U.S. v. Cowboy, 81-2280

• Decision Date: 06 December 1982
• Docket Number: No. 81-2280,81-2280
• Citation: 694 F.2d 1228
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Mary Lucille COWBOY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1228

694 F.2d 1228

UNITED STATES of America, Plaintiff-Appellant, v. Mary Lucille COWBOY, Defendant-Appellee.

No. 81-2280.

United States Court of Appeals, Tenth Circuit.

Dec. 6, 1982.

Ezra H. Friedman, U.S. Atty., Department of Justice, Washington, D.C. (Richard A. Stacy, U.S. Atty. for the District of Wyoming, with him on the brief), for plaintiff-appellant.

Frederic C. Reed, Cheyenne, Wyo., for defendant-appellee.

Before HOLLOWAY, McWILLIAMS and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

This appeal presents an interesting jurisdictional question. The only issue before us is whether the district court was correct in Mary Cowboy is an enrolled member of the Arapahoe Tribe of the Wind River Reservation. She was charged by the United States Attorney with selling beer and liquor on two occasions to other enrolled Indians at her residence in Ethete, Wyoming, an Indian community within the boundaries of the Wind River Reservation. Trial was assigned to the United States magistrate. Prior to trial, the magistrate granted with prejudice Cowboy's motion to dismiss the Information for want of jurisdiction, holding that 18 U.S.C. Sec. 1154 is inapplicable to sales of liquor by Indians.

holding that federal jurisdiction does not exist over an alleged violation of one of the Indian liquor statutes, 18 U.S.C. Sec. 1154 (1976), by an Indian within Indian country.

The Government appealed to the district court, supported in its position by the Wind River Tribes as amicus curiae. The district court affirmed the magistrate's decision, and the Government appeals. We reverse.

I.

RELEVANT STATUTORY LAW

This case turns on the correct interpretation of four sections of Title 18 of the United States Code, defining certain crimes occurring in Indian country. Under section 1154, one of several statutes concerning the sale and possession of liquor in Indian country,

"[w]hoever sells, gives away, disposes of, exchanges, or barters any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, except for scientific, sacramental, medicinal or mechanical purposes, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian to whom an allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian who is a ward of the Government under charge of any Indian superintendent, or to any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and whoever introduces or attempts to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both."

18 U.S.C. Sec. 1154(a). Originally, section 1154 prohibited the sale of liquor to Indians regardless of the location of the transaction. See id.; United States v. Belt, 128 F. 168 (M.D.Pa.1904). However, in 1953 Congress enacted section 1161, which states that:

"The provisions of sections 1154, 1156, 3113, 3488, and 3618, of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register."

18 U.S.C. Sec. 1161 (1976). Section 1161 thus makes section 1154 applicable only in Indian country.

The third statute relevant to our inquiry is section 1152. This section, known as the General Crimes Act, provides that:

"Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.

"This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to 18 U.S.C. Sec. 1152 (1976).

any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."

II. THE OPINION BELOW

In the proceedings below, both the magistrate and the district court noted that sections 1154 and 1161 appear to vest federal subject matter jurisdiction over the alleged sales. Rec., vol. I, at 57-58, 149. However, the magistrate held that sections 1154 and 1161 must be read in conjunction with section 1152, and with a fourth statute, 18 U.S.C. Sec. 1153 (1976), the Major Crimes Act. ¹ The magistrate concluded that sections 1152 and 1153 operate to preclude federal jurisdiction over the alleged offense, and accordingly dismissed the Information.

The district court affirmed, holding that Cowboy, an Indian, is not subject to section 1154's prohibition. The court apparently reasoned that because section 1161 limits the applicability of section 1154 to acts committed within Indian country, section 1154 is now one of the "general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States," 18 U.S.C. Sec. 1152. The court then recited the "general rule" that, except for the offenses listed in section 1153, all crimes committed by enrolled Indians against other Indians within Indian country are subject to tribal jurisdiction. Rec., vol. I, at 51 (citing United States v. Antelope, 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977); United States v. Jackson, 600 F.2d 1283 (9th Cir.1979)). This proposition was in accordance with the court's apparent conclusions that Cowboy's action was a crime "committed by one Indian against the person or property of another Indian," ² 18 U.S.C. Sec. 1152, and that prosecution of Cowboy under section 1154 was therefore barred by section 1152.

The result of the court's rationale is that section 1154 applies only to sales by non-Indians within Indian country. We hold that the court's decision results from an erroneous reading of the interplay of sections 1152, 1153, 1154, and 1161, and a mistaken reliance upon the Supreme Court's dicta in Antelope.

III. DISCUSSION

A. Historical Development

Several of the statutes involved in this case, like many of the federal Indian laws, are products of a tangled statutory history. The relevant statutes have been frequently amended, and their statutory locations, first within the Revised Statutes and later within the United States Code, have been changed repeatedly. In many instances, the statutory language is ambiguous and sometimes seemingly contradictory. The case law relevant to our inquiry was written at various points throughout this history. Our interpretation, therefore, can not

be based solely on the statutes as they now stand, but must be grounded in an understanding of their evolution. To provide the context for our decision, we first review the development of the relevant law.

1. Section 1154

Section 1154 originated as section 20 of the 1834 Trade and Intercourse Act, ch. 161, 4 Stat. 729, 732, and has remained relatively unchanged except in its codification and juxtaposition with related statutory fragments. Originally, the statute made it illegal for "any person [to] sell, exchange, or give, barter, or dispose of, any spirituous liquor or wine to an Indian, in the Indian country," or for "any person [to] introduce, or attempt to introduce, any spirituous liquor or wine into the Indian country, except such supplies as shall be necessary for ... the United States [Army]." Id.

In 1854, Congress amended the statute by providing that section 20 of the 1834 Act should not be construed to apply to Indians committing the offenses defined therein in the Indian country. Act of Mar. 27, 1854, ch. 26, Sec. 3, 10 Stat. 269, 270. ³ In 1862, Congress replaced section 20 of the 1834 Act with the Act of Feb. 13, 1862, ch. 24, 12 Stat. 338. This Act did not mention the 1854 Indian exclusion, but instead applied the sanction to "any person." Id. In 1873, a federal court held that the 1862 Act had repealed the exception, and convicted an Indian. United States v. Shaw-Mux, 27 F.Cas. 1049 (D.Or.1873) (No. 16,268). But when the Revised Statutes of 1873 were compiled, they incorporated the 1854 exclusion into the 1862 Act. The liquor prohibition and the Indian exclusion were both codified in R.S. Sec. 2139. Thereafter, Congress again deleted the Indian exception, this time by passing an act to correct errors in the Revised Statutes. The Act stated that R.S. Sec. 2139 "is amended by striking out ... the words 'except an Indian in the Indian country'." Act of Feb. 27, 1877, ch. 69, 19 Stat. 240, 244. Thus, as of 1877, the statute (then R.S. Sec. 2139) prohibited "any person" from selling liquor to Indians in Indian country. The statute was later codified at 25 U.S.C. Sec. 241, then recodified as 18 U.S.C. Sec. 1154, and the phrase "any person" was replaced by the phrase "whoever." In 1953, Congress made section 1154 applicable only to the sale of liquor in Indian country by enacting 18 U.S.C. Sec. 1161.

2. Section 1152

Section 1152, the General Crimes Act, is also a statute of ancient vintage. In 1817, Congress provided for general federal enclave jurisdiction over Indians and non-Indians, except for crimes "committed by one Indian against another," within any ...