State v. Lohnes, Cr. 264

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: GRIMSON; In State v. Denoyer, supra; After reviewing the authorities on jurisdiction over Indian lands; BURKE, C. J., and JOHNSON; MORRIS; SATHRE
• Citation: 69 N.W.2d 508
• Parties: STATE of North Dakota, Plaintiff, v. Leonard LOHNES, Defendant.
• Docket Number: Cr. 264
• Decision Date: 18 February 1955

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69 N.W.2d 508 STATE of North Dakota, Plaintiff,
v.
Leonard LOHNES, Defendant. Cr. 264. Supreme Court of North Dakota. Feb. 18, 1955.

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Syllabus by the Court.

1. This court will determine questions of law which have been passed upon and certified by the lower court when the issue in the case depends principally or wholly upon the construction of the law applicable thereto and such construction is in doubt and vital in the case.

2. In the construction of a provision in the Constitution of this state the facts and purposes leading up to its enactment may be considered as an aid in determining the intention of the Constitutional Convention in the enactment thereof.

3. The purpose and intent of Section 203, Article XVI, Constitution of North Dakota was, among other things, to reserve to the United States all jurisdiction necessary to fulfill its obligations under its treaties with the Sioux Bands of Indians.

4. The obligations assumed by the United States with the Sioux Bands of Indians included the duty to prosecute crimes, by or against Indians, committed upon an Indian reservation and jurisdiction for that purpose is reserved to the United States by Section 203, Article XVI, Constitution of North Dakota.

5. Section 203, Article XVI, Constitution of North Dakota is a compact between this state and the United States which may not be revoked or altered without the consent of the United States and the people of this State.

6. An Act of Congress, which confers upon this State a part of the jurisdiction reserved to the United States under Section 203, Article XVI, Constitution of North Dakota, is not effective to vest that jurisdiction in the State until the consent of the people has been obtained.

Paul Benson, Atty. Gen., and Honorable Melvin Christianson, State's Atty., Minnewaukan, for plaintiff.

John B. Hart, Rolla, for defendant.

Clyde Duffy, Devils Lake, amicus curiae.

GRIMSON, Judge.

This matter comes before us on a certified question under Chapter 32-24, NDRC 1943. An information was filed on the 25th day of October, 1954 in the County Court of Increased Jurisdiction of Benson County, North Dakota. The information charged the defendant with the commission of the crime of assault and battery. To this information

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the defendant entered a plea of guilty. Thereupon his attorney filed a motion in arrest of judgment on the ground that the court had no jurisdiction of the offense charged in the information for the reasons that the defendant and the complaining witness were both Indians enrolled upon the records of the Devils Lake Sioux Indian Reservation as members of the Devils Lake Sioux Indian tribe and wards of the government of the United States of America; that the offense charged 'was committed on lands allotted to an Indian, the title to which is held in trust by the United States of America and is within the exclusive jurisdiction of the government of the United States of America'.

Thereafter the attorneys filed briefs and argued the motion before the court. On November 23, 1954, the court denied the motion. Counsel, both for the state and the defendant, then made application to the court for the certification to the supreme court of the following question:

'Does the Benson County Court, being a Court of increased jurisdiction, have jurisdiction over the offense charged in the information filed herein in view of The Organic Law (Chapter 86, 12 U.S.Stat. 239), the Enabling Act (25 U.S.Stat. 676), Article 16, Section 203 of the Constitution of North Dakota, the Act of Congress of May 31, 1946 (60 Stat. 229), the Act of Congress of February 19, 1867 (15 Stat. 505), the Act of Congress of February 14, 1873 (17 Stat. 456), and the Act of Congress of June 24, 1874 (18 Stat. 167).'

The court granted the application and certified the question to us for determination, 'because this is a public question of great importance to the Indian People of the Fort Totten Indian Reservation, and to the law enforcement officials and the courts of Benson County, North Dakota, and bacause there is an issue of law involved in this case, the interpretation of which is in doubt and vital, and principally determinative of the issues in this case, * * *'

It appears clearly that the proceedings were in accordance with the requirements of Chapter 32-24, NDRC 1943. State v. Elkin, 68 N.D. 93, 277 N.W. 89. We will therefore proceed to answer the question.

What is now North Dakota was in early times occupied and controlled by bands of roving Sioux Indians.

On March 2, 1861, Congress enacted Chapter 86, 12 U.S.Statutes at Large, page 239, providing for the organization of the Territory of Dakota and for temporary government thereof. That statute is known as the Organic Law. Among the provisions thereof is the following:

'Provided, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, * * * or to affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this act had never passed * * *.'

In 1867 the Devils Lake Indian Reservation was established by a treaty with the Sissiton and Warpeton Bands of the Dakota or Sioux Indians. According to that treaty those bands had been friendly during the Sioux Indian outbreak in 1862 and had been of assistance to the United States. Furthermore, Sioux annuities and reservations had been confiscated without any provision having been made by congress for the support of those friendly bands who had consequently suffered from want of subsistence and clothing. Now they had asked, through their representatives, for recognition and some help to enable them to take up agricultural life. In consideration of these matters the Devils Lake and other North Dakota reservations were set up for those friendly bands of Indians. In that treaty provisions were

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made for the gradual allotment of such lands to individual Indians who desired to engage in agriculture and funds were to be provided for their needs and assistance in making such change in their method of living. Provision was also made authorizing the Indians to adopt rules and regulations for the security of their lives and property and for the advancement of the civilization and agricultural prosperity of members of said bands. All such rules, however, were subject to the sanction of the government agent. This treaty was ratified by the Act of Congress April 15, 1867, 15 U.S.Statutes at Large, page 505.

On June 7, 1872, 17 Stat. 281, that treaty was amended to include a provision in which these bands of Sioux Indians ceded, sold, and relinquished to the United States all their right, title, and interest in the territory described in the Treaty of April 15, 1867, excepting therefrom that portion particularly described as a permanent reservation for occupancy and cultivation by them which was at that time being occupied and alloted to them under that treaty. In consideration of the amended treaty, an appropriation was made for the payment of the first installment of eighty thousand dollars to be used for the development of farming and civilization on the reservation. 17 U.S.Statutes at Large, page 456. A second installment payment under the Treaty of April 15, 1867, was made by the Act of Congress of June 22, 1874, 18 U.S.Statutes at Large, page 167. No other promises were made to the Indians in those treaties as to the disposition or government of the lands ceded.

By these various acts the Devils Lake Sioux Indian tribes ceded to the United States all their right, title and interest to the lands constituting the Devils Lake Sioux Indian Reservation and congress was given absolute authority not only over the lands but also over the Indians occupying them as shown by the provision of the Organic Law heretofore quoted.

In 1889 congress provided for the division of the territory of Dakota into two states, North Dakota and South Dakota, and for the admission into the Union of North Dakota, South Dakota, Montana and Washington. 25 U.S.Statutes at Large, Chapter 180, page 676. This law, known as the Enabling Act, provided for the holding of constitutional conventions in the different states and made provisions for the states to be admitted into the Union 'on an equal footing with the original States'.

It is also provided therein:

'And said conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States:

'First. * * *

'Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States; * * *.'

Then follow provisions to keep said lands tax exempt except as provided in the act or by other acts of congress.

In accordance therewith Article XVI, Section 203 of the Constitution of North Dakota provided the following with the same preamble of irrevocability:

'The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United...