Latender v. Israel, 77-2229

• Decision Date: 19 September 1978
• Docket Number: No. 77-2229,77-2229
• Parties: John Mark LATENDER, Petitioner-Appellant, v. Thomas ISRAEL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 817

584 F.2d 817

John Mark LATENDER, Petitioner-Appellant, v. Thomas ISRAEL, Warden, Respondent-Appellee.

No. 77-2229.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 1978.

Decided Sept. 19, 1978.

Milton D. Rosenberg, University of Wisconsin, Law School, Madison, Wis., for petitioner-appellant.

John D. Niemisto, Wisconsin Dept. of Justice, Madison, Wis., for respondent-appellee.

Before PELL and TONE, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

TONE, Circuit Judge.

In this habeas corpus action petitioner, an enrolled member of the Menominee Indian Tribe now serving a term in a Wisconsin prison for burglary and murder committed on the Menominee Reservation, contends that Wisconsin had no jurisdiction to try and punish him. The District Court denied the writ, and we affirm.

Effective March, 1, 1976, after the events in issue here, Wisconsin retroceded its criminal jurisdiction over the Menominee Reservation to the United States pursuant to 25 U.S.C. § 1323. State ex rel. Pyatskowit v. Montour, 72 Wis.2d 277, 240 N.W.2d 186, 187-188 (1976). We are here concerned with the period after December 22, 1973, the effective date of the Menominee Restoration Act, discussed below, and before the retrocession, the offenses for which petitioner was convicted having been committed during that period.

The courts and federal authorities that have addressed the question of Wisconsin's criminal jurisdiction over the Menominees during that period have concluded that jurisdiction existed. The Supreme Court of Wisconsin so decided in State ex rel. Pyatskowit v. Montour, supra, ¹ and so did the same District Court from which this appeal is taken, in Application of Nacotee, 389 F.Supp. 784 (E.D.Wis.1975), Remanded, 525 F.2d 694 (7th Cir. 1975) (with directions to vacate as moot because the petitioner had been tried and acquitted of the offense by the state court). In the case at bar the District Court relied upon Nacotee In denying the writ. In the Pyatskowit case, the court stated that the position of both the United States Bureau of Indian Affairs and the United States Department of Justice was that state criminal jurisdiction survived the effective date of the Restoration Act, although their theories of why this was so differed. ²

18 U.S.C. § 1162 provides that Wisconsin shall have "jurisdiction over offenses committed by or against Indians in . . . (a)ll Indian country within the state," and that 18 U.S.C. §§ 1152 and 1153, which extend federal criminal law to major crimes by Indians in Indian country, are inapplicable in Wisconsin. ³ The language of § 1162 is unambiguous and leaves no room for cavil. At the time relevant here it applied to crimes committed by a Menominee Indian on the Menominee Reservation unless it had been repealed by implication with respect to such crimes.

Petitioner argues that state jurisdiction was terminated by the Menominee Restoration Act of 1973, 87 Stat. 770, 25 U.S.C. §§ 903-903f. In order to understand this argument it is necessary to examine the legislation affecting the Menominees beginning in 1953. In August of that year Congress adopted Public Law 83-280, 67 Stat. 588, which, as amended, became present 18 U.S.C. § 1162. Public Law 280 gave certain states, including, as we have said, Wisconsin, jurisdiction over crimes committed by or against Indians in Indian country within the state, with specified exceptions in some of the named states. As originally adopted, the statute excepted the Menominee Reservation from the grant of jurisdiction to Wisconsin. The Menominee exception is explained in the legislative history as based on a statement by the tribe "that its tribal police organization was capable of maintaining order on the reservation and that its people are not yet ready to be subjected to State laws." Letter from the Assistant Secretary of the Interior to the Chairman of the House Committee on Interior and Insular Affairs, quoted in Sen.Rep.No.699, 83rd Cong., 1st Sess. 7. Exceptions for other Indian tribes in several other states were similarly explained.

On June 17, 1954, Congress adopted the Menominee Termination Act, 68 Stat. 250, former 25 U.S.C. §§ 891-902. The purpose of that Act was "to provide for orderly termination of Federal supervision over the property and members of the Menominee Indian Tribe of Wisconsin." Former 25 U.S.C. § 891. The Act provided for transfer of the Menominees' assets, then held in federal trust, to a newly formed corporation to be controlled by the Menominees. Former 25 U.S.C. §§ 893, 896, 897, 899. Section 10 of the Act provided that, once title to the property passed from the federal government to the tribal corporation,

all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.

Former 25 U.S.C. § 899. Transfer of the Menominee property to the tribal corporation was not effected until April 30, 1961, and therefore the provision just quoted, making Menominees subject to state law, had not become effective by the time of the passage of the next statute affecting the Menominees, to which we now turn.

On August 24, 1954, Congress amended 18 U.S.C. § 1162 to strike the Menominee exception, thus making crimes committed by or against members of the tribe on the reservation subject to Wisconsin law. 68 Stat. 250. The amendment was adopted at the behest of the Menominee Tribe, which had "reconsidered its position" with respect to subjection to state law and had requested the removal of the exception from § 1162. House Rep. 2322, 83rd Cong., 2nd Sess. 1 (1954).

The amendment striking the Menominee exception from 18 U.S.C. § 1162 thus became effective some two months after the adoption of the Menominee Termination Act. The provisions of the Termination Act ceding criminal jurisdiction to Wisconsin, which would have accomplished the same result as the Menominee amendment to § 1162, were not to become effective until the transfer of property, which, as noted above, did not take place until April, 1961.

The next chapter of relevant history, relevant because it sheds some light on the relationship between § 1162 and the Menominee Termination Act, concerns the hunting, trapping, and fishing rights of the Menominees. Public Law 280 contained a provision, which appears in 18 U.S.C. § 1162(b), that nothing in the Act should "deprive any Indian or any Indian tribe . . . of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof." After the Menominee Termination Act went into effect, Wisconsin sought to enforce its game laws against the Menominees, who thereupon filed suit in the United States Court of Claims seeking just compensation for the taking, by the Menominee Termination Act, of rights secured to them by the Treaty of Wolf River in 1854, 10 Stat. 1064. The court dismissed the complaint on the ground that the Termination Act had not deprived the Menominees of the hunting, trapping, and fishing rights guaranteed them by the Treaty of Wolf River. Menominee Tribe v. United States, 388 F.2d 998, 179 Ct.Cl. 496 (1967). The Supreme Court affirmed in an opinion by Justice Douglas, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), in which he referred to Public Law 280 and the provision just quoted and said,

Public Law 280 must therefore be considered In pari materia With the Termination Act. The two Acts read together mean to us that, although federal supervision of the tribe was to cease and all tribal property was to be transferred to new hands, the hunting and fishing rights granted or preserved by the Wolf River Treaty of 1854 survived the Termination Act of 1954.

Id. at 411, 88 S.Ct. at 1710 (footnote omitted). ⁴

In December, 1973, Congress repealed the Termination Act by enacting the Menominee Restoration Act, 87 Stat. 770, 25 U.S.C. §§ 903-903f, which petitioner contends restored federal jurisdiction over offenses committed by or against Menominees on the reservation. The 1973 Act provided for resumption of tribal status and the return of tribal assets to federal trusteeship. The provisions pertinent here are paragraphs (b) and (c) of § 3, 25 U.S.C. §§ 903a(b) and (c):

(b) The Act of June 17, 1954 (68 Stat. 250; 25 U.S.C. §§ 891-902), as amended, is hereby repealed and there are hereby reinstated all rights and privileges of the tribe or its members under Federal treaty, statute, or otherwise which may have been diminished or lost pursuant to such Act.

(c) Nothing contained in this Act shall diminish any rights or privileges enjoyed by the tribe or its members now or prior to June 17, 1954, under Federal treaty, statute, or otherwise, which are not inconsistent with the provisions of this Act.

It is this language that determines whether Wisconsin's jurisdiction over crimes committed by or against an Indian on the Menominee Reservation was terminated by the Restoration Act.

In an attempt to invoke the "pursuant to (the Termination) Act" language of paragraph 3(b), petitioner argues that the state's criminal jurisdiction rested on 18 U.S.C. § 1162 only from August 24, 1954, the date of the amendment deleting the Menominee exception from that section, until April 30, 1961, the date the Termination Act became effective, and that thereafter the state's jurisdictional base shifted to the language of § 10 of that Act making "the laws of the several States" applicable to the tribe and its members. Petitioner also refers to the provision in § 10 of the Termination Act which states that, upon the effective date of termination, all federal statutes that affect Indians because of their status as Indians should no longer apply to the Menominees,...