State v. Rufus

• Decision Date: 12 June 1931
• Citation: 205 Wis. 317,237 N.W. 67
• Parties: STATE v. RUFUS.
• Court: Wisconsin Supreme Court

205 Wis. 317

237 N.W. 67

STATE

v.RUFUS.

Supreme Court of Wisconsin.

June 12, 1931.

Reported from the Circuit Court for Ashland County; G. N. Risjord, Circuit Judge.

Frank Rufus was convicted of statutory rape, and proceedings were stayed and case reported to Supreme Court for answer to certified question.--[By Editorial Staff.]

Question answered.

The defendant was tried and convicted by the court, without a jury, pursuant to waiver of a jury trial. The defendant was charged with two separate and distinct violations of section 340.47 of the Wisconsin Statutes. Proceedings were thereupon stayed and the case was reported to this court pursuant to the provisions of section 358.08 for answer to the question certified.

The report and question, omitting the title, are as follows: “The above named defendant was arrested and brought into the Municipal Court for Ashland County on a warrant dated November 8, 1930, charging him with violation of section 340.47 of the Wisconsin Statutes of 1929, commonly called statutory rape, and after hearing there, was bound over to the Circuit Court for Ashland County. In this court, the District Attorney filed an information, charging the defendant with violation of this statute on two counts, namely, alleging that the defendant had sexual intercourse with a girl of the age of sixteen years, the defendant being over the age of eighteen, and that the offense took place on November 2, 1930. In the second count, the defendant was charged with the same offense, taking place on the 7th of November, 1930, both in Ashland County.

“The case was called for trial in the Circuit Court for Ashland County on February 3, 1931, at a regular session of that court, the defendant appearing in person and by his attorney, W. J. Kershaw, Esq., the state being represented by the District Attorney for Ashland County, G. Arthur Johnson, Esq.

When the case was called, the defendant, in person and by his attorney, waived a jury trial, and requested that he be tried by the court. Thereupon, a trial was had, and after the State's evidence was in, the defendant, by his attorney, moved that the defendant be discharged for the reason that the court had no jurisdiction of the person of the defendant because the crime was committed by an Indian, member of an Indian tribe, upon an Indian girl, also of the same tribe of Indians, and upon an Indian reservation in Ashland County. The motion was denied. The defendant objected to further proceedings on the same ground, but it was overruled by the court, and the testimony taken. Whereupon, it appears that the defendant is a Chippewa Indian, enrolled as a member of the band of Chippewa Indians of the Bad River Reservation in Ashland County. The sexual intercourse took place between the defendant and the girl in question upon the dates alleged in the information. That the girl was at the time of the intercourse sixteen years of age, also an Indian, and member of the same tribe, and that the offense was committed in the defendant's sister's home, located upon the Indian reservation, her husband owning the house, but not the land, it being tribal land. That the defendant was enrolled as a memberof the tribe when he was about four years of age, and is still a member; that he has an allotment, and has received no certificate of competency. That the girl is also an allottee, and that she and her parents too are enrolled as members of the said tribe of Indians. After the evidence was all in, the defendant, by his attorney, again moved to acquit the defendant on the same ground, which motion was denied, and the court found the defendant guilty on both counts of the information, after which defendant moved in arrest of judgment on the same grounds.

The court being of the opinion that there is a serious question as to whether or not it has jurisdiction of the person of the defendant, and the question is one of law and so doubtful as to require the decision of the Supreme Court before the defendant is sentenced, and the defendant having in open court consented that the question be submitted to the Supreme Court of this state for a decision, I hereby certify to the Supreme Court of the State of Wisconsin for its decision the following question:

Has this court jurisdiction to try and determine a prosecution by the State of the crime of statutory rape, under section 340.47 of the Wisconsin Statutes of 1929,--the defendant being over the age of eighteen years, and the female under the age of eighteen years, and about sixteen years of age, at the time of the commission of the offense,--both the defendant and the female being Indians, enrolled members of the Chippewa Band of Indians of the Bad River Reservation located in this county, both living on that reservation, and the offense committed thereon?

Witness the seal of said Circuit Court of Ashland County and the signature of the presiding Judge of said court hereto, this third day of March, 1931.

G. N. Risjord,

Circuit Judge.”

John W. Reynolds, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and G. Arthur Johnson, Dist. Atty., of Ashland, for the State.

W. J. Kershaw, of Milwaukee, for defendant.

NELSON, J.

The question reported inquires as to the jurisdiction of a state court to entertain a 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 having tribal relations and residing upon a reservation. This question is an important one, not only to the state of Wisconsin but also to all tribal Indians still residing upon Indian reservations located within this state.

As early as 1879 this court, in State v. Doxtater, 47 Wis. 278, 2 N. W. 439, 447, which was a case of first impression in this court and substantially this same question, held that, when not restricted by existing treaties with Indian tribes, or by an act admitting a state into the Union, and not restricted by the authority of Congress under the Federal Constitution to “regulate commerce with the Indian tribes,” the jurisdiction of a state extended to all members of such tribes within the territorial limits of the state; that the criminal laws of this state applied to the Indians on their reservations and that the circuit court had jurisdiction of all violations of the criminal laws, whether by Indians or others, committed upon Indian reservations. In this case an Indian was prosecuted in the circuit court of Brown county for the crime of adultery with a white woman, committed upon the Oneida Indian Reservation. Doxtater, the Indian, was convicted, as was also the woman. State v. Harris, 47 Wis. 298, 2 N. W. 543.

It is manifest that if the opinion of the court in State v. Doxtater, is sound, then the answer to the question reported should be ruled by that case and would require little effort to answer.

The opinion in the Doxtater Case is based upon several propositions of law which, in the light of later controlling decisions of the United States Supreme Court, must be considered unsound. The court held that, “after the passage of the act of congress of 1834, upon the formation of any state out of the country designated in that act as the Indian country, and its admission into the Union on equal terms with the original states, the jurisdiction of the United States to punish for crimes committed upon the Indian reservations within the state would be lost, unless reserved by the act admitting such state into Union” and that “the power to punish crimes after that, upon the reservations within the state, must be either vested in the state or remain with the tribes themselves”; that “the jurisdiction of the state, when not restricted by existing treaties made with the tribes, or by the act admitting the state into the Union, is supreme over the subject, and extends to all persons and places within the state” and that “the criminal laws of the state were intended to apply to the Indians living upon the reservations therein.”

The following quotations taken from the opinion of Mr. Justice Taylor in State v. Doxtater, are illustrative of the views of the court entertained at that time, in the light of the then existing laws and decisions. Page 291 of 47 Wis., 2 N. W. 439, 447, “Unless the jurisdiction of the state over the territory occupied by the Indians within its boundaries is prohibited by the act admitting the state into the Union, or by some existing treaty with the Indians occupying such territory at the time of its admission, there does not seem to be any authority in congress to pass laws for the government or control of such Indians, or to prohibit the states from passing such laws, except the provision of the constitution which authorizes congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. Under this provision of the constitution congress has passed laws regulating trade with the Indians, requiring the taking out of licenses for that purpose, prohibiting the selling of intoxicating liquors to them, and other things which come within the power to regulate commerce, but it never has been contended that under this provision congress had the power to pass laws generally for the punishment of crimes committed on these reservations, either by Indians or other persons.”

This court, after a consideration of the then existing authorities, entertained no doubt that the criminal laws of this state applied to the Indians on their reservations within this state.

A reading of the opinion by Mr. Justice Taylor reveals that the conclusions arrived at were the result of an extended study and consideration of the then existing decisions of both the federal and state courts. That great confusion existed among the decisions relating to Indians prior to the enactment by Congress of the law of 1885 (23 Stat. 362) hereinafter specifically set forth, is perfectly apparent when the numerous and...