Robinson v. Sigler, 37845

• Decision Date: 11 June 1971
• Docket Number: No. 37845,37845
• Citation: 187 N.W.2d 756,187 Neb. 144
• Parties: Enoch ROBINSON, Appellant, v. Maurice H. SIGLER, Warden Nebraska Penal Complex, Appellee.
• Court: Nebraska Supreme Court

Page 756

187 N.W.2d 756

187 Neb. 144

Enoch ROBINSON, Appellant, v. Maurice H. SIGLER, Warden Nebraska Penal Complex, Appellee.

No. 37845.

Supreme Court of Nebraska.

June 11, 1971.

Syllabus by the Court

1. When appellant committed the offense of murder, the State of Nebraska was exercising exclusive jurisdiction over criminal acts in Indian territory in Nebraska.

2. The Act of Congress, approved August 7, 1882, 22 U.S.Stat. at Large 341, granted the State of Nebraska both civil and criminal jurisdiction of the Indians in Nebraska.

3. The power of Congress over Indian affairs is plenary and cannot be limited by treaty.

4. The inherent police power of the states applies both to Indians and to Indian country, except to the extent that the federal government has preempted the field, and therefore the federal government may withdraw from the field and turn jurisdiction back to the states when it chooses to do so.

5. No acceptance of Public Law 280 was required of the State of Nebraska. By its terms it applied to Nebraska, and only the states not specifically mentioned were required to accept its provisions if they wanted to avail themselves of it.

Lawrence E. Murphy, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

SPENCER, Justice.

Enoch Robinson, an Omaha Indian who is now serving a life sentence in the Nebraska Penal Complex for murder, appeals from the dismissal of his application for a writ of habeas corpus. The application attacks the jurisdiction of the State to prosecute an Omaha Indian for the murder of another Omaha Indian on the Omaha Indian Reservation in Thurston County, Nebraska. We affirm.

On January 13, 1969, appellant murdered an Omaha Indian in the village of Macy, Thurston County, Nebraska. This court affirmed appellant's conviction for that offense on January 9, 1970. State v. Robinson 185 Neb. 64, 173 N.W.2d 443. This was more than 9 months before the Secretary of the Interior published an Order on October 24, 1970, purporting to accept retrocession of jurisdiction of offenses committed by or against Indians within the boundaries of the Omaha Indian Reservation in Thurson County, Nebraska. Appellant's claims are predicated on his theory that the State of Nebraska did not have jurisdiction of his person or of the particular offense involved.

Appellant's first contention, relying on United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), is that the murder of an Omaha Indian by another Omaha Indian within the limits of the Omaha Indian Reservation is a federal offense, exclusively cognizable in the courts of the United States. Without reference as to whether concurrent jurisdiction may have existed prior to the passage in 1953 of Public Law 280, 18 U.S.C.A., section 1162, there is no question that act withdrew federal jurisdiction over offenses committed in Indian country. It specifically granted the State of Nebraska exclusive criminal jurisdiction over Indian country to the same extent such jurisdiction applied elsewhere in the state. When appellant's offense was committed only the State of Nebraska was exercising jurisdiction over criminal acts in Indian territory in Nebraska.

Appellant places some reliance on the old Nebraska case of Ex parte Cross, 20 Neb. 417, 30 N.W. 428, as a controlling case herein. That case was mere dictum, and obviously no authority for the present question. It is to be noted that the court there did not consider the Act of Congress approved August 7, 1882, 22 U.S.Stat. at Large 341, in which the Secretary of the Interior was authorized by and with the consent of the Omaha Tribe of Indians in open council to convey a portion of the land of the Omaha Indians as therein provided, and to distribute the remaining lands to the individual members of the tribe and certain portions to be held in trust to the tribe as common property.

Section 7 of the Act of 1882 specifically provided: 'That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of said tribe of Indians shall have the benefit of and be subject to the laws, Both civil and criminal, of the State of Nebraska; and said State shall not pass or enforce any law denying any Indian of said tribe the equal protection of the law.' (Italics supplied.) The foregoing statute has never been repealed and applies specifically to Omaha Indians and the Omaha Indian Reservation.

With reference to the claim of appellant that United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), abrogated the effect of this act, we call attention to Hallowell v. United States, 221 U.S. 317, 31 S.Ct. 587, 55 L.Ed. 750, a 1910 case which is premised on the effectiveness of the Act of 1882, and recognized section 7 of the act as granting civil and criminal jurisdiction to the State of Nebraska over the Omaha Indian Reservation.

Appellant argues that a treaty of March 16, 1854, between the Omaha Tribe of Indiams and the United States is controlling herein, and that it cannot be arbitrarily abrogated by Congressional action. It has been consistently held that the power of Congress over Indian affairs is plenary, that it cannot be limited by treaty, and that an Indian treaty may be abrogated by Congress so long as individual rights acquired...