U.S. v. Burnett

• Decision Date: 21 November 1985
• Docket Number: No. 84-1453,84-1453
• Citation: 777 F.2d 593
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold Ed BURNETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 593

777 F.2d 593

UNITED STATES of America, Plaintiff-Appellee, v. Harold Ed BURNETT, Defendant-Appellant.

No. 84-1453.

United States Court of Appeals Tenth Circuit.

Nov. 21, 1985.

Art Fleak, Tulsa, Okl., for defendant-appellant.

Keith Ward, Asst. U.S. Atty. (Layn R. Phillips, U.S. Atty., and Ben F. Baker, Asst. U.S. Atty., on brief), Tulsa, Okl., for plaintiff-appellee.

Before HOLLOWAY, C.J., LOGAN, Circuit Judge and CARRIGAN District Judge ^*.

CARRIGAN, District Judge.

Harold Ed Burnett was convicted of first degree murder in the Northern District of Oklahoma. On appeal he asserts six grounds.

First, Burnett argues that the United States District Court lacked subject matter jurisdiction. The issue turns on whether the site of the killing is in "Indian country" subject to federal jurisdiction under 18 U.S.C. Sec. 1153 (1982). If it is not Indian country, the state of Oklahoma has exclusive jurisdiction.

The murder victim was Laban Marchmont Miles, a half-blood Osage Indian who was shot to death in his home on April 15, 1982. Miles resided on a restricted Osage homestead allotment near Pawhuska in Osage County, Oklahoma. On April 16, 1982, the District Attorney for Osage County filed an information charging Burnett, Michael L. Simpson, and Dale Lynn Jackson with first degree murder. Burnett and Jackson are also Indians. The state trial court, on its own motion, held that the State of Oklahoma lacked jurisdiction over the matter because the crime was committed in Indian country and thus federal jurisdiction was exclusive. The State of Oklahoma appealed and on November 7, 1983, the Oklahoma Court of Criminal Appeals affirmed the trial court's ruling. State of Oklahoma v. Burnett, 671 P.2d 1165 (Okla.Crim.App.1983).

Subsequently, an indictment was filed in the United States District Court for the Northern District of Oklahoma, charging Burnett, Simpson and Jackson with first degree murder. Burnett was tried by a jury and found guilty of first degree murder on February 24, 1984. He was sentenced to life imprisonment.

Pursuant to the Major Crimes Act, now codified as amended at 18 U.S.C. Sec. 1153 (1982), the United States has exclusive jurisdiction over any Indian who allegedly has committed within Indian country any of fourteen enumerated crimes, including murder. That Act, as amended, provides in pertinent part:

"Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnaping, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States."

"Indian country" is defined as follows in 18 U.S.C. Sec. 1151 (1982):

"Except as otherwise provided in sections 1154 and 1156 of this title [18 U.S.C. Secs. 1154 and 1156], the term "Indian country", as used in this chapter [18 U.S.C. Secs. 1151 et seq.], means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same."

Subsection (c) is the provision relevant here. Indian allotments were included in the definition of "Indian country" by authority of United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914), where the Supreme Court held that an Indian trust allotment, i.e., a fee title held by the United States in trust for an Indian allottee, is Indian country. In United States v. Ramsey, 271 U.S. 467, 46 S.Ct. 559, 70 L.Ed. 1039 (1926), the Supreme Court held that a restricted Osage allotment, in which fee title is held by an Indian allottee but the allottee cannot alienate the property without approval of the Secretary of the Interior, is also Indian country.

The parties stipulated in the district court that the land on which Miles was murdered was a restricted Osage allotment. (Record on appeal, pp. 27, 57, 62.) The United States argues that Ramsey governs the jurisdictional issue here.

Appellant, however, asserts that Ramsey is no longer good law. He argues that the Court's upholding of federal jurisdiction over crimes committed on a restricted allotment must be limited to recently allotted property while still held by the original "uncivilized" allottee. The victim here was not the original allottee of the land where he was killed; he inherited the allotment from his father, Laban Miles, Jr., in 1958. The 160-acre property was conveyed to Laban Miles, Jr., as his homestead allotment when the Osage Reservation was divided among its members in 1908 pursuant to the Act of June 28, 1906, ch. 3572, 34 Stat. 539, "An Act for the division of the lands and funds of the Osage Indians in Oklahoma territory, and for other purposes." In Ramsey, the Supreme Court held that the United States has authority over crimes committed within Indian country because:

"Indians are wards of the nation in respect of whom there is devolved upon the Federal Government 'the duty of protection, and with it the power.' United States v. Kagama, 118 U.S. 375, 384 [6 S.Ct. 1109, 1114, 30 L.Ed. 228]. The guardianship of the United States over the Osage Indians has not been abandoned; they are still wards of the nation, United States v. Osage County, 251 U.S. 128, 133 [40 S.Ct. 100, 101, 64 L.Ed. 184 (1919) ]; United States v. Nice, 241 U.S. 591, 598 [36 S.Ct. 696, 697, 60 L.Ed. 1192 (1916) ]; and it rests with Congress alone to determine when that relationship shall cease." 271 U.S. at 469, 46 S.Ct. at 560.

Burnett maintains that Congress has systematically limited its supervision over Indians, turning control over to state and tribal governments. In particular, Burnett asserts that Congress has relinquished its guardianship over Osage restricted allotments terminating any basis for federal jurisdiction over crimes committed thereon. Burnett also relies on two Tenth Circuit cases, Tooisgah v. United States, 186 F.2d 93 (10th Cir.1950), and Ellis v. Page, 351 F.2d 250 (10th Cir.1965), in support of his assertion that the State has jurisdiction over an Indian charged with committing murder on a restricted allotment.

Appellant has failed to persuade us that Ramsey is no longer binding precedent. Initially, we note our agreement with the analysis and conclusion of the Oklahoma Court of Criminal Appeals in State of Oklahoma v. Burnett, supra, 671 P.2d 1165. Turning to the arguments raised here, we disagree with the appellant's assertion that federal supervisory control over the Osage has terminated. The 1906 Act that allotted the Osage Reservation, 34 Stat. 539, 541, provided in part that each member's homestead allotment was inalienable and nontaxable for a period of twenty-five years, or during the life of the homestead allottee, and that surplus allotments were inalienable for twenty-five years and nontaxable for three years unless a certificate of competency was issued to the allottee. An Osage Indian could obtain a certificate of competency authorizing him or her to sell and convey any of the land deeded under the Act, except the homestead, if the Secretary of the Interior determined that the tribal member was fully competent, and capable of transacting business and caring for his or her own affairs. The Act also provided that oil, gas, coal and other minerals covered by the allotted lands were reserved to the Tribe, with all revenue therefrom held in trust by the United States.

The original 1906 Act has been amended numerous times, including by Act of March 3, 1921, ch. 120, 41 Stat. 1249; Act of February 27, 1925, ch. 359, 43 Stat. 1008; Act of March 2, 1929, ch. 493, 45 Stat. 1478; Act of June 24, 1938, ch. 645, 52 Stat. 1034; Act of February 5, 1948, P.L. 408, 62 Stat. 18; Act of October 6, 1964, P.L. 88-632, 78 Stat. 1008; and Act of October 21, 1978, P.L. 95-496, 92 Stat. 1660. The amendments have repeatedly extended the periods governing Osage property interests and have changed the nature of various restrictions on those interests. See F. Cohen, Handbook of Federal Indian Law, pp. 788-97 (1982 ed.), for a comprehensive discussion of restrictions on Osage property interests. As recently as 1978, Congress extended the trust and supervision periods until further act of Congress and provided that any Osage who had been issued a certificate of competency under any of the Acts of June 28, 1906, March 2, 1929 or February 5, 1948, could apply to the Secretary of the Interior to revoke the certificate, and thus return to the supervision of the Secretary. In sum, federal supervisory control, the essential quality which made a restricted Osage allotment Indian country in 1925 when Ramsey was decided, still exists to a significant degree today. We conclude that changes in federal supervision since 1925 have not been so substantial as to render Ramsey obsolete.

Likewise we hold that Burnett's reliance on Tooisgah v. United States and Ellis v. Page, supra, is misplaced. In neither case did this court decide the jurisdictional question contrary to Ramsey. Tooisgah dealt with an earlier version of the Major Crimes Act. When the murder in Tooisgah was committed in 1942, the statute provided for federal jurisdiction over the enumerated crimes when committed within any...