issues are: (1) whether the Reynolds property was sold prior to January 10, 1855, the effective date of the 1854 treaty, and thus not granted to the Chippewas as reservation land by the terms of that treaty; and (2) whether, assuming arguendo that the subject parcel had been sold prior to the effective date of the 1854 treaty, the Reynolds property is nevertheless "within the limits" of the Keweenaw reservation for purposes of section 1151 jurisdiction.

II.

An appellate court renders de novo review of a habeas proceeding in the district court. See Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir.1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990). Although we review de novo Cardinal's claim that the sentencing court lacked subject matter jurisdiction over the crime of which he was convicted, we apply a clearly erroneous standard of review to any findings of fact made by the district court. McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 (1989).

Although Cardinal maintains that the rape occurred "outside the boundaries" of the reservation because the Reynolds property is private property, we conclude that the...