State v. Jackson

• Decision Date: 10 November 1944
• Docket Number: No. 33825.,33825.
• Citation: State v. Jackson, 218 Minn. 429, 16 N.W.2d 752 (Minn. 1944)
• Parties: STATE v. JACKSON.
• Court: Minnesota Supreme Court

16 N.W.2d 752

218 Minn. 429

STATE v. JACKSON.

No. 33825.

Supreme Court of Minnesota.

November 10, 1944.

Rehearing Denied December 15, 1944.

Appeal from District Court, Itasca County; Graham M. Torrance, Judge.

Robert Jackson was convicted of taking partridge in closed season in violation of state game laws, and from an order denying a motion for a new trial he appeals.

Reversed.

Edward L. Rogers, of Walker, for appellant.

J. A. A. Burnquist, Atty. Gen., Ralph A. Stone, Asst. Atty. Gen., Mandt Torrison, Sp. Asst. Atty. Gen., and W. B. Taylor Acting Co. Atty., of Grand Rapids, for respondent.

STREISSGUTH, Justice.

Defendant is a member of the Minnesota Chippewa tribe of Indians, enrolled as such with the Indian office at Cass Lake and with the United States Bureau of Indian Affairs. He resides with his family upon his mother's trust allotment in Beltrami county within the limits of the Leech Lake Indian Reservation, and has no allotment of his own. In May 1943, he visited the home of his wife's grandmother, who lived in Itasca county, within the boundaries of the same reservation, upon an allotment held in trust by the United States government for the grandmother's deceased husband, John Hunter, and his heirs. While on the Hunter allotment, defendant, with Mrs. Hunter's permission, shot three partridges to provide a meal for the family group. He was convicted of taking partridge in closed season in violation of the state game laws, and appeals from an order denying his motion for a new trial.

The Hunter allotment is in one of the organized townships of Itasca county and is part of the lands ceded to the United States under the Act of January 14, 1889, 25 Stat. 642, commonly known as the Nelson Act. The allotment to Hunter was made on November 19, 1900, under the general allotment act of 1887, as amended, 24 Stat. 388, 26 Stat. 794, 36 Stat. 859, 25 U.S. C.A. c. 9, § 331 et seq., under which a patent was issued to individual allottees to be held in trust for them for 25 years, during which time the land could not be alienated or encumbered. In Hunter's case, the trust period had been extended from year to year by Presidential Order until 1934, when, by Act of June 18, 1934, 48 Stat. 984, 25 U.S. C.A. § 461 et seq., the period was indefinitely extended.

The question presented by these stipulated and admitted facts is whether a tribal Indian can be prosecuted by the state for shooting game out of season for consumption by himself and family where the shooting occurs within the limits of the reservation of his tribe, upon ceded lands, not allotted to or occupied by him, but allotted to a deceased Indian of the same tribe, no fee-simple patent having been issued to the latter or his heirs.

The state bases its argument in support of the affirmative of this proposition mainly upon the premise that an Indian cannot assert personal immunity from state prosecution unless such immunity is expressly extended by treaty or federal statute. But the premise is false. The fallacy arises out of a failure to distinguish between jurisdiction over members of Indian tribes and jurisdiction over other persons in Indian country. The jurisdiction of the state, it is true, does extend over Indian country within its borders except as limited by Indian treaties or federal laws (State v. Cloud, 179 Minn. 180, 228 N.W. 611); and the right of state courts to prosecute white persons or nontribal Indians for crimes committed upon Indian reservations is uniformly upheld (United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869; Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; State v. Campbell, 53 Minn. 354, 55 N.W. 553, 21 L.R.A. 169), except where the offense is committed against a tribal Indian (Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820, Ann.Cas.1913E, 710, rehearing denied, 1913, 228 U.S. 708, 33 S.Ct. 1024, 57 L.Ed. 1035, Ann.Cas.1913E, 710). But it is as uniformly held that, absent a treaty or federal statute conferring it, a state's jurisdiction does not extend over the individual members of an Indian tribe maintaining their tribal relations and organization upon a reservation within the geographical limits of the state. Such tribes are domestic, dependent communities under the guardianship, protection, and exclusive jurisdiction of the federal government, with the power of regulating their own internal and social relations, except as otherwise directed by congress. 27 Am. Jur., Indians, § 42, et seq.; Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25; Worcester v Georgia, 6 Pet. 515, 536, 8 L.Ed. 483, 492; United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228; Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030; Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115; In re Blackbird, D.C., 109 F. 139; State v. Campbell, 53 Minn. 354, 55 N.W. 553, 21 L.R.A. 169; 39 Yale L.J. 307, "The Indian Problem and the Law." "Congress alone has the right to determine the manner in which this country's guardianship over the Indians shall be carried out." United States v. McGowan, 302 U.S. 535, 538, 58 S.Ct. 286, 287, 82 L.Ed. 410, 412. "The power of the state must yield to the paramount authority of the federal government." People ex rel. Cusick v. Daly, 212 N.Y. 183, 197, 105 N.E. 1048, 1052, Ann.Cas.1915D 367. "From necessity there can be no divided authority." The Kansas Indians, 5 Wall. 737, 755, 18 L.Ed. 667; State v. Campbell, 53 Minn. 354, 55 N.W. 553, 21 L. R.A. 169, supra.

The admission of a state into the Union, even without an express reservation by congress of governmental jurisdiction over the public lands within its borders, does not qualify the former federal jurisdiction over tribal Indians so as to withdraw from the United States authority to punish crimes committed by or against Indians on an Indian reservation (Donnelly v. United States, supra), or so as to make tribal Indians amenable to state laws for crimes committed on their reservation. United States v. Kagama, supra; 27 Am. Jur., Indians, § 47. Whatever rights a state acquires by its Enabling Act are subordinate to the Indians' prior right of occupancy. United States v. Thomas, 151 U.S. 577, 583, 14 S.Ct. 426, 428, 38 L.Ed. 276, 278; Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115; State v. Cooney, 77 Minn. 518, 80 N.W. 696.

So far as treaty provisions are concerned, it is conceded that the treaty whereby the Leech Lake Reservation was established (Treaty of February 22, 1855, 10 Stat. 1165, Revision of Indian Treaties, p. 263) contains no express reservation by the Indians of the right to hunt and fish upon their reservation. But such saving clause would have been superfluous, as "the treaty was not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted." The ancient and immemorial right to hunt and fish, which was "not much less necessary to the existence of the Indians than the atmosphere they breathed," remained in them unless granted away. United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089, 1092; and see, State v. Cooney, 77 Minn. 518, 80 N.W. 696, supra; State v. Johnson, 212 Wis. 301, 249 N.W. 284. At the time the Treaty of 1855 was made, the present Leech Lake Reservation was part of the "Indian country," so called, "subject to the occupancy of the Indians, with all the rights such occupancy gave. The object of the treaty was to limit the occupancy to certain lands and to define rights outside of them." United States v. Winans, 198 U.S. 379, 25 S.Ct. 663, 49 L. Ed. 1091, supra.

The traditional right of Indians to hunt in the Indian country was recognized by congress as early as 1834. In that year congress enacted a law regulating trade and intercourse with Indian tribes (Act of June 30, 1834, c. 161, § 8, 4 Stat. 730), reframed in the Revised Statutes, and still on the statute books, which included a provision now reading as follows:

"Every person, other than an Indian, who, within the limits of any tribe with whom the United States has existing treaties, hunts, or traps, or takes and destroys any peltries or game, except for subsistence in the Indian country, shall forfeit all the traps, guns, and ammunition in his possession, used or procured to be used for that purpose, and all peltries so taken; and shall be liable in addition to a penalty of $500." R.S. § 2137, 25 U.S.C.A. § 216. (Italics supplied.)

By expressly limiting the offense thereby created to persons other than Indians, this statute impliedly excluded Indians. 2 Lewis's Sutherland, Statutory Construction, 2d Ed., § 491; Horack's Sutherland, Statutory Construction, § 4915; Cohen v. Gould, 177 Minn. 398, 405, 225 N. W. 435, 438.

Article VII of the 1855 treaty expressly provides:

"The laws which have been or may be enacted by Congress, regulating trade and intercourse with the Indian tribes, to continue and be in force within and upon the several reservations provided for herein * * *." 10 Stat. 1169.

If express treaty or statutory authorization be necessary to establish the Chippewa's right to hunt upon their reservation, Article VII read in conjunction with the Act of 1834, as amended, provides the necessary recognition and authority. And, unless it be held that the trust allotment here involved was not "Indian country" within the meaning of the act of congress, the right of Chippewa tribal Indians to hunt upon any allotted lands "within and upon the several reservations" provided for by the treaty would seem to follow.

The state attempts to by-pass the quoted provisions of the 1834 act and the 1855 treaty by asserting that trust allotments such as here involved cannot be considered as being "Indian country" within the meaning of the act, § 1 of which limited "Indian country" to specifically named territory (including what is now Minnesota), "to which the Indian title has not been extinguished." Were such definition...