State ex rel. Irvine v. District Court of Fourth Judicial Dist. in and for Lake County

• Decision Date: 20 December 1951
• Docket Number: No. 9139,9139
• Citation: 239 P.2d 272,125 Mont. 398
• Parties: . IN AND FOR LAKE COUNTY et al. Supreme Court of Montana
• Court: Montana Supreme Court

Page 272

239 P.2d 272

125 Mont. 398

STATE ex rel. IRVINE v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR LAKE COUNTY et al.

No. 9139.

Supreme Court of Montana.

Dec. 20, 1951.

Stanley M. Doyle, Polson, for relator.

Arnold H. Olsen, Atty. Gen., Glen E. Cox, Asst. Atty. Gen., John D. French, County Atty., Polson, for respondents.

BOTTOMLY, Justice.

Original proceeding. By information filed September 12, 1950, in the state district court of Lake county, Montana, the relator, James Hugh Irvine, an Indian ward of the federal government, was charged with the crime of burglary of a grocery store located in the city of Ronan, in Lake county, Montana.

On the day the information was filed the relator was arraigned without the benefit of counsel, waived the statutory time to plead, and entered a plea of guilty.

On September 19, 1950, the state district court sentenced relator to ten years' imprisonment in the state prison where, on the following day, he was delivered and where he has since been confined serving the sentence so imposed.

On July 13, 1951, the relator, in forma pauperis and in propria persona petitioned this court for relief, asserting that the state district court was wholly lacking in jurisdiction to enter the judgment of conviction and seeking to have such judgment and sentence vacated on the grounds that the relator is an Indian; that the store which he was charged to have burglarized is situate within the Flathead Indian reservation in Montana; that by reason thereof the state court was and is wholly lacking in jurisdiction to try or sentence him for the offense charged and contending that the exclusive jurisdiction of such crime when committed by an Indian in Indian County is in the United States government.

On July 18, 1951, this court, after considering relator's petition ordered the proceeding transferred to the state district court wherein the information was filed and the judgment of conviction entered. See State ex rel. Irvine v. District Court of, etc., Lake County, Mont., 235 P.2d 662.

Following the transfer a hearing was had on August 7, 1951, before the district court on relator's petition. It was and is conceded by both the relator and the state that relator is an enrolled and allotted Indian and a member of the Flathead Indian tribe; that the city of Ronan, in Lake county, Montana, and the store which relator is accused of having burglarized are within the exterior boundaries of the Flathead Indian reservation and that by appropriate instrument the United States government has ceded all right, title and interest in and to the property upon which the store building described in the information stands.

The only question there and here presented is one of jurisdiction.

October 11, 1951, the district court rendered an opinion and made an order disallowing relator's petition and denying him all relief. Timely written exceptions were served and filed. Thereafter, on October 23, 1951, on motion of the county attorney the trial court ordered relator's petition dismissed.

November 2, 1951, relator instituted the instant proceeding in this court seeking a writ against the respondent district court and on November 7, 1951, the writ issued returnable on a day certain on which day the matter was heard, argued and submitted.

The state contends that the state district court had jurisdiction of the offense and to impose the judgment rendered for the reason that the fee to the particular piece of land on which the alleged offense was committed had been alienated by the United States government although being within the limits of the Flathead Indian reservation.

Relator contends that the state courts are without jurisdiction of this offense, to-wit burglary, alleged to have been committed by this enrolled member of the Flathead Indian tribe who had been allotted lands therein, within the limits of the Flathead Indian reservation which Indian and his allotment is under the exclusive jurisdiction of the United States and with its Indian superintendent in charge of and supervising the Indian and the Indian affairs of and on said reservation; that the land on which the alleged offense was committed was conceded to be within the exterior boundaries of the Flathead Indian reservation.

Since the question of jurisdiction of the state trial court involves human liberties, as well as an asserted conflict between state and federal jurisdiction over crimes committed by such an Indian within the limits of a legally constituted, supervised, Indian reservation which lies within this state, we deem it appropriate to re-examine this question.

The question of jurisdiction should be inquired into by the court at the earliest inception on its own initiative to ascertain whether that particular court has jurisdiction of that class of offense. In re Coy, 127 U.S. 731, 758, 8 S.Ct. 1263, 32 L.Ed. 274; Barnes v. Hunter, 10 Cir., 188 F.2d 86, 89; Tooisgah v. United States, 10 Cir., 186 F.2d 93, 96.

It should be kept in mind that all congressional legislation relative to Indians and Indian affairs has been initiated and enacted for the benefit of the Indian. As was stated by the supreme court, 'According to a familiar rule, legislation affecting the Indians is to be construed in their interest, and a purpose to make a radical departure is not lightly to be inferred.' United States v. Nice, 241 U.S. 591, 599, 600, 36 S.Ct. 696, 698, 60 L.Ed. 1192.

'The policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history.' Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 991, 89 L.Ed. 1367. Historically and consistently the federal government has always defined the legal status of the Indian and the relation which has existed between the government and the Indian as that of 'guardian and ward' or 'wards of the nation'. United States v. Thomas, 151 U.S. 577, 14 S.Ct. 426, 429, 38 L.Ed. 276; State of Oregon v. Hitchcock, 202 U.S. 60, 26 S.Ct. 568, 50 L.Ed. 935; Ex parte Webb, 225 U.S. 663, 32 S.Ct. 769, 56 L.Ed. 1248; La Motte v. United States, 254 U.S. 570, 41 S.Ct. 204, 65 L.Ed. 410; United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023; British-American Oil Producing Co. v. Board of Equalization, 299 U.S. 159, 57 S.Ct. 132, 81 L.Ed. 95.

It should be noted that the Flathead Indian reservation was created by Hell Gate Treaty of 1855, 12 Stat. 975, between the Indian tribes called the Flathead Nation, and the federal government, and that the treaty with the Indians was not a grant of rights of the Indians but a grant of rights from the Indians with a reservation remaining to them. It is understood that the Flathead Indian reservation has been set apart by and under the superintendence of the federal government.

Also it should be kept in mind that we are dealing here as in the reported case of State v. Pepion, Mont., 230 P.2d 961, with the Acts of Congress known as the 'Ten Major Crimes Act.' These ten major crimes are enumerated in Title 18, §§ 1153 and 3242, U.S.C.A., and it also is noted that we are dealing only with offenses included therein which are committed by an Indian, a ward of the nation, enrolled in a tribe, the offense being charged as committed within the limits of an organized, government-supervised Indian reservation. The effect of these laws is confined to such offenses committed by an Indian within the limits of such a reservation. Exclusive jurisdiction over the Indian for this purpose has always been claimed and asserted by the general government, on the ground that the Indian is a ward thereof, and dependent thereon, and until fully emencipated and discharged from that condition, Title 25, § 349, U.S.C.A., the federal government continues to assert its exclusive jurisdiction to punish its ward for the committing of the enumerated offenses.

It seems to us that the attorney general and the court below have placed too much emphasis on the ownership of land, and have not given due weight to the fact that the jurisdiction of the federal government over the Indian and tribes rests, not upon the ownership of and sovereignty of certain tracts of land, but upon the fact that, as wards of the general government, they are the subjects of federal authority within the state when the mentioned offense is committed as herein stipulated. See Rice v. Olson, supra, 324 U.S. 786, at pages 790, 791, 65 S.Ct. 989.

'When we speak of the right to govern certain lands, we not only mean the right to do some thing with the land itself, but to legislate for and control the people upon said lands * * *. When we say congress has the right to legislate for a place within its exclusive jurisdiction, we mean for the people who are there, as well as concerning the land itself.' Emphasis supplied. United States v. Partello, C.C., 48 F. 670, 676; United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228; State v. Rufus, 205 Wis. 317, 237 N.W. 67; State v. Campbell, 53 Minn. 354, 55 N.W. 553, 21 L.R.A. 169; State v. Columbia George, 39 Or. 127, 65 P. 604.

In United States v. Thomas, supra, the defendant, an Indian of the Chippewa tribe, was indicted, tried and convicted of murder in the federal district court--the offense was committed on section 16, a school section ceded to the state under its Enabling Act, embraced within the reservation. Defendant's counsel moved to set aside the verdict contending that under the Enabling Act Wisconsin was ceded said section for school purposes and therefore it was not a part of the reservation and for that reason the state courts had jurisdiction to punish the alleged offense.

The court stated, 151 U.S. 577, at page 585, 14 S.Ct. 426, at page 429: 'But, independently of any question of title, we think the court below had jurisdiction of the case. The Indians of the country are considered as the wards of the nation, and whenever the United States set apart any land of their own as an Indian reservation, whether...