State v. Kuntz, C

• Decision Date: 29 October 1954
• Docket Number: No. C,C
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. James KUNTZ, Defendant and Appellant. r. 257.
• Court: North Dakota Supreme Court

Page 531

66 N.W.2d 531

STATE of North Dakota, Plaintiff and Respondent, v. James KUNTZ, Defendant and Appellant.

No. Cr. 257.

Supreme Court of North Dakota.

Oct. 29, 1954.

Syllabus by the Court.

1. State courts generally have jurisdiction over offenses committed on Indian reservations by persons who are not Indians against other persons who are not Indians.

2. One who is half of Indian blood, is a member of an Indian tribe, lives on the tribal reservation, and is treated as an Indian by the Indian Department of the United States Government is an Indian.

3. The courts of the State of North Dakota do not have jurisdiction over crimes committed on the Fort Berthold Indian Reservation by one who is not an Indian against one who is an Indian.

Robert Vogel, State's Atty., and Paul W. Buehler, Asst. State's Atty., Garrison, for plaintiff and respondent.

J. K. Murray, Bismarck, for defendant and appellant.

MORRIS, Chief Justice.

This is a criminal action in which the state charged that the defendant, James Kuntz, on or about the twentieth day of March 1953, in McLean County, North Dakota, 'did commit the crime of Unlawful Killing of Livestock, committed in the manner following, to-wit: That at the same time and place the said defendant did then and there wilfully and unlawfully and wrongfully and intentionally kill or cause to be killed one Heifer Calf, the property of Ambrose Hosie.' The defendant pleaded not guilty. The jury rendered a verdict of guilty, upon which the court, on December 3, 1953, rendered judgment sentencing the defendant to be imprisoned in the state penitentiary not less than two nor more than five years.

The defendant moved for arrest of judgment and for a new trial. Both motions were denied. The defendant has appealed from both the judgment and from the order denying his motion for a new trial. Under both appeals he challenges the jurisdiction of the convicting court upon the ground that the crime was committed upon the Fort Berthold Indian Reservation against the property of an Indian who was then residing and operating a ranch on the reservation.

There is no dispute as to the time and place of the commission of the offense by the defendant, who is a white man. There is a dispute as to whether Ambrose Hosie is an Indian and as to whether he owned the animal that was killed. Before considering further these differences of fact between the state and the defendant, we will turn to the law applicable to the jurisdiction of state courts in such cases.

In Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 780, 90 L.Ed. 962, we find this statement:

'While the laws and courts of the State of Arizona may have jurisdiction over offenses committed on this reservation between persons who are not Indians, the laws and courts of the United States, rather than those of Arizona, have jurisdiction over offenses committed there, as in this case, by one who is not an Indian against one who is an Indian.'

The statement of the law above quoted from Williams v. United States is applicable to the jurisdiction of state courts over offenses committed on the Fort Berthold Reservation in North Dakota by persons belonging to the classes mentioned.

The courts of the State of North Dakota do not have jurisdiction over crimes committed on the Fort Berthold Reservation by one who is not an Indian against one who is an Indian. Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820, Ann.Cas.1913E, 710; State v. Youpee, 103 Mont. 86, 61 P.2d 832; 42 C.J.S., Indians, Sec. 79b.

'The exclusive jurisdiction of the Federal courts over Indian reservations within state limits extends not only to crimes committed by an Indian, but also to crimes committed on the reservation against an Indian by a white person.' 27 Am.Jur., Indians, Section 51.

On the other hand, our state courts have jurisdiction over offenses committed on Indian reservations by persons who are not Indians against other persons who are not Indians. 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; 27 Am.Jur., Indians, Section 51; 42 C.J.S., Indians, Sec. 79c.

The state contends that Ambrose Hosie, the person against whom the crime in this case is alleged to have been committed, is not an Indian and that there being no contrary reservation of power by treaty or by federal statute with regard to the Fort Berthold Reservation, the courts of the State of North Dakota have jurisdiction to prosecute the defendant for the crime charged. This requires us to determine upon the record in this case whether Ambrose Hosie is an Indian.

Ambrose Hosie, the complaining witness, testifying on the part of the state, said that he lives on the reservation in McLean County and has lived in this county all of his life of about thirty-three years. He owns about forty head of Hereford cattle. On about the twentieth of March 1953, a yearling heifer was missing. Later he saw the head and hide of the animal where it had been butchered about two and a half miles northwest of his farm. He...