State v. Tucker

• Decision Date: 11 March 1941
• Citation: 296 N.W. 645,237 Wis. 310
• Parties: STATE v. TUCKER.
• Court: Wisconsin Supreme Court

237 Wis. 310

296 N.W. 645

STATE

v.TUCKER.

Supreme Court of Wisconsin.

March 11, 1941.

Appeal from a judgment of the Circuit Court for Shawano County; Edgar V. Werner, Judge.

Affirmed.

Ralph Tucker was charged with violation of sec. 85.01, Stats., which provides that no motor truck or trailer or semi-trailer used in connection therewith shall be operated upon any highway unless the same shall have been registered in the office of the secretary of state and the registration fee paid. Defendant was adjudged guilty and sentenced on August 16, 1939, to pay a fine and in addition thereto the statutory registration fee. From this judgment defendant appeals.

Norman M. Littell, Asst. Atty. Gen., of Washington, D. C., B. J. Husting, U. S. Atty., of Mayville, E. J. Koelzer, Asst. U. S. Atty., of Milwaukee, and Charles R. Denny, Jr., Norman MacDonald, and Marvin J. Sonosky, all of Washington, D. C., for appellant.

John E. Martin, Atty. Gen., William A. Platz, Asst. Atty. Gen., and O. B. Strossenreuther, Dist. Atty., of Shawano, for respondent.

WICKHEM, Justice.

The question is whether the state of Wisconsin may require defendant, a tribal Indian living on the Menominee Indian Reservation, to register his motor truck and pay a registration fee for its operation over that portion of a state trunk highway which is within the exterior boundaries of the Menominee Indian Reservation. Defendant contends that the United States government has sole jurisdiction over tribal Indians within this reservation, and that the grant of a right of way to the state to maintain a public highway through it has not brought Indian users of the right of way within the jurisdiction of the state.

The facts are not in dispute. Defendant is an enrolled member of the Menominee Tribe of Indians and lives on the Menominee Reservation, which is an unallotted reservation in tribal ownership. He was arrested on a portion of state highway No. 47, which was entirely within the boundaries of the reservation. He operated his truck solely upon this portion of the highway.State highway No. 47 was established across the reservation by permission of the Secretary of the Interior given pursuant to section 4, Ch. 832, Act of March 3, 1901, 31 Stat. 1084, 25 U.S.C.A. § 311. The truck and trailer were the property of defendant and had never been registered in the office of the secretary of state as required by sec. 85.01, Stats. The equipment was being used to haul logs from one part of the reservation to another.

It was held in State v. Rufus, 205 Wis. 317, 237 N.W. 67, the Wisconsin courts have no jurisdiction to punish crimes committed by tribal Indians on Indian reservations in the absence of legislation by Congress conferring such jurisdiction. In State v. Johnson, 212 Wis. 301, 249 N.W. 284, the jurisdiction of the state courts to try a crime committed on lands within the exterior boundaries of a reservation but which had been patented in fee to an Indian allottee was sustained. The question here is whether the grant by the federal government to the state of the right to construct, operate and maintain a state highway through the Indian reservation, although not divesting the United States of fee title, carries with it such complete power to regulate the use and occupancy of that highway as against all the public including the tribal Indians as to destroy the Indian title to the lands over which the right of way is given. At the outset there should be a brief consideration of the nature and scope of the grant by the federal government to the state. The act of Congress heretofore referred to provides: “The Secretary of the Interior is authorized to grant permission, upon compliance with such requirements as he may deem necessary, to the proper State or local authorities for the opening and establishment of public highways, in accordance with the laws of the State or Territory in which the lands are situated, through any Indian reservation or through any lands which have been allotted in severalty to any individual Indian under any laws or treaties but which have not been conveyed to the allottee with full power of alienation.”

Title 25, Code of Federal Regulations, sec. 256.53, a regulation of the United States Department of Interior relating to opening highways through Indian reservations, requires the assessment of damages and benefits in all such cases and the approval of the secretary of interior to such schedules of assessments. By article 2 of the Treaty with the Menominee as ratified January 23, 1849, 9 Stat. 952, the tribe sells and relinquishes to the United States all their lands in the state of Wisconsin. By article 2 of the Treaty with the Menominee dated May 12, 1854, 10 Stat. 1064, 1065, the United States agrees in return for cession of the lands to give the Indians certain described lands for a home. Article 3 of the Treaty with the Menominee ratified April 18, 1856, 11 Stat. 679, provides: “That all roads and highways, laid out by authority of law, shall have right of way through the lands of the said Indians on the same terms as are provided by law for their location through lands of citizens of the United States.” It is conceded that the grant to the state did not include the fee title to the lands over which a right of way was given, and the question is whether a grant of less than a fee was effective to destroy the Indian title.

[1] If is first necessary to determine the nature of this title. In Johnson v. M'Intosh, 8 Wheat. 543, 5 L.Ed. 681, it was held that the Indian title is a right to occupancy having nothing to do with the fee. This court laid down the same rule in Veeder v. Guppy, 3 Wis. 502, where it was said that the possession of a tract of land by Indians does not affect the validity of a conveyance of the fee by the federal government to a state or...