People v. Cook

• Decision Date: 24 February 1975
• Citation: 81 Misc.2d 235,365 N.Y.S.2d 611
• Parties: The PEOPLE of the State of New York v. Horace COOK.
• Court: New York County Court

Page 611

365 N.Y.S.2d 611

81 Misc.2d 235

The PEOPLE of the State of New York v. Horace COOK.

Onondaga County Court.

Feb. 24, 1975.

Jon K. Holcombe, Dist. Atty. of Onondaga County, John M. Shannon, Syracuse, of counsel, for the People.

Omar Z. Ghobashy, New York City, for defendant Cook.

DECISION

WILLIAM J. BURKE, Judge.

This motion was originally brought on by a Show Cause Order returnable before the Court on October 21, 1974. Prior to that time the Onondaga County Grand Jury had returned indictments numbered 74--331, 332, which charged 6 defendants with various crimes that were alleged to have occurred on the 23rd day of July, 1974. The place of the alleged crimes was on the property of the Onondaga Indian Reservation, which is located entirely within the County of Onondaga, State of New York.

The incident was the culmination of an attempt by the Council of Chiefs of the Onondaga Nation to remove non-Indians from living on tribal lands (Onondaga Indian Reservation).

The beginning of this controversy, (non-Indians living on the Reservation) began when the Council of Chiefs asked an Indian landlord to tell his all white tenant family to move and vacate property from which they have resided for a number of years. This prompted the discussion of other 'white' people living on the Reservation and should they also be forced to leave.

This question of non-Indians living on the Reservation had come up in the past. In 1922 and again in 1968 it was passed in council that non-Indians would be asked to leave, with the exception of those already there and married to Indians.

In March of 1974 the Council of Chiefs unanimously passed a law to bar all non-Indians from the reservation, regardless of tenure or family affiliations.

Removal notices were served on all non-Indians and the Council of Chiefs requested the help of the United States Department of Justice. The Justice Department after reviewing the matter determined that the removal should be handled by the State of New York through the local District Attorney's office.

On June 28, 1974 the Onondaga District Attorney in a letter to the Council of Chiefs offered his help in effecting this removal pursuant to Section 8 of the N.Y.S. Indian Law.

On July 23, 1974, with no attempt by the Council of Chiefs to invoke the aid of Section 8 of the N.Y.S. Indian Law the warriors, chiefs, clanmothers and supporters moved from one home to another physically removing families of non-Indians, resulting in the alleged threats and forceful entries that produced the indictment now under consideration by this Court.

The Order to Show Cause was summarily denied by this Court on its return date as none of the defendants had been arraigned under the several indictments.

It was thereafter agreed by the Court that one defendant, namely Horace Cook, would appear and be arraigned under indictment #74--331, and that the Court would then consider the many points raised by the defendant in the original Show Cause Order and treat the application as a motion to dismiss.

This agreement by the Court the have defendant Cook appear was effected by certain members of the Council of Chiefs, their attorney and this Court in a meeting held on the Onondaga Reservation with the understanding that the Court would rule on the defendant's motion to dismiss and would further allow members of the Council of Chiefs to be heard orally or in written application addressed to the merits of this problem. These chiefs in the meetings with the Court agreed to produce the other, defendants in court voluntarily, if such was necessary, without the need of police agencies going out to the Onondaga Reservation to serve warrants of arrest.

No oral arguments were heard by the Court, as the parties agreed to submit written briefs on their respective positions. The brief of the defendant was not received until January 15, 1975, due to the illness of the defendant's attorney, and in addition to the brief of the defendant the Court was furnished an Amicus Curiae Memorandum from the California Indian Legal Services. No independent statement from the Council of Chiefs was received by the Court.

It is with this background that the following decision is rendered.

POINT I.

The defendant contends, first of all, that this indictment should be dismissed for the reason that each count fails to state sufficient facts to constitute an offense against the law of the State of New York.

Although the defendant does not specifically state, § 200.50(7) of the Criminal Procedure Law sets out what an indictment must contain. § 200.50(7) requires:

'A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the offense charged and the defendant's or defendants' commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation.'

This statute imposes a greater duty upon the People to plead the facts constituting the alleged crime with precision and particularity than was imposed upon them under the predecessor statute (Code of Criminal Procedure § 275(2)). That statute required merely:

'A plain and concise statement of the act constituting the crime, without unnecessary repetition.'

This Court has reviewed the factual allegations of both indictments and finds that they meet the requirements of § 200.50(7). This defendant, as well as the other defendants, have been sufficiently apprised of the conduct which is the subject of the accusations against them.

POINT II.

The defendant's second argument contends that the indictment should be dismissed for lack of jurisdiction and improper venue.

The basis of this contention arises from the early days of the country's history and the view of Indians and the consequence of Indian Treaties wherein the concept of Indian sovereignty was historically rooted and set out in order to assure the members of the various Indian Nations that their right to self-government over their internal affairs would be preserved.

The concept of leaving Indians free from State jurisdiction and control is deeply rooted in our nation's history. This policy was first articulated by the Supreme Court approximately 143 years ago when Chief Justice Marshall held that Indian Nations were 'distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.' (Worcester v. Georgia, 6 Pet. 515, 557, 8 L.Ed. 483 (1832)). It followed from this concept of Indian Reservations as separate, although dependent Nations, that state law could have no role to play within the Reservation boundaries. However, this doctrine has undergone considerable evolution in response to changing times, as the landmark case of Williams v. Lee, 358 U.S. 217, 218, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) clearly states that as a result of conquests and treaties the Indians were induced to give up complete independence in exchange for federal protection, aid and grants of land.

It was at this point in our history that a tremendous conflict relating to the right to control matters relative to Indians arose between the Federal government and the various state governments when the land set aside for Indian reservations fell within the borders of the states. The Federal government argued that it derives its power to deal with Indian affairs from our Constitution, Art. I, Sec. 8, Cl. 3, and that essentially the State's power to deal with Indian affairs must be manifested by and through the Acts of Congress. However, since the days of this conflict, as stated in Williams v. Lee, Supra, 358 U.S. at pp. 220, 221, 79 S.Ct. at p. 271:

'Congress has followed a policy calculated eventually to make all Indians full-fledged participants in American society. This policy contemplates criminal and civil jurisdiction over Indians by any State ready to assume the burdens that go with it as soon as the educational and economic status of the Indians permits the change without disadvantage to them . . . Significantly, when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. Georgia has denied.'

The Congress of the United States in furtherance of this purpose granted to the State of New York criminal jurisdiction over New York Indian Reservations (62 Stat. 1224, 25 U.S.C. Sec. 232). This section states in part that:

'The State of New York shall have jurisdiction over offenses committed by or against Indians on Indian reservations within the State of New York to the same extent as the courts of the State have jurisdiction over offenses committed elsewhere within the State as defined by the laws of the State.'

Additionally, under New York State Indian law, (Sec. 8), jurisdiction over disputes arising from intrusions on Tribal Lands is vested in the county judge of the county in which those lands are situated.

Therefore, as to this point, it it apparent that the Courts of the State of New York have the jurisdiction to consider criminal charges arising out of conduct committed on Indian lands located within the state.

POINT III.

The defendant further contends that the facts alleged in the indictment are not within the provisions of Penal Law, Arts. 135 and 140.

Relative to this contention, the facts alleged in these indictments do fall within the above two Articles. There still remains, however, for trial proof by the People establishing beyond a reasonable doubt that the defendant did, in fact, commit acts alleged in the instant indictments, in such a manner as to become criminally liable therefor.

POINT IV.

The defendant contends also that the indictments should be dismissed because 25 U.S.C. Sec. 232 is unconstitutional, being in violation of treaties between the Indians...