State v. Johnson
| Decision Date | 29 June 1933 |
| Citation | 212 Wis. 301,249 N.W. 284 |
| Parties | STATE v. JOHNSON. |
| Court | Wisconsin Supreme Court |
Reported from the Circuit Court for Ashland County; G. N. Risjord, Circuit Judge.
Frank Dakota Johnson was charged by information with manslaughter in the fourth degree, and the material facts and certain questions were reported.--[By Editorial Staff.]
Questions reported answered.
The information filed in this action contains two counts. The first count charges in substance that on June 4, 1932, at Ashland county the defendant did unlawfully kill one Frank Gervais by an act of gross negligence, such killing not being justifiable or excusable and not declared by chapter 340 of the Statutes to be murder or manslaughter in some other degree, whereby he committed the crime of manslaughter in the fourth degree as defined by section 340.26 of the Statutes. The second count charges that, at the same time and place, the defendant did unlawfully hunt deer during the closed season therefor in violation of section 29.18 of the Statutes. To each count of the information the defendant entered a plea of “guilty.” The trial court, being of the opinion that a doubtful question of law has arisen as to whether it has jurisdiction to entertain this prosecution, reported two questions to this court to answer. Section 358.08.
The material facts reported are as follows: On June 4, 1932, the defendant, while hunting deer out of season, mistook Frank Gervais for a deer and shot and killed him. The defendant is an Indian, a member of the Bad River Band of the Chippewa Tribe, and has resided for some years on the Bad River Indian Reservation in Ashland county. He owns certain lands in said reservation, the title to which is held in trust for him by the United States. The crimes were committed upon the south half of the northwest quarter of section 4 in township 47 north, of range 2 west, in Ashland county. This land is located within the exterior boundaries of the Bad River Indian Reservation, but prior to June 4, 1932, had been fully patented in fee to the heirs of one Antoine Rufus (an Indian to whom this land had been allotted). The Rufus heirs conveyed the lands by warranty deed to one James Good, a white man, who in turn conveyed it to Frank Gervais, another white man, the brother of the deceased. Since the lands were conveyed to Mr. Good, they have been taxed by the authorities of the town in which the lands are located the same as other lands. The questions submitted are as follows:
“1. Has this court jurisdiction to try and determine a prosecution by the state of the crime of manslaughter in the fourth degree under sec. 340.26 of the statutes of 1931, the defendant being part Indian and enrolled as a member of the Bad River Band of the Chippewa Tribe of Indians located in this county upon the Bad River Indian Reservation, the offense having been committed under the circumstances and upon the place described in the statement of facts above?
2. Has this court jurisdiction to try and determine a prosecution by the state of the crime of hunting out of season by an Indian at the time and place described in the statement of facts above?”J. E. Finnegan, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and G. Arthur Johnson, Dist. Atty., of Ashland, for the State.
C. A. Lamoreux, of Ashland (Lamoreux & Cate, of Ashland, of counsel), for defendant.
Thomas L. St. Germaine, of Lac Du Flambeau, amicus curiæ.
From the facts reported it appears that the defendant is an incompetent Indian, that is to say, one to whom the United States has allotted lands which are still held in trust for him by the government of the United States; that he is a member of the Bad River Band of Chippewa Indians and resides within the boundaries of the Bad River Indian Reservation; that, while hunting for deer on certain lands which had been fully patented and during the closed season for deer, he mistook Frank Gervais for a deer and shot and killed him.
[1] Question 1 requires us to decide whether the circuit court for Ashland county has jurisdiction to try the defendant for manslaughter committed by him on fully patented lands located within the exterior boundaries of the Bad River Indian Reservation. In State v. Rufus, 205 Wis. 317, 237 N. W. 67, this court recently held that the courts of this state are without jurisdiction to entertain a criminal prosecution of an Indian having tribal relations and residing on a reservation, for the crime of statutory rape committed within the limits of a reservation, upon an Indian woman having tribal relations and also residing on the reservation. That case required, as does this, a construction of section 328 of the Federal Criminal Code (18 USCA § 548), which is as follows:
The Rufus Case involved a crime committed by a tribal Indian against the person of another tribal Indian, both of whom resided upon an Indian reservation. The present case involves a crime committed by a tribal Indian against a white man upon fully patented lands located within the exterior boundaries of an Indian reservation. We are therefore required to deal with a situation which is quite different from the situation in the Rufus Case. Section 328 of the Federal Criminal Code, supra, provides that all Indians committing any of the crimes named therein “against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.”
If the place of the crime was “within the limits of an Indian reservation,” then obviously the federal courts have exclusive jurisdiction to try the defendant. The controlling question therefore is whether fully patented lands located within the exterior limits of an Indian reservation may properly be held to be “within the limits of an Indian reservation.” We do not think that lands, the title to which has been fully relinquished by the United States and to which the jurisdiction of the state, for taxation and other governmental purposes, has attached, are “within the limits of an Indian reservation” as that language should be construed.
This precise question seems not to have been considered by the Supreme Court of the United States. At least no case has been found in which the language, “within the limits of an Indian reservation,” has been construed. However, in Clairmont v. United States, 225 U. S. 551, 32 S. Ct. 787, 56 L. Ed. 1201, it was held that the federal District Court of Montana had no jurisdiction to try the defendant therein for the offense charged. The conviction in that case was obtained under the Act of January 30, 1897, c. 109, 29 Stat. 506 (25 USCA § 241), which, among other things, prohibited any person from introducing any intoxicating liquors “into the Indian country.” The indictment charged in substance that the defendant unlawfully introduced a quantity of intoxicating liquor into the Flathead Indian Reservation, the said reservation being Indian country. The defendant was an Indian who, at the time of his arrest and the finding of liquor on his person, was on a train of the Northern Pacific Railway Company. He had boarded the train at Arlee and was intending to leave it at Ravalli, both of which points were within the exterior limits of the reservation. It appeared that the railroad company had theretofore obtained from the United States, and from the confederated tribes interested, full, complete, and unrestricted title to a right of way through the reservation. The question considered in that case was whether the defendant, who had intoxicating liquor in his possession on a railroad train which was being operated on the strip of land constituting the railroad right of way and within the exterior boundaries of the reservation, could be deemed to have introduced liquor “into the Indian country.” It was held, citing Bates v. Clark, 95 U. S. 204, 24 L. Ed. 471, and Dick v. United States, 208 U. S. 340, 28 S. Ct. 399, 52 L. Ed. 520, that the Indian title or right of occupation having been extinguished without reservation, the relinquished strip came under the jurisdiction of the then territory and later of the state of Montana. The court concluded that the right of way had been completely withdrawn from the reservation by the surrender of the Indian title and that in accordance with the repeated rulings of that court it was not Indian country.
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