State v. Hook, s. 900280

Citation476 N.W.2d 565
Decision Date10 October 1991
Docket NumberNos. 900280,s. 900280
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Terrance HOOK, Defendant and Appellant. Crim.to 900282.
CourtUnited States State Supreme Court of North Dakota

Lewis C. Jorgenson, State's Atty., Devils Lake, for plaintiff and appellee. No appearance.

Douglas L. Broden (argued), of Broden & Broden, Devils Lake, for defendant and appellant.

GIERKE, Justice.

Terrance Hook appeals from judgments of conviction for driving while under the influence of alcohol, fleeing or attempting to flee a peace officer, and driving when his driving privileges were revoked. We affirm.

On April 7, 1989, North Dakota highway patrolman Gerald Buchli observed an automobile speeding on U.S. Highway 20 approximately three miles south of Devils Lake in Ramsey County. Buchli activated the overhead lights on his squad car and pursued the automobile as it entered the boundaries of the Devils Lake Sioux Indian Reservation where police officers for the Bureau of Indian Affairs stopped it at a roadblock. Buchli immediately arrived at the roadblock and approached the vehicle. He arrested the driver and took him directly to the Law Enforcement Center in Devils Lake without turning him over to the Bureau of Indian Affairs or following the Tribe's extradition procedures. Buchli subsequently identified the driver as Terrance Hook, an enrolled member of the Devils Lake Sioux Tribe, and ascertained that Hook's North Dakota driving privileges were revoked. Hook submitted to a blood alcohol test, and the results of that test indicated that he had a blood alcohol concentration of .13 percent.

Hook was charged with driving while under the influence of alcohol, fleeing or attempting to elude a police officer, and driving when his driving privileges were revoked. Hook moved to suppress the evidence obtained after he was arrested, contending that Buchli did not have jurisdiction to arrest him on the reservation in violation of the Tribe's extradition procedures.

Relying upon principles from Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), and Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), and rejecting the rationale of the majority of our court in State v. Lohnes, 69 N.W.2d 508 (N.D.1955), the trial court denied Hook's motion. The court concluded that the arrest was legal because under the Act of May 31, 1946, ch. 279, 60 Stat. 229, 1 Congress intended to give the State criminal jurisdiction over misdemeanors committed by members of the tribe on the Devils Lake Sioux Indian Reservation. Hook entered a conditional plea of guilty to all of the charges pursuant to Rule 11(a)(2), N.D.R.Crim.P., and he has appealed.

Relying upon State v. Lohnes, 69 N.W.2d 508 (N.D.1955), Hook contends that he was illegally arrested because the State does not have criminal jurisdiction over Sioux tribal members on the reservation for crimes committed off the reservation. Hook asserts that the fresh pursuit doctrine does not justify the arrest because the State did not comply with the Tribe's extradition procedures and the Tribe has not granted the State authority to enter the reservation in pursuit of persons suspected of misdemeanors. Hook thus contends that the trial court erred in not suppressing the evidence obtained as a result of his arrest.

The State responds that Hook's arrest was legal because the State has criminal jurisdiction over misdemeanors committed on the Devils Lake Sioux Indian Reservation under 60 Stat. 229 (1946). See n. 1. The State argues that in State v. Lohnes, supra, a majority of our court misconstrued the provisions for disclaimer of governmental control of Indian lands in North Dakota's enabling act and our original constitution and should be overruled.

Generally, a valid arrest may not be made outside the territorial jurisdiction of the arresting authority. 50 Am.Jur.2d, Arrest, Sec. 50 (1962); 34 A.L.R.4th 328, Validity, In State Criminal Trial, Of Arrest Without Warrant By Identified Police Officer Outside of Jurisdiction, When Not in Fresh Pursuit, Sec. 2 (1984); F. Cohen, Handbook of Federal Indian Law, p. 357 (1982). We therefore initially consider whether the State has criminal jurisdiction over offenses committed on the Devils Lake Sioux Indian Reservation.

The allocation of criminal jurisdiction in Indian country 2 is governed by "a complex patchwork of federal, state, and tribal law." Duro v. Reina, 495 U.S. 676, ---- n. 1, 110 S.Ct. 2053, 2057 n. 1, 109 L.Ed.2d 693, 700 n. 1 (1990). 3 See F. Cohen supra, at ch. 6. However, the primary source of criminal jurisdiction in Indian country is federal law. F. Cohen, supra, at p. 282. It is well established that "absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). See also Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983); Washington v. Confederated Bands and Tribes of Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979); United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978); Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832). The unique and limited sovereignty that Indian tribes retain is subject to complete defeasance by Congress. Rice v. Rehner, supra; United States v. Wheeler, supra. The principles announced in those decisions establish a general framework that states do not have criminal jurisdiction over Indians on an Indian reservation unless allowed by Congress.

Under those principles, we examine State v. Lohnes, supra, our 1955 decision involving state criminal jurisdiction on the Devils Lake Sioux Reservation under 60 Stat. 229 (1946). See n. 1. In Lohnes, a majority of our court traced the history of Indian jurisdiction in North Dakota and held that the State did not have criminal jurisdiction over an enrolled member of the Devils Lake Sioux Tribe for assault and battery allegedly committed upon another Indian on reservation land. The majority said that the intent of the disclaimer in North Dakota's Enabling Act, Act of February 22, 1889, ch. 180, Sec. 4, 25 Stat. 676, 677, and original constitution, Art. XVI, Sec. 203, N.D.Const. (1889), 4 was to make the Indians the responsibility of the United States and to give the United States complete control over the Indians and their lands until that obligation was fulfilled. Relying upon the disclaimer language, the majority concluded that it created a compact between the United States and the State of North Dakota which could not be revoked without the consent of both. The majority held that because the State of North Dakota had not consented to the jurisdiction given by 60 Stat. 229 (1946), that statute did not give North Dakota criminal jurisdiction over crimes committed by Indians on the Devils Lake Sioux Reservation.

The dissent said that the disclaimer language was not territorial and declined to construe that language to disclaim the sovereign police powers of the state to enforce its criminal laws whenever or wherever Congress had relinquished jurisdiction to the state:

"The federal criminal jurisdiction exercised over Indians in North Dakota by the federal government is based on the status of Indians as such rather than upon the lands on which they reside. When that jurisdiction is relinquished it falls to the state which has general criminal jurisdiction within its borders." State v. Lohnes, supra, 69 N.W.2d at 521 (Morris, J., dissenting).

The dissent concluded:

"that the provisions of the Enabling Act and our constitutional disclaimer have no effect whatever upon the criminal jurisdiction of the state; that the state has general jurisdiction over reservations wholly within the state, excluding however, that jurisdiction which has been retained by the federal government over 'Indian country' as long and only as long as that jurisdiction is asserted by the federal government and when the federal government cedes or confers criminal jurisdiction over Indian country to the state the federal restraint on the state's jurisdiction is removed and to the extent of that removal the jurisdiction of the state is automatically extended." State v. Lohnes, supra, 69 N.W.2d at 522 (Morris, J., dissenting).

A recognized Indian law scholar has questioned the analysis of the majority in Lohnes:

"The North Dakota court reasoned that the disclaimer was adopted under a federal-state compact, so it could not be altered without state consent. The court determined that state consent would have required a state constitutional amendment. The premise that the disclaimer was part of a compact was correct....

"But it does not follow that state consent is necessary to alter the compact. Congress probably has power to withdraw Indian country preemption under the Supremacy Clause without state consent regardless of any compact. The correct inquiry was whether Congress intended to break the compact and require state jurisdiction without state consent." F. Cohen, supra, at 374, n. 229.

We agree that the correct inquiry is to ascertain the intent of Congress. A determination of congressional intent is consistent with the principles underlying the Supreme Court's preemption analysis for determining jurisdiction in cases involving Indians. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986); Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980).

Subject to the restrictions in the second clause of 60 Stat. 229 (1946), the first clause of that statute...

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3 cases
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