State v. Moss, 3813

• Decision Date: 22 June 1970
• Docket Number: No. 3813,3813
• Citation: 471 P.2d 333
• Parties: The STATE of Wyoming, Plaintiff, v. John Pius MOSS, Defendant.
• Court: Wyoming Supreme Court

Page 333

471 P.2d 333

The STATE of Wyoming, Plaintiff, v. John Pius MOSS, Defendant.

No. 3813.

Supreme Court of Wyoming.

June 22, 1970.

James E. Barrett, Atty. Gen., Fred C. Reed, Asst. Atty. Gen., Cheyenne, for plaintiff.

Daniel P. Svilar, Lander, for defendant.

Richard V. Thomas, U. S. Atty., Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, for the United States, amicus curiae.

Marvin J. Sonosky, Washington, D. C., for Shoshone Indian Tribe, amicus curiae.

Glen A. Wilkinson, Washington, D. C., for Arapahoe Indian Tribe, amicus curiae.

Teno Roncalio, Roncalio, Graves & Smyth, Cheyenne, (local counsel), amicus curiae.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Justice PARKER delivered the opinion of the court.

This cause is before us on a bill of exceptions, filed by the Prosecuting Attorney of Fremont County and presented here by the Wyoming Attorney General, pursuant to §§ 7-288-7-291, W.S.1957. The bill challenges an order of the trial court dismissing for lack of jurisdiction a charge of first-degree murder against John Pius Moss, a member of the Northern Arapahoe Indian Tribe, for the killing of Eva Clara Holmes. The finding of the trial court is unquestioned that the alleged crime was committed on deceased's property within the limits of the City of Riverton on the corner of Fourth Street and Monroe Avenue, which property had formerly been an allotment of an 80-acre tract to the heirs (members of the Arapahoe Indian Tribe) of one All Sings, the land being later patented, sold to a white man, and thereafter dedicated to the City of Riverton. The court further found that the offense was one of those included in 18 U.S.C. § 1153 (Supp. V, 1965-1969), was committed within the exterior limits of the Wind River. Indian Reservation-which is 'Indian country' as described in 18 U.S.C. § 1151-and hence was within the exclusive jurisdiction of the United States.

Facts as to the occurrences at the time of and immediately preceding the alleged crime are here unimportant since it is agreed by all concerned that the situs was, as found by the trial court, within the Riverton city limits. Accordingly, the sole question for determination is one of law, that is, whether the scene of the crime as under the jurisdiction of the United States or the State of Wyoming. ¹

The United States of America, through the Wyoming District Attorney, and the Shoshone and Arapahoe Tribes, acting jointly, were permitted on request to present briefs and argument amici curiae, the Government supporting the State's views and the tribes those of defendant. A definitive resolution of the disputed point in addition to its immediate effect on the litigants is basic to future responsibility in the administration of justice and will depend in large measure on treaties and legislative history of the area to which we now allude.

By treaty of July 3, 1868, ratified in 1869, 15 Stat. 673, the Wind River Indian Reservation was established by the United States, embracing an area of approximately 3,000,000 acres and extending generally: 'commencing at the mouth of Owl creek and running due south to the crest of the divide between the Sweetwater and Papo Agie rivers; thence along the crest of said divide and the summit of Wind River mountains to the longitude of North Fork of Wind river; thence due north to mouth of said North Fork and up its channel to a point twenty miles above its mouth; thence in a straight line to head-waters of Owl creek and along middle of channel of Owl creek to place of beginning.' 15 Stat. at 674. This area included the present townsites of Thermopolis, Lander, and Riverton.

By the Brunot Agreement of 1872, ratified in 1874, ² the United States purchased some 700,000 acres on the southern end of the 1868 reservation, wherein Lander is now located. In 1897, ³ a 10-mile square area of the northeastern portion of the reservation was purchased by the United States, Thermopolis falling in this ceded area.

By agreement of April 21, 1904, approved March 3, 1905, 33 Stat. 1016, hereafter called the 1905 Act, approximately 1,480,000 acres of the reservation-over 50 percent-including the site of Riverton, was ceded to the United States, which cession is pivotal in the present controversy.

In 1934 the Secretary of the Interior was, with certain exceptions, authorized to restore to tribal ownership remaining surplus lands of any Indian reservation theretofore opened; ⁴ such lands under the 1905 Act were temporarily withdrawn from disposal; ⁵ and in 1939 Congress, inter alia, directed the Secretary of the Interior to establish land-use districts within the diminished and ceded portions of the Wind River Indian Reservation, to restore to tribal ownership all undisposed-of surplus or ceded lands within the land-use districts not under lease or permit to non-Indians, and to restore the balance of said lands progressively as the non-Indian owned lands within a given land-use district were acquired. ⁶

In 1953 Congress provided compensation to the Shoeshone and Arapahoe Tribes for certain lands of the Riverton reclamation project within the portion of the Wind River Indian Reservation ceded by the 1905 Act. ⁷ This project was a few miles northwest of the present town of Riverton, and the 1953 Act is relevant only peripherally for any bearing it may have had on the decision of this court in Blackburn v. State, Wyo., 357 P.2d 174.

To summarize the history for clearer understanding of our discussion, acts of Congress following agreements by treaty or otherwise with the Indians:

(a) In 1869 established the Wind River Indian Reservation;

(b) In 1874 confirmed the Brunot cession;

(c) In 1897 purchased additional lands within the original reservation;

(d) In 1905 secured by a cession from the Indian tribes all the lands north and east of Wind River and southeast of the Popo Agie, being something more than 50 percent of the reservation, hereinafter called the ceded portion, including the townsite of Riverton and the reclamation project;

(e) In 1939 authorized certain restoration of the lands ceded in 1905.

Ramified as is the recounted legislative and treaty history of the original reservation, the solution of our problem turns on two points, was the treaty and 1905 Act a disestablishment of the reservation as to portions ceded, and if so, what was the effect of the 1939 Act.

In its argument in support of the bill of exceptions, the State points out that: the land on which the alleged murder occurred was originally allotted to the heirs of All Sings in 1887; after the 1905 Act this allotment was among those lands in the ceded portion; it therefore fell within the exception to the Act requiring a trust deed to issue to those Indians claiming lands within the ceded portion; trust deed was issued to the heirs in 1907; in 1914 the land was sold by the heirs to a non-Indian and a fee patent issued from the Government on January 10, 1914; and in 1918 the land was annexed to the City of Riverton. The State argues that the fact the real property in question is presently in fee-simple title is important in order to demonstrate and prove that, under applicable law, jurisdiction over it is in the State of Wyoming, citing Blackburn v. State, supra, as holding under similar facts that the United States did not have exclusive jurisdiction over crimes committed on lands originally part of the Wind River Indian Reservation but presently in fee-patent ownership of a non-Indian. The State also points to the words in Article I of the 1905 Act whereby the Indians on the Wind River Reservation did 'cede, grant, and relinquish to the United States, all right, title, and interest which they may have to all the lands embraced * * * (33 Stat. 1016).'

The defendant on the other hand emphasizes Article IX of the Act, which provided the United States was not bound to purchase any of the land but would act as trustee to dispose of it, paying over to the tribes the proceeds, and refers often to their 'title' rather than their beneficial interest. In his view the treaty and 1905 Act effected a trust arrangement. He, therefore, assumes without basis that the Indians retained title to the lands and proceeds from this premise to his desired answer that the crime here charged was within the provisions of 18 U.S.C. § 1153 (Supp. V, 1965-1969) ⁸ relating to offenses 'within the Indian country' as such country is defined in 18 U.S.C. § 1151, ⁹ citing as controllong Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346, and Beardslee v. United States, 8 Cir., 387 F.2d 280.

In the Seymour case, the State of Washington had taken the position that a 1906 Act of Congress, 34 Stat. 80, implemented by a 1916 Presidential Proclamation, had wiped out the Colville Reservation, the Act having provided for the sale of mineral lands and settlement under the homestead laws of other surplus lands on the reservation after specified allotments to the Colville Indians. The Supreme Court observed, 368 U.S. at 355, 356, 82 S.Ct. at 427, that the 1906 Act referred to the Colville Reservation 'in a manner that makes it clear that the intention of Congress was that the reservation should continue to exist as such. * * * The Act did not no more than open the way for non-Indian settlers to own land on the reservation * * *'; pointed out that through the years since 1906 Congress had explicitly recognized the continued existence of Colville as an Indian reservation; and said that the state courts had erred in holding the 1906 Act dissolved the reservation. We see no parallel between that 1906 Act and the 1905 Act with which we are here confronted. It can, however, be said that Seymour clearly held the limits of a reservation are not diminished by the actual purchase of land within it by non-Indians or the dedication to the public interest of lands encompassed within an authorized townsite plot.

In the Beardslee case, a...