Tubby v. State

• Decision Date: 27 January 1976
• Docket Number: No. 48799,48799
• Citation: 327 So.2d 272
• Parties: Leon TUBBY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 272

327 So.2d 272

Leon TUBBY v. STATE of Mississippi.

No. 48799.

Supreme Court of Mississippi.

Jan. 27, 1976.

Rehearing Denied Feb. 24, 1976.

Edwin R. Smith, Philadelphia, for appellant.

A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for appellee.

Before INZER, WALKER and BROOM, JJ.

RODGERS, Presiding Justice.

This case came to this Court from the Circuit Court of Neshoba County, Mississippi. The appellant Leon Tubby was convicted of arson and sentenced to serve a term of five (5) years in the Mississippi State Penitentiary. He has appealed to this Court and now contends that the judgment of the trial court should be reversed because, it is said, that (1) the trial court did not have jurisdiction to try a Choctaw Indian for crimes committed in 'Indian country;' and (2) the grand jury had no authority to return as indictment at the next term of court after the term for which it was originally impanelled. It is argued that in any case the grand jury was 'all white,' that Negroes and Indians were systematically excluded from the grand juries of Neshoba County.

The appellant, Leon Tubby, a Choctaw Indian was indicted by an all-white Neshoba County Grand Jury at the September, 1974 Term of court for having committed arson on a dwelling house, the property of Emma T. Anderson, a Choctaw Indian, in July of 1974. The land was acquired by a deed of conveyance by which an undivided one-eighth (1/8) interest of Kenneth Rea and the undivided one-eighth (1/8) interest of Donna Rea were conveyed to Emma Tuffamah Anderson, and a warranty deed whereby the undivided six-eighths (6/8) interest of Mrs. Evelyn Rea and Jimmy Rea was likewise conveyed to Emma Tuffamah Anderson. The documents were signed and delivered January 19, 1963, and were duly recorded in Land Record Deed Book A-57 at pages 308 and 310, respectively. The land was purchased for Emma Anderson, a Choctaw Indian, with trust funds held by the United States, subject to disbursement under the supervision of the Secretary of the Interior. Appellant filed a Motion to Dismiss for Lack of Jurisdiction upon the ground that this arson allegedly took place on Indian Allotment Land which allegedly under the authority of 18 U.S.C.A. Indians § 1151(c), at 51 (1966), is 'Indian county.' The defense contended that the 'Major Crimes Act,' 18 U.S.C.A. Indians § 1153, at 69 (1966) made the crime, when committed by an Indian, cognizable only in the federal court system. The trial court overruled this motion, and it is now before us for consideration on this appeal.

The trial court also overruled defendant's Motion to Quash the Indictment because of allegedly systematic exclusion of Indians and Negroes from the grand jury. At the hearing on the Motion to Quash, it

was stipulated that the grand jury indicting Leon Tubby was the same grand jury that had been convened for the September, 1973 Term of the circuit court and that it was subsequently recalled for both the February, 1974 Term and the September, 1974 Term. The jury returned a verdict of 'guilty,' and the defendant was sentenced to the Mississippi State Penitentiary at Parchman for a period of five (5) years. Defendant's Motion for a New Trial was overruled; whereupon, an appeal to this Court has been perfected.

APPLICABLE LAW

Reviewing the alleged errors as presented by the appellant, we find no reversible error in the contention that there has been a systematic exclusion of the Negroes and Indians from the grand juries of Neshoba County. The stipulation of the state and defendant shows that there are only seven hundred and twenty-four (724) adult Choctaw Indians in Neshoba County, and since the names of prospective jurors must be drawn from the list of voters, or persons who own real estate (Mississippi Code Annotated § 13-5-1 (1972)) ¹ it is difficult to get the names of persons who do not vote and do not own real property. Nevertheless, the record before us shows that Indians and Negroes were on the jury venire from which the grand jury was drawn. Moreover, since this case must be reversed, this issue may not be presented on a new trial.

The second assignment of error wherein the appellant contended during the trial, and now contends here, that the indictment is void, is well taken. A grand jury may be impanelled at a regular term of court, and it may be recalled at any time before the next criminal term of court in term time or in vacation, but when a new criminal court is convened, a new grand jury must be impanelled. The old grand jury may, however, report indictments obtained in vacation when it makes its final report for final discharge, but, the old grand jury cannot hear evidence and obtain indictments at the second term of the criminal court.

Section 2436, Mississippi Code Annotated 1942 (Rec. 1956) is not applicable to the We, therefore, sustain the appellant's motion to strike the indictment here involved.

facts in this case since the indictment was returned by a body of men who were no longer authorized to act as grand jurors. See Joyce v. State, Miss., 327 So.2d 255, 1976.

Since the jurisdiction of the trial court has been challenged to try the appellant, a Choctaw Indian, for a crime alleged to have occurred in 'Indian country' against another Choctaw Indian, we are constrained to discuss this issue for the guidance of the trial court on a new trial, if any, of this case.

The appellant contends that the property here involved is 'Indian country' under the alleged authority of 18 U.S.C.A. Indians § 1151(c), at 51 (1966). ²

He then argues that 18 U.S.C.A. Indians § 1153, at 69 (1966) gives exclusive jurisdiction to the federal court to try the major crimes listed therein, including the charge here involved. The section was amended. See Footnote ³

The appellant's contention is that since the United States has authority under Art. I, § VIII (3), U.S.Const. ⁴ to regulate commerce with 'the Indian Tribes' it has authority to purchase land in a state with money due the tribe and thereby obtain exclusive criminal jurisdiction over the land so purchased.

The appellant cites several cases which, in our judgment, do not apply. The case of United States v. Klamath and Moadoc Tribes of Indians, et al., 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219, 86 Ct.Cl. 614 (1938), simply holds that although the Indians in that reservation are wards of the government, nevertheless, the government could not swap their land for other land and cut their timber without their consent and without compensation.

The appellant cites Wolfe v. Phillips, 172 F.2d 481 (C.A. 10th Okl.1949), to support his argument that 'the power of Congress to legislate with respect to its Indian wards is paramount and plenary.' This case arose in Oklahoma where the five civilized tribes were located. These tribes included the Choctaw Indians who elected to move The state of Oklahoma passed a law making their statute of limitations applicable to the five civilized tribes. The court in that case held that the state could pass laws where the federal government had not enacted laws with respect thereto.

west by choice under the terms of the Dancing Rabbit Creek Treaty.

The case of In re Colwash, 57 Wash.2d 196, 356 P.2d 994 (1960), dealt with a minor of the Yakima Indian tribe. The sole question presented to the Supreme Court of Washington was whether the juvenile court of Yakima County had jurisdiction over minor children, including Indian children of the Yakima tribe. The Washington Supreme Court held that the United States Court had jurisdiction of the children of this Indian tribe.

Obviously these cases are not authority to support the contention of the appellant under the facts here presented for our consideration.

The fallacy of appellant's argument begins with his theory that the property here involved is 'Indian country.' Appellant points to 18 U.S.C.A. Indians § 1151, at 51 (1966) ³ in support of his claim. This portion of § 1151 is in the following language: '(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.' (Emphasis added) Obviously, this means land, and rights-of-way running through the same, where the Indian titles to which have not been extinguished. This could not mean money held by the government due to individual Indians with which the United States has purchased land in a sovereign state of the union where the Indian title to such land has been extinguished by treaty and government patents to individuals.

I.

There are at least four reasons why the property here involved is not 'Indian country.'

First, the Choctaw Indian tribe ceded to the United States all their lands in Mississippi on September 27-28, 1830, and this treaty (except for the first paragraph thereof) was ratified by the Congress on February 24, 1831. See 7 Peters' Comp. 333. ⁵

The cession of Indian property to the general government extinguished all rights and titles the Indians had in land in Mississippi except that patented to individual Indians. See Minter v. Shirley, 45 Miss. 376 (1871); Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903); New York Indians v. United States, 170 U.S. 1, 18 S.Ct. 531, 42 L.Ed. 927 (1898); Best v. Polk, 85 U.S. (18 Wall.) 112, 21 L.Ed. 805 (1873); Strother v. Cathey, 5 N.C. 162 (1807).

The Choctaw Indian Nation moved out of Mississippi into Arkansas and finally into the Oklahoma Territory where it became one of the five civilized tribes. The tribe lived on its own reservation in Oklahoma until its territory was broken up and patented to individual Indians.

The land ceded to the United States by the Choctaw Nation was patented many years ago to persons who moved into the Choctaw territory. The Indians who remained in Mississippi became citizens of Mississippi and subject to the laws of this state. The lands allotted to the Indians under the fourteenth section of the Dancing Rabbit Creek...