Anderson v. Gladden

• Decision Date: 13 October 1960
• Docket Number: Civ. No. 60-33.
• Citation: 188 F. Supp. 666
• Parties: James Quinten ANDERSON, Petitioner, v. C. T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.
• Court: U.S. District Court — District of Oregon

188 F. Supp. 666

James Quinten ANDERSON, Petitioner, v. C. T. GLADDEN, Warden, Oregon State Penitentiary, Respondent.

Civ. No. 60-33.

United States District Court D. Oregon.

October 13, 1960.

COPYRIGHT MATERIAL OMITTED

Edward L. Clark, Jr., Salem, Or., Philip A. Levin, Portland, Or., for petitioner.

Robert Y. Thornton, Atty. Gen., of Oregon, Robert G. Danielson, Asst. Atty. Gen., for respondents.

C. E. Luckey, U. S. Atty., Portland, Or., for intervenor.

KILKENNY, District Judge.

This cause is before the Court on petitioner's amended petition for a writ of habeas corpus and on respondent's motion to dismiss such amended petition.

Petitioner was found guilty of the crime of murder in the second degree by a jury verdict returned on the 25th day of February, 1955, in the Circuit Court of the State of Oregon for Harney County, on which verdict petitioner was sentenced to life imprisonment in the Oregon State Penitentiary on the 1st day of May, 1955. The victim was a white man.

Petitioner is of Indian blood and at all times was and is an enrolled member of the Klamath tribe of Indians and resided on the Klamath Indian Reservation in Klamath County, Oregon. The crime of which the petitioner was convicted was committed within the boundaries of said Indian Reservation.

Petitioner asserts that his imprisonment is in violation of his rights and privileges in the following particulars:

A. The government of the United States has exclusive jurisdiction over crimes committed by Indians within Indian country.

B. Congress could not legally delegate jurisdiction over crimes committed by Indians within Indian country to the state of Oregon.

C. The state of Oregon could not legally exercise jurisdiction over crimes committed by Indians within Indian country.

D. The state of Oregon failed to take any steps to accept the jurisdiction purportedly conferred upon it by Congress over crimes committed by Indians within Indian country.

E. In any event, Congress could not legally delegate and the state of Oregon could not properly accept jurisdiction over such crimes until the termination of the Klamath Indian Reservation had taken place.

Petitioner charges that his other remedies have been exhausted by reason of the following:

1. His appeal from his original judgment of conviction to the Supreme Court of the State of Oregon and the affirmation by that Court of his conviction. State v. Anderson, 207 Or. 675, 298 P.2d 195, 60 A.L.R.2d 850.

2. His filing on June 13, 1956, of a petition for writ of habeas corpus against the Sheriff of Klamath County, Oregon, in which proceeding relief was denied by judgment entered on or about July 10, 1956.

3. His appeal from said judgment denying relief to the Supreme Court of the State of Oregon, which judgment was affirmed by said Court on November 13, 1957. Anderson v. Britton, 212 Or. 1, 318 P.2d 291.

4. His petition for writ of certiorari to the Supreme Court of the United States to review the said decision of the Oregon Supreme Court, which petition was denied on May 19, 1958 (356 U.S. 962, 78 S.Ct. 999, 2 L.Ed.2d 1068).

I hold that petitioner has exhausted his remedies in the state court. The denial of the writ of certiorari by the United States Supreme Court is of no significance on the merits of this case. Brown v. Allen, 1953, 344 U.S. 443, 448-497, 73 S.Ct. 397, 437, 97 L.Ed. 469; Graeber v. Rhay, 9 Cir., 1958, 256 F.2d 556.

The matters asserted in said habeas corpus proceedings before the Oregon courts were identical with the matters herein set forth in petitioner's amended petition. In my judgment the exhaustive and scholarly opinion of Justice Kester in Anderson v. Britton, supra, quite adequately disposes of petitioner's contentions, and under ordinary circumstances, I would be inclined to adopt that opinion as my own. However, petitioner has challenged the rationale of said opinion in many particulars and I feel he is entitled to this court's opinion on those subjects. A complete factual background may be obtained from State v. Anderson, supra, and Anderson v. Britton, supra.

Petitioner's contentions as set forth in his petition are reduced in his brief to two questions of law:

1. (a) Can Congress, while the Klamath Indian Reservation continues in existence, legally delegate jurisdiction to the state of Oregon over crimes committed by Indians within that jurisdiction.

(b) Is Congress barred by the Klamath Indian treaty from delegating jurisdiction to the state of Oregon before termination of the Klamath Reservation pursuant to the provisions of 25 U.S.C.A. §§ 564-564x.

2. Assuming, arguendo, that Congress may legally delegate jurisdiction to the state of Oregon while the Reservation is in existence, is such a delegation self-executing, or does it require an affirmative acceptance by the state of Oregon.

The problem cannot be solved without recourse to the source of the power of the federal government.

The federal union has only those powers expressly conferred on it and those reasonably implied from powers granted, while each state has all governmental powers except such as the people, by the Constitution, have conferred on the United States, denied to the state or reserved to themselves. United States v. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L.Ed. 477; Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603; Knapp v. Schweitzer, 357 U.S. 371, 78 S. Ct. 1302, 2 L.Ed.2d 1393. The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted only by the action of Congress in conformity with the provisions of the Constitution. Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248; Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226; Romero v. International Terminal Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368. In the state of Oregon the common law of England was adopted as it existed, modified and amended by the English statutes passed prior to the Revolution. Peery v. Fletcher, 93 Or. 43, 182 P. 143; United States Fidelity & Guaranty Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A.L.R. 829; State v. Black, 193 Or. 295, 236 P.2d 326. Murder was a crime at common law. 1 Wharton, Criminal Law, 12th ed., p. 624, § 418. There are no common-law crimes against the United States. Donnelley v. United States, 276 U.S. 505, 511, 48 S.Ct. 400, 72 L.Ed. 676; United States v. Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L. Ed. 591.

When the Colonies achieved their independence, each one took the prerogatives which had belonged to the Crown and when the national Constitution was adopted, certain of those prerogatives were imparted to the new government as an incidence of the sovereignty thus created. United States v. Thompson, 98 U.S. 486, 25 L.Ed. 194. The prerogatives of the Crown, which devolved upon the people of the states when the states declared their independence, remained with them, except insofar as they have delegated a portion thereof to the federal government. The state, as the sovereign, is in parens patriae. Fontain v. Ravenel, 17 How. 369, 58 U.S. 369, 15 L.Ed. 80. The successful termination of the War of Independence placed on the people of the thirteen original states the duties as well as the powers which formerly vested in the British Crown. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 17 U.S. 518, 4 L.Ed. 629. Such powers and duties were in the people of the individual states from the Declaration of Independence to the enactment of the Constitution. McIlvaine v. Coxe's Lessee, 4 Cranch 209, 8 U.S. 209, 2 L.Ed. 598.

Even if the Provisional government of Oregon was "de facto" only, it was clothed, while it existed, with the same rights, duties and powers as a government "de jure." Lehigh Valley R. Co. v. State of Russia, 2 Cir., 1927, 21 F. 2d 396, certiorari denied 275 U.S. 571, 48 S.Ct. 159, 72 L.Ed. 432; Thorington v. Smith, 8 Wall. 1, 75 U.S. 1, 19 L.Ed. 361. The jurisdiction of a nation (Oregon) within its own territory is exclusive and absolute and is susceptible to no limitation not imposed by itself. The Exchange, 7 Cranch 116, 11 U.S. 116, 3 L. Ed. 287; Church v. Hubbart, 2 Cranch 187, 6 U.S. 187, 2 L.Ed. 249. Therefore, the jurisdiction of the courts of the Provisional government of Oregon was exclusive and absolute until that government was succeeded by the government of the Territory of Oregon and the government of the United States.

From the foregoing it is clear that whatever power the Congress has over Indians must be found in the Constitution and those powers must be originally derived from the states.

Prior to June 30, 1834, crimes committed by Indians against white persons and by white persons against Indians were specifically enumerated and defined and those by Indians against each other were left to be dealt with by each tribe for itself according to its local customs. Act of May 19, 1796 (1 Stat. 469, c. 30); Act of March 30, 1802 (2 Stat. 139, c. 13). On June 30, 1834, the Congress enacted what is commonly known as the Indian Intercourse Act (4 Stat. 729, 733, c. 161). The provisions now contained, with slight modifications, in 25 U.S.C.A. §§ 217 and 218, were contained in § 25 of said Indian Intercourse Act. These sections read:

§ 217. "Except as to crimes the punishment of which is expressly provided for in this title, the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country."

§ 218. "The preceding section shall not be construed to extend to crimes committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the

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