State v. Youpee

• Decision Date: 01 October 1936
• Docket Number: 7567.
• Citation: 61 P.2d 832,103 Mont. 86
• Parties: STATE v. YOUPEE.
• Court: Montana Supreme Court

61 P.2d 832

103 Mont. 86

STATE v. YOUPEE.

No. 7567.

Supreme Court of Montana

October 1, 1936

Appeal from District Court, Roosevelt County; S.E. Paul, Judge.

William Youpee was convicted of statutory rape, and he appeals.

Affirmed.

Frank L. Benson, of Poplar, and Hugh N. Marron, of Wolf Point, for appellant.

Raymond T. Nagle, Atty. Gen., and C.J. Dousman, Asst. Atty. Gen., for the State.

MORRIS Justice.

The defendant was convicted in the district court of Roosevelt county on a charge of statutory rape. Defendant and his victim were tribal Indians living on the Fort Peck Indian Reservation and both were allottees of land on that reservation to which patent in fee had not been issued, but the crime was committed in the town of Culbertson, in Roosevelt county, which is located five miles or more from the nearest point of the reservation. The fact that the crime was committed off the Indian reservation is not in issue. The Indian minor upon whom the rape was committed was sixteen years of age and not the wife of the defendant. At the close of the state's case, defendant moved for a directed verdict, which was denied, and, on conviction of the defendant as charged, his counsel moved for a new trial which was also denied. The case comes here on appeal from the judgment and denial of the motion for a new trial. Three specifications of error are alleged, but all turn on the question of the jurisdiction of the state court to take cognizance of the crime.

It may be taken as settled beyond controversy that, where a crime is committed within the boundaries of a state, the state courts have exclusive jurisdiction to try the defendant, unless some specific federal law vests jurisdiction in the federal courts. These specific laws, to be controlling here, must be found in the Federal Constitution, the acts of Congress, our Enabling Act or treaties between the United States and the tribe of Indians to which the defendant belongs. The only specific reference to Indians in the Federal Constitution is in section 8, article 1, which relates solely to the question of the regulation of commerce between the United States and Indian tribes. Article 1, subdivision 2, section 4, of the Enabling Act, provides that the state shall disclaim any right or title to any Indian lands within the state and shall not tax the same, and that absolute jurisdiction and control shall remain in the United States until the title of the United States is extinguished. The title of the United States may be extinguished by allotment of the Indian lands and a patent in fee, free from any trust provisions either by specific grant or expiration of the trust period specified in the allotment deed. United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 400, 58 L.Ed. 676.

The great majority of the actions involving the question of jurisdiction of Indian crimes have arisen out of whether the locus in quo of the action was Indian country or not, no reference being made to Indians being wards of the government. 31 Corpus Juris, p. 528, § 105, says: "The term [Indian country] applies to all the country to which the Indian title has not been extinguished, within the limits of the United States, whether within a reservation expressly set apart for the exclusive occupancy of Indians or not. *** The criterion to determine whether a particular place has ceased to be Indian country is whether the Indian title to the land has or has not been extinguished." This, of course refers to the Indian title held by the federal government for the Indians, not the title held by individual Indians of land to which they have title in fee, free from trust restrictions. United states v. Pelican, supra.

The question of jurisdiction between the federal and state courts has been passed upon in the following federal criminal cases among others, where both the defendant and his victim were Indians, and the crime was committed in Indian country: United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228; United States v. Thomas, 151 U.S. 577, 14 S.Ct. 426, 38 L.Ed. 276; United States v. Pelican, supra. Counsel for defendant cites the Kagama Case and quotes freely from the decision in support of their contention that the state is without jurisdiction. On page 5 of their brief they quote the last paragraph of the decision and then follow it with two paragraphs that appear in prior parts of that decision. This arrangement does not readily give the correct impression of what that case decides, and tends to confuse the question on which the court predicates its decision, the question there being "whether the courts of the United States have jurisdiction or authority to try and punish an Indian belonging to an Indian tribe, for committing the crime of murder upon another Indian belonging to the same tribe, both sustaining the usual tribal relations, said crime having been committed upon an Indian reservation made and set apart for the use of the Indian tribe to which said Indians both belonged." This was the major of the two questions which the opinion determined in the controversy, and the facts are on all fours with the facts in the case at bar except the crime in that case was committed on an Indian reservation under the exclusive jurisdiction of the federal court while here the offense was committed in a town more than five miles removed from the reservation where both Indians had their domicile.

Justice Hughes, in speaking for the Court in the Pelican Case, supra, said in the closing paragraph of that opinion: "The deceased must be regarded as one who was still under the government's care. Congress had not terminated that relation, and the commission of a crime against his person upon Indian lands, such as we have found the allotted lands in question to be, was punishable under the laws of the United States." Throughout practically all the cases, it will be found that no court has held that crimes committed on lands, under the control and supervision of the state, come under the jurisdiction of the federal courts unless, as in cases prosecuted for selling liquor to Indians, such as United States Express Co. v. Friedman (C.C.A.) 191 F. 673, Congress has specifically provided for federal jurisdiction.

We find no statute or decision, either federal or state, which by any reasonable construction supports the contention of the defendant that his alleged offense is triable by the federal court. In United States v. Lewis et al. (D.C.) 253 F. 469, three Indians were indicted for the murder of a fourth. The Indians were all wards of the government; the place where the crime was committed was the homestead of an Indian burdened with the 25-year trust restriction, which had not expired. The United States attorney, so the opinion states, relied upon Donnelly v. United States, 228 U.S. 243, 268, 33 S.Ct. 449, 57 L.Ed. 820, Ann.Cas.1913E 710, and upon United States v. Kagama, supra. Defendants demurred to the indictment, setting out want of jurisdiction of the federal court. The court sustained the defendants' demurrer under the provisions of section 272 of the Criminal Code, 18 U.S.C.A. § 451, which is in part as follows: "The crimes and offenses defined in this chapter shall be punished as herein prescribed: *** Third. When committed within or on any lands reserved or acquired for the exclusive use of the United States, and under the exclusive jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort,...