State v. Shepard

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtFOWLER
Citation239 Wis. 345,300 N.W. 905
PartiesSTATE v. SHEPARD.
Decision Date02 December 1941

239 Wis. 345
300 N.W. 905

STATE
v.
SHEPARD.

Supreme Court of Wisconsin.

Dec. 2, 1941.


Certification of Questions for Answer under sec. 358.08 Wisconsin Stats. by the Circuit Court for Forest County; Arold F. Murphy, Circuit Judge.

Proceeding by the State of Wisconsin against Frank Shepard, also known as Frank Sheppo, for violating the state game laws. The defendant appealed to the circuit court from judgment of a justice of the peace. On questions certified by the circuit court to the Supreme Court.-[By Editorial Staff.]

Question No. 1 answered “No”; Question No. 2 answered “Yes.”

[300 N.W. 906]

John E. Martin, Atty. Gen., Warren H. Resh, Asst. Atty. Gen., Col. A. H. Smith, of Madison, and S. J. Conway, Dist. Atty., of Crandon, for plaintiff.

Edward W. Schenk, of Wabeno, for defendant.


FOWLER, Justice.

The defendant was convicted before a justice of the peace of an offense under the State game laws. He appealed to the circuit court where he waived a jury. On trial to the court the facts were stipulated to be as follows:

“One Nelson Shepard, an Indian, killed a deer on or about the 2nd day of May, 1938, on land occupied by his father, Frank Shepard, an Indian duly enrolled in the band of the Pottawatomi Indian Tribe. Nelson Shepard gave half the deer to Frank Shepard his father.

“On the 7th day of June, a Conservation Warden arrested Nelson Shepard, who admitted killing the deer, and was fined. Frank Shepard was also arrested, admitting having received half of the deer, but defended his rights to the possession thereof by virtue of he being an Indian residing upon land held in trust by the United States Government, for the benefit of the Pottawatomi Indians. His defense is, and was, that the State Conservation Warden had no authority or jurisdiction to arrest him for the possession of venison killed upon government land and possessed by Indians thereon.

“The land upon which the Indians reside was deeded to the Government of the United States of America, to have and to hold the same forever, and particularly for the purpose of allotments to individual members of the Wisconsin Band of Pottawatomi Indians residing in the States of Wisconsin and Michigan, as provided in the Act of Congress of June 30, 1913.

“The status of the Indian, by virtue of the Act of Congress of 1924, makes all Indians born within the territory of the United States, citizens thereof, and the said Act in no way limits or abridges the guardianship of the United States of America with reference to the control of their property.

“The Justice Court found that Frank Shepard was guilty of illegal possession of venison in closed season, contrary to and in violation of sec. 29.39 of the Wisconsin Statutes, and thereupon sentenced said defendant, Frank Shepard, to thirty (30) days in the Forest County Jail, from which sentence Frank Shepard appeals.”

On the stipulated facts the circuit court found the defendant guilty. Being in doubt whether the defendant should be sentenced on this finding the court certified the following questions to this court for answer, pursuant to sec. 358.08 Stats.:

“1. Does the State of Wisconsin lose its sovereignty and criminal jurisdiction over lands acquired by the U. S. Government in the State of Wisconsin where such lands are not acquired pursuant to an enabling act duly enacted by the legislature, but in a proprietary manner?

“2. May a state conservation warden lawfully arrest a tribal Indian, residing on lands acquired by the United States in a proprietary manner, for a violation of State fish and game laws committed on such lands?”

The case turns on whether in criminal matters the land on which the defendant was in possession of the venison is under the jurisdiction of the United States or the State.

The defendant bases his claim that the jurisdiction stated is in the United States primarily on Art. I, sec. 8, cl. 17 of the United States Constitution which provides that

“The Congress shall have Power *** to exercise exclusive Legislation in all Cases whatsoever *** over all Places purchased by the consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;-And

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Clause 18.

There is no question that had the defendant possessed the venison on land needful for any purpose purchased by the United States with the consent of the State, the State would have no jurisdiction to prosecute him for the offense charged. United States v. Francisco Unzeuta, 1930, 281 U.S. 138, 50 S.Ct. 284, 74 L.Ed. 761. Sec. 1.01, Wis.Stats. declares that-

“The sovereignty and jurisdiction of this state extend to all places within the

[300 N.W. 907]

boundaries thereof *** subject only to such rights of jurisdiction as have been or shall be acquired by the United States over any places therein.”

Section 1.02, Wis.Stats. originally enacted in 1867, declares that

...

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2 practice notes
  • Tubby v. State, No. 48799
    • United States
    • United States State Supreme Court of Mississippi
    • January 27, 1976
    ...private property within the state.' (Emphasis added) 281 U.S. at 651, 50 S.Ct. at 456, 74 L.Ed. at 1094. In the case of State v. Shepard, 239 Wis. 345, 300 N.W. 905 (1941), the Wisconsin Supreme Court held in a well-documented opinion that where the land on which the crime was committed was......
  • Wis. Dep't of Taxation v. Miller
    • United States
    • United States State Supreme Court of Wisconsin
    • December 2, 1941
    ...Case. [3] Counsel contend that the statute has been generally construed by the taxing authorities of the state to mean that a taxpayer [300 N.W. 905]sustaining losses in the course of buying and selling securities as did the plaintiff is entitled to deduct losses from the tax base of the em......
2 cases
  • Tubby v. State, No. 48799
    • United States
    • United States State Supreme Court of Mississippi
    • January 27, 1976
    ...private property within the state.' (Emphasis added) 281 U.S. at 651, 50 S.Ct. at 456, 74 L.Ed. at 1094. In the case of State v. Shepard, 239 Wis. 345, 300 N.W. 905 (1941), the Wisconsin Supreme Court held in a well-documented opinion that where the land on which the crime was committed was......
  • Wis. Dep't of Taxation v. Miller
    • United States
    • United States State Supreme Court of Wisconsin
    • December 2, 1941
    ...Case. [3] Counsel contend that the statute has been generally construed by the taxing authorities of the state to mean that a taxpayer [300 N.W. 905]sustaining losses in the course of buying and selling securities as did the plaintiff is entitled to deduct losses from the tax base of the em......

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