Glover v. United States

• Decision Date: 10 June 1963
• Docket Number: No. 1039.,1039.
• Citation: 219 F. Supp. 19
• Parties: Archie Louis GLOVER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Montana

219 F. Supp. 19

Archie Louis GLOVER, Petitioner, v. UNITED STATES of America, Respondent.

No. 1039.

United States District Court D. Montana, Missoula Division.

June 10, 1963.

John D. French (appointed), Ronan, Mont., for petitioner.

Moody Brickett, U. S. Atty., for respondent.

MURRAY, Chief Judge.

By order dated May 15, 1963, this court authorized the petitioner Archie Louis Glover to proceed in forma pauperis with a motion for a Writ of Habeas Corpus, and appointed John D. French, an Attorney at Law of Ronan, Montana, to represent the said petitioner.

In his petition, petitioner alleges that he was taken into custody within the exterior boundaries of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation. The petition further alleges: "Defendant is incarcerated by Confederated Salish and Kootenai Tribes, Of The Flathead Indian Agency, Dixon, Montana, and was sentenced by, Tribal Judge, Honorable, Mrs. Josephine Neuman, for Driving While Intoxicated, sentence to (3) three months — ($180.00) One hundred and eighty dollar fine, no Driver's License, sentence to ($12.50) twelve fifty fine, Petty Larceny, sentence to (6) six months — ($150.00) One hundred and fifty dollar fine, on the 3rd day of May, 1963. Sentences run Consectively."

As grounds for his petition for Writ of Habeas Corpus, he alleges that he had "positively no recourse to appeal to higher tribal court within the exterior boundaries of the Confederated Salish and Kootenai Tribes, of the Flathead Indian Reservation", and that he had "positively no proper legal counsel made available, therefore defendant's constitutional rights were denied by lack of legal counsel".

Appointed counsel, after investigating the case, advised the court that in his opinion the petition was without merit, and after reviewing the law, the court must agree with counsel's conclusion.

Petitioner is a member of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation. He raises no question as to the existence of the Tribe, and his counsel acknowledges that the Tribe is a duly chartered and incorporated tribe under the provisions of the Wheeler-Howard Act of 1934 (48 Stat. 984; 25 U.S.C.A. §§ 476, 477), which has set up its own system of tribal courts and has adopted a penal code covering the offenses of which petitioner was convicted.

It has long been settled that, except where withdrawn by Congress in the exercise of its plenary powers over Indian affairs, jurisdiction of criminal offenses by Indians in the Indian country rests with the Indian Tribes. Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030; Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196; Iron Crow v. Ogallala Sioux Tribe, 129 F.Supp. 15, D.C.W.D.S.D., affirmed 8 Cir., 231 F.2d 89; United States v. LaPlant, D.C.Mont., 156 F.Supp. 660. In 1885, Congress passed what has now become know as the Ten Major Crimes Act, which withdrew from Indian Tribes jurisdiction of certain crimes and vested jurisdiction of those crimes, when committed by an Indian in Indian country, exclusively in the federal courts. In re Carmen's Petition, D.C.N.D.Cal.S.D., 165 F.Supp. 942, affirmed Dickson v. Carmen, 9 Cir. 270 F.2d 809; Iron Crow v. Ogallala Sioux Tribe, supra; United States v. LaPlant, supra. The crimes now included in the Ten Major Crimes Act, of which the tribes are divested of jurisdiction and of which jurisdiction rests in the federal courts are murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery and larceny. 18 U.S.C.A. §§ 1153, 3242. However, withdrawal of tribal jurisdiction as to these major crimes left tribal jurisdiction as to other crimes undisturbed. United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196; United States v. Jacobs, D.C.E.D.Wis., 113 F.Supp. 203; State v. McClure, 127 Mont. 534, 268 P.2d 629; Iron Crow v. Ogallala Sioux Tribe, supra; United States v. LaPlant, supra.

Therefore, it appears that as to at least two of the offenses with which petitioner was charged, i. e., driving while intoxicated and no driver's license, jurisdiction remains in the tribe, and the tribal court could properly exercise jurisdiction with reference to those offenses. As to the third offense for which petitioner was sentenced, petty larceny, it would seem that the tribal court would be without jurisdiction of that offense, if petty larceny is included within the meaning of the term "larceny" as used in Sections 1153 and 3242. However, this need not be decided now for reasons which will become apparent.

According to his petition, petitioner was sentenced May 3, 1963, to three months on the charge of driving while intoxicated. He alleges the sentences on the driving while intoxicated charge and the petty larceny charge were to run consecutively. Even if the petty larceny sentence were to be found invalid, petitioner would not be entitled to release if the driving while intoxicated sentence is valid because the sentence on that latter charge has not yet expired. Habeas Corpus will not lie to attack a sentence which has not yet begun to run. McNally v. Hill, 293 U.S. 131, 138, 55 S.Ct. 24, 79 L.Ed. 238; United States ex rel. Parker v. Ragan, C.A. 7, 167 F.2d 792. See also Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 3 L.Ed. 2d 407, and Miller v. United States, C.A. 9, 256 F.2d 901. Therefore, if petitioner's sentence for the offense of driving while intoxicated is valid, he is not entitled to the writ.

Petitioner alleges he was denied his constitutional rights in the tribal court by reason of the denial of an appeal and the failure to make counsel available to him. Due process does not necessarily require an appeal (12 Am. Jur. "Constitutional Law" Sec. 638, p. 327, 328), but assuming that in given circumstances due process does require the right of appeal, the right to due process is protected by the Fifth and ...