U.S. v. Dodge

Decision Date15 July 1976
Docket Number75-1483,75-1398,75-1485 and 75-1498,Nos. 75-1173,s. 75-1173
Citation538 F.2d 770
PartiesUNITED STATES of America, Appellee, v. Reginald Karl DODGE, Jr., Appellant. UNITED STATES of America, Appellee, v. Bernard Bravo ESCAMILLA, Appellant. UNITED STATES of America, Appellee, v. Manuel ALVARADO and Terry Gene Williams, Appellants. UNITED STATES of America, Appellee, v. Allen Fairfax COOPER, Appellant. UNITED STATES of America, Appellee, v. Mark Joseph FLEURY et al., Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

John E. Thorne, San Jose, Cal., and Vine Deloria, Golden, Colo., Larry Leventhal, Minneapolis, Minn., for appellants on the treaty issue.

Duane L. Nelson, Sp. Asst. U. S. Atty., Lincoln, Neb., for appellee, United States; Kenneth L. Fields, Trial Atty., U.S. Dept. of Justice, Washington, D.C., on brief.

Donald H. Berman, Boston, Mass., for appellant, Alvarado, and others; Martin C. Gideonse, Boston, Mass., Joseph Beeler, Miami Beach, Fla., on brief.

Jeremiah S. Gutman, New York City, made argument for Fleury.

Donald L. Doernberg, New York City, for Dodge, and others; Aaron J. Jaffe, New York City, on brief.

Sherman C. Magidson and Carl P. Clavelli, Chicago, Ill., on brief for Escamilla.

Joseph Beeler, Miami Beach, Fla., and Donald L. Doernberg and Jeremiah S. Gutman, New York City, on brief for Fleury, Wesaw and Johns.

Before HEANEY, BRIGHT and WEBSTER, Circuit Judges.

HEANEY, Circuit Judge.

We consolidate these appeals arising out of the "Wounded Knee" incident of 1973 for purposes of argument and opinion.

In No. 75-1485, Allen Fairfax Cooper appeals from a decision of Chief Judge Warren K. Urbom, District of Nebraska, holding that the United States had criminal jurisdiction to try Cooper on the charge of assaulting a United States Postal Inspector on the Pine Ridge Indian Reservation while the Inspector was in the performance of his official duties in violation of 18 U.S.C. §§ 111 and 1114. 1

In No. 75-1498, Mark Joseph Fleury appeals from an unreported decision of Judge Urbom convicting him of second degree burglary in violation of 18 U.S.C. §§ 1152 and 13 and S.D.C.L. § 22-32-3.

In Nos. 75-1173 and 75-1498, Fleury, Colin Robin Wesaw, Larry A. Johns and Reginald Karl Dodge, Jr., appeal from an unreported decision of Judge Urbom convicting them of conspiracy to obstruct, impede or interfere with law enforcement officers, in violation of 18 U.S.C. §§ 231(a)(3) and 371.

In No. 75-1398, Bernard Bravo Escamilla appeals from his conviction by a jury of the lesser included offense of simple assault in violation of 18 U.S.C. §§ 2111 and 924(c)(1).

In No. 75-1483, Manuel M. Alvarado and Terry Gene Williams appeal from their conviction by a jury of burglary in the fourth degree in violation of 18 U.S.C. § 1153 and S.D.C.L. §§ 22-32-11 and 22-32-13.

We consider first the issue raised by all the appellants that the United States has no criminal jurisdiction to try any of the offenses involved in these proceedings. We then consider issues raised by all the appellants except Cooper relating to alleged governmental misconduct. Finally, we turn to the issues raised by the appellants in their individual cases.

I. JURISDICTION OF THE UNITED STATES DISTRICT COURT.

Each of the appellants argues that the United States District Court lacked jurisdiction to try them on the charges for which they were convicted because jurisdiction over the offenses committed on the Pine Ridge Reservation was reserved to the Sioux Nation under the Fort Laramie Treaty with the United States dated April 29, 1868, 15 Stat. 635. The appellants reason that the 1868 Treaty reserved to the Sioux Tribes, who signed the Treaty, exclusive criminal jurisdiction for any crimes committed within their homeland. They recognize that the United States Supreme Court and this Court have decided to the contrary. The appellants contend, however, that they did so without benefit of the extensive evidence presented in this case by Indians and experts on Indian history and that the Indian Chiefs and Headmen who signed the 1868 Treaty understood it to mean that they had the exclusive right to govern themselves in their homeland, including the criminal jurisdiction for any crimes committed therein.

Judge Urbom considered these contentions in his opinion published at United States v. Consolidated Wounded Knee Cases, 389 F.Supp. 235 (D.Neb. & W.D.S.D.1975). He concluded that the broad proposition advanced by the appellants could not be accepted and held that the federal court had jurisdiction over the charges pending against these appellants. 2

In summary, Judge Urbom found that the Treaty of 1868 created criminal jurisdiction over crimes committed by non-Indians upon Sioux Indians 3 and by Sioux Indians upon non-Indians on the Sioux reservations. 4 He found that 23 Stat. 385, now codified as 18 U.S.C. §§ 1153 and 3242 (The Major Crimes Act), created jurisdiction for certain major crimes committed by Indians against Indians on Indian reservations. See Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973); United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); Iron Crow v. Oglala Sioux Tribe of Pine Ridge Res., 231 F.2d 89 (8th Cir. 1956). 5 He also found that the Indian Citizenship Act of 1924, 43 Stat. 253, 8 U.S.C. § 1401(a)(2), created federal jurisdiction to try Indians accused of violating general federal criminal laws. See Ex Parte Green, 123 F.2d 862, 864 (2nd Cir. 1941), cert. denied, 316 U.S. 668, 62 S.Ct. 1035, 86 L.Ed. 1744 (1942).

No useful purpose would be served by attempting to improve on the thoughtful opinion of Judge Urbom. We, therefore, adopt it as our own insofar as it applies to the appellants before us, with the exception of the determination of jurisdiction over Fleury for his conviction of second degree burglary. We specifically hold that:

( 1) Jurisdiction over Cooper, an Indian, for his assault of a federal Postal Inspector in violation of 18 U.S.C. §§ 111 and 1114 is found under the general criminal laws of the United States which are applicable to Indians on Indian reservations. Stone v. United States, 506 F.2d 561, 563 (8th Cir. 1974); Ex Parte Green, supra.

( 2) Jurisdiction over Fleury, a non-Indian, for second degree burglary of a non-Indian home on an Indian reservation in violation of 18 U.S.C. §§ 1152 and 13 and S.D.C.L. § 22-32-3 is premised on the express language of18 U.S.C. § 1152. That premise is incorrect. The federal government has no jurisdiction under § 1152, absent a contrary treaty provision for this crime because the state in which the reservation is situated has exclusive jurisdiction over it. New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); United States v. Ramsey, 271 U.S. 467, 46 S.Ct. 559, 70 L.Ed. 1039 (1926); United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881); United States v. Goings, 527 F.2d 183 (8th Cir. 1975); United States v. Cleveland, 503 F.2d 1067 (9th Cir. 1974).

The Supreme Court in United States v. McBratney, supra, 104 U.S. at 624, 26 L.Ed. at 870, in discussing an indictment of a white man for murdering a white on the Ute Reservation under R.S. §§ 2144, 2145, 2146, the predecessor to 18 U.S.C. § 1152, stated:

The State of Colorado, by its admission into the Union by Congress, upon an equal footing with the original States in all respects whatever, without any such exception as has been made in the Treaty with the Ute Indians and in the Act establishing a territorial government, has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute Reservation, and that reservation is no longer within the sole and exclusive jurisdiction of the United States. The courts of the United States have, therefore, no jurisdiction to punish crimes within that reservation, unless so far as may be necessary to carry out such provisions of the Treaty with the Ute Indians as remain in force. But that Treaty contains no stipulation for the punishment of offenses committed by white men against white men. It follows that the Circuit Court of the United States for the District of Colorado has no jurisdiction of this indictment * * *.

The Court in New York ex rel. Ray v. Martin, supra, 326 U.S. at 497-498, 66 S.Ct. at 308, 90 L.Ed. at 262, stated that:

(McBratney ) has since been followed by this Court and its holding has not been modified by any act of Congress. * * * (Footnote omitted.)

We note that the language of the Treaty between the United States and the Ute Indians of March 2, 1868, 15 Stat. 619, Article VI, concerning criminal jurisdiction of the United States, is identical to the language found in the Treaty between the United States and the Sioux Indians of April 29, 1868, 15 Stat. 635, Article I, paragraphs 2 and 3. It follows that there is no exception in the Sioux Treaty granting the United States jurisdiction over this crime.

Accordingly, we reverse the conviction of Fleury for burglary against a non-Indian on the reservation for lack of jurisdiction.

( 3) Jurisdiction over Fleury, a non-Indian, for his alleged participation in a conspiracy to commit acts to obstruct, impede and interfere with law enforcement officials at Wounded Knee in violation of 18 U.S.C. §§ 231 (a)(3) and 371 is found under the general criminal laws of the United States that apply whenever citizens are within the territorial jurisdiction of the United States, including Indian reservations. Jurisdiction over Dodge and Wesaw Indians, for the same alleged activities is found under the general criminal laws of the United States which are applicable to Indians on Indian reservations. Stone v. United States, supra, and cases cited therein, and Ex Parte Green, supra. 6

( 4) Jurisdiction over Escamilla, a non-Indian, for his assault...

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