Ex parte Crosby

• Decision Date: 09 July 1915
• Docket Number: 2178.
• Citation: 149 P. 989,38 Nev. 389
• Parties: EX PARTE CROSBY.
• Court: Nevada Supreme Court

149 P. 989

38 Nev. 389

EX PARTE CROSBY.

No. 2178.

Supreme Court of Nevada

July 9, 1915

Charles H. Crosby was arrested for a violation of the fish and game laws, and he applies for habeas corpus. Writ denied.

M. B Moore, of Reno, for petitioner.

Edward F. Lunsford, Dist. Atty., and A. N. Salisbury, Asst. Dist Atty., both of Reno, for respondent.

McCARRAN J.

This is an original proceeding in habeas corpus. The petitioner Charles S. Crosby, was arrested within the boundaries of the Pyramid Lake reservation, the same being an Indian reservation in this state set apart by the United States government for the use and occupation of the Pah Ute Indians. Petitioner was charged with a violation of an act of the Legislature of the state of Nevada entitled:

"An act to provide for the protection and preservation of trout and other fish in the waters of the state of Nevada and other matters pertaining thereto," etc.

Section 9 of the act is as follows:

"It shall be unlawful for any person or persons, firm company, or corporation, to take, catch, or kill from any of the waters of the state of Nevada or to have in his, their or its possession, on any one calendar day, more than ten pounds of trout, or of land-locked salmon, or royal chinook salmon, or large-mouthed or small-mouthed black bass, or whitefish caught in the waters of this state; provided, that nothing in this act shall be so interpreted as to prevent or to prohibit the taking of ten trout, or salmon, or other fish specified in this act." Statutes of 1913, p. 436.

The facts as admitted are as follows: The petitioner, a white man and a citizen of this state, resided in and about Pyramid reservation, and was engaged in the business of buying fish from the Indians of the reservation and transporting them to places of market. At the time of his arrest, he was within the confines of the Pyramid reservation, and had in his possession more than 10 fish and more than 10 pounds of fish. It is admitted that the fish in the possession of petitioner at the time of his arrest were caught by individual Indians on the Pyramid Lake reservation. Petitioner, having been arrested, was tried before the nearest justice of the peace, to wit, in Wadsworth township, and was by said justice of the peace convicted and sentenced to pay a fine of $25 and to serve one day in the county jail of Washoe county.

It is the contention of petitioner that the fish and game laws of the state of Nevada are not operative, even as against persons not Indians, within the confines of Pyramid Lake Indian reservation, and that the justice of the peace of Wadsworth township--which embraces the said Pyramid reservation--did not have jurisdiction to hear the case, and that the same is a subject for the jurisdiction of the United States courts.

It is the contention of attorney for the respondent that the state of Nevada possesses power to control and regulate the taking of game and fish from all the public waters within the confines of this state, contending that the state has the power to regulate the taking of fish from Pyramid Lake by persons other than Indians, even though the said lake be within the Indian reservation.

The Pyramid Lake Indian reservation was definitely created, and the lands embraced therein withdrawn from sale or disposition, by order of President Grant on March 23, 1874, some 10 years after the admission of this state into the Union. We have been unable to find the existence of any treaty or agreement between the government and the Pah Utes, or other tribe of Indians, relative to or affecting the territory embraced within this reservation, either prior or subsequent to the admission of this state. The state has by no act of which we are aware ever relinquished jurisdiction over this territory.

It may be asserted as an established proposition of law that it is a right inherent in the state, as the sovereign power, to enact laws for the protection and preservation of fish and game in the waters and on the land within the confines of its territory. Wild fowl and fish in public waters are the subjects of public protection, control, and regulation, in so far as preservation is concerned, and he who takes such fish or game does so as a privilege, not a right, and the taking under the privilege thus accorded is subject to such conditions and limitations as the sovereign power of the state, speaking through its Legislature, has seen fit to impose. State v. Rodman, 58 Minn. 393, 59 N.W. 1098; State v. Northern Pacific Express Co., 58 Minn. 403, 59 N.W. 1100; Geer v. Connecticut, 161 U.S. 533, 16 S.Ct. 600. 40 L.Ed. 793; Magner v. People, 97 Ill. 333; Ex parte Maier, 103 Cal. 476, 37 P. 402, 42 Am. St. Rep. 129; Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6, 32 L.Ed. 346; Phelps v. Racey, 60 N.Y. 10, 19 Am. Rep. 140.

The Legislature of this state having enacted the statute sought to be enforced here, for the purpose of protecting and preserving the fish of the public waters of the state, the question here presented, in view of the admitted facts, resolves itself into the proposition as to whether or not a white man can disregard the provisions of the statute when his acts in such respect are done within the confines of an Indian reservation.

That the state courts have jurisdiction over offenses committed by parties other than Indians on Indian reservations is, we think, well established; and this general rule is not affected by a provision in the Enabling Act of a state taking account of Indian lands or Indian reservations within the territory or providing that such Indian lands should remain under the absolute jurisdiction and control of the Congress of the United States. Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419.

In the case of United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869, the Supreme Court of the United States said:

"Whenever, upon the admission of a state into the Union, Congress has intended to except out of it an Indian reservation, or the sole and exclusive jurisdiction over that reservation, it has done so by express words. The Kansas Indians, 5 Wall. 737 ; United States v. Ward, Woolw. 17 [Fed. Cas. No. 16,639]."

In that case it was held that a state, by its admission into the Union upon an equal footing with the original states, had, without an exception expressly set forth in the Enabling Act of admission, criminal jurisdiction over its own citizens and persons other than Indians on reservations throughout the whole of the territory within its limits, including an Indian reservation, even where such reservation existed prior to the organization and admission of the state. This decision, however, took into account such exceptions as might arise by reason of the express declaration on the part of Congress made in contemplation of existing treaties entered into between the Indians and the government prior to the admission of the state. Such a condition does not exist in the case at bar.

The Supreme Court of the United States, in the case of Pollard v. Hagan, 3 How. 212, 11 L.Ed. 565, and again in Shivley v. Bowlby, 152 U.S. 1, 14 S.Ct 548, 38 L.Ed. 331, definitely settled the proposition that, under the provisions of the federal Constitution, the rights and powers which belonged to the original 13 states, applicable to the public waters within their respective territories, must be conceded to each new state admitted into the Union, because...