Ellis v. State

• Decision Date: 16 October 1963
• Docket Number: No. A-13282,A-13282
• Parties: Nathan Jerry ELLIS, Petitioner, v. The STATE of Oklahoma, and R. R. Raines, Warden, Oklahoma State Penitentiary, Respondents.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 326

386 P.2d 326

Nathan Jerry ELLIS, Petitioner, v. The STATE of Oklahoma, and R. R. Raines, Warden, Oklahoma

State Penitentiary, Respondents.

No. A-13282.

Court of Criminal Appeals of Oklahoma.

Oct. 16, 1963.

Syllabus by the Court

1. Whether the place where a crime occurs is a part of an Indian reservation and therefore Indian country within the meaning of 18 U.S.C.A. § 1151, defining the term 'Indian country', and of 18 U.S.C.A. § 1153 providing that the offenses specified therein, if committed within Indian country, are within the exclusive jurisdiction of the United States, depends upon the interpretation and application of federal law.

2. Where tribes occupying reservation ceded lands embraced within it to United States, relinquishing and surrendering all their claim, title and interest subject to allotments in severalty, and every allottee was given benefit of and made subject to laws, both criminal and civil, of state or territory, with gift of citizenship and equal protection of laws, Congress thereby intended to dissolve tribal reservation, and assimilate the Indians as citizens of state or territory. O.S.1961 Const. Art. 1, § 3; 18 U.S.C.A. §§ 1151-1153.

3. Deliberate choice of phrase 'within any Indian reservation under the jurisdiction of the United States Government' by Congress in determining the term 'Indian country' indicated a congressional disposition to restrict federal jurisdiction to organized reservations lying within a state. 18 U.S.C.A. § 1151.

4. Even if petitioner was a full-blooded Indian and person he was accused of killing was a person of Indian blood, he was not entitled to release from prison on petition for writ of habeas corpus on ground that state court was without jurisdiction to impose sentence when Indians had ceded land on which crime was committed to the United States subject to allotment in severalty to individual members of the tribe, and lands had thereby lost their character as lands within an 'Indian Reservation', within meaning of statute defining Indian country. O.S.1961 Const. Art. 1, § 3; 18 U.S.C.A. §§ 1151-1153.

Original proceeding in which petitioner seeks his release from confinement in the Oklahoma State Penitentiary by writ of habeas corpus. Writ denied.

Ralph Samara, Oklahoma City, for petitioner.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for respondents.

PER CURIAM.

This is an original petition for habeas corpus brought by Nathan Jerry Ellis, an inmate of the Oklahoma State Penitentiary, McAlester, Oklahoma.

In said petition it is alleged that the petitioner is restrained of his liberty under a void proceeding, judgment and sentence entered against him in the district court of Custer county, Oklahoma, for want of jurisdiction because the United States Congress by statute fixed exclusive jurisdiction in the United States courts in cases of this character. The foundation for this contention does not appear on the face of the record heretofore made in this case.

It appears that the prosecution was instituted on October 15, 1956 by information against said petitioner charging him with murder, allegedly committed on September 21, 1956. A severance was granted from his co-defendant, and petitioner was tried separately. On December 10, 1956 Ellis was convicted of murder and received a life sentence in the penitentiary. He appealed from said judgment and sentence, and on November 13, 1957 the conviction was reversed on grounds other than as now asserted herein. Ellis v. State, Okl.Cr., 318 P.2d 629. Thereafter he was again tried, and convicted of first degeree manslaughter and sentenced on February 17, 1958 to sixty years in the state penitentiary, from which judgment and sentence he appealed, and which was affirmed on October 22, 1958. Ellis v. State, Okl.Cr.App., 331 P.2d 415.

On July 5, 1960 a petition for writ of certiorari was filed in the United States Supreme Court, and the application therefor was denied on October 10, 1960.

An application for writ of habeas corpus was lodged in the United States District Court for the Eastern District of Oklahoma, which was denied on March 29, 1961. This case was thereafter appealed to the United States Circuit Court of Appeals, tenth circuit, and the judgment of the lower court was affirmed. Ellis v. Raines, 10 Cir., 294 F.2d 414.

There are several reasons why this action cannot be sustained. First, it appears that in all of the proceedings heretofore mentioned the exclusive jurisdiction of the United States courts was never raised at any time in the trial on the merits.

This proceeding was lodged with this Court on August 9, 1962, long after the three-year statute of limitations had barred further prosecution in either the state or federal courts.

Thus it would appear that Ex parte Wallace, 81 Okl.Cr. 176, 162 F.2d 205 would control this matter. That case holds:

'Where Indian pleads guilty to information charging rape in first degree and no jurisdictional question is raised until after more than three years have elapsed so as to bar prosecution in either state or federal court, the jurisdiction of the state court can not be challenged in collateral proceeding in habeas corpus on ground that land on which offense was committed was restricted Indian allotment and that the person assaulted was a restricted Indian.

'Where information charges crime of rape was committed in Cotton County, the jurisdiction of the court is an issue in the trial court; the plea of guilty by accused who appears with counsel and the finding of guilt and sentence of accused upon his plea of guilty is conclusive finding of jurisdiction and such finding may not be attacked in a collateral proceeding. An exception to this rule is where the petitioner asserts that his conviction was obtained by a denial to him of due process of law.' [Emphasis now supplied.]

But the rule in the Wallace case is subject to another restriction as to jurisdiction. It is axiomatic that in a case invoving an interpretation of federal statutes, this Court and all other state courts of last resort are bound by all pertinent applicable federal statutes and decisions to be controlling.

This is the principal issue for determination herein--does the matter lie within the exclusive jurisdiction of the federal courts or within the jurisdiction of the State of Oklahoma?

In his petition in support of the claim of lack of jurisdiction, it is asserted:

'Your petitioners * * * that they are enrolled, unemancipated members of the Cheyenne Indian tribe, wards of the Federal Government, listed on the tribal rolls at Cheyenne and Arapaho Indian sub-agency at Concho, Oklahoma, and that the deceased named in the foregoing information is also listed on the tribal rolls of the Cheyenne Indian Tribe, and that the 'alleged offense' for which the petitioners were tried and convicted, occurred on a county road, known as the Old Mill Road, approximately a mile sough of the city limits of the town of Clinton, in Custer County, and is within limits of the Cheyenne and Arapaho Indian Reservation. That 'Indian Reservation' as used in the several Acts of Congress means 'Indian country' as defined in 18 U.S.C.A. Sec. 1151.

* * *

* * *

'That crimes committed by Indians in 'Indian country' is an offense 'within the exclusive jurisdiction of the United States' under 18 U.S.C.A. sec. 1153, 18 U.S.C.A. sec. 1153, while there is Federal Legislation which permits a tribe to consent to State jurisdiction, only five tribes have availed themselves of it, that the Cheyenne Indian Tribe is not one of the five.'

The record supports the statement that this petitioner was carried on the roll of the Arapaho-Cheyenne Indian Agency, at Concho, Oklahoma, though the roll was not an official one, as testified to by James M. Hayes, real property officer...