U.S. v. Jackson, 78-3493

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WRIGHT and TANG, Circuit Judges, and PALMIERI; EUGENE A. WRIGHT
• Citation: 600 F.2d 1283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald A. JACKSON, Defendant-Appellant.
• Docket Number: No. 78-3493,78-3493
• Decision Date: 17 July 1979

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600 F.2d 1283 UNITED STATES of America, Plaintiff-Appellee,
v.
Donald A. JACKSON, Defendant-Appellant. No. 78-3493. United States Court of Appeals,
Ninth Circuit. July 17, 1979.

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Peter H. Wells, Corey, Byler & Rew, Pendleton, Or., on brief; Steven H. Corey, Pendleton, Or., for defendant-appellant.

William W. Youngman, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT and TANG, Circuit Judges, and PALMIERI, District Judge. ^*

EUGENE A. WRIGHT, Circuit Judge:

We must decide whether an enrolled member of the Confederated Tribes of the Umatilla Reservation (tribe), who hunted on the reservation in violation of a tribal ordinance, may be prosecuted in federal court under 18 U.S.C. § 1165 which provides:

Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any . . . Indian tribe, . . . for the purpose of hunting, . . . shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited.

Jackson appeals his conviction under that section.

Article IV of the tribe's constitution divides tribal members into three categories. ¹ Because Jackson is of less than one-fourth tribal blood, he was enrolled as a member under Group C, the members of which may not participate in any rights or claims, including hunting, ² arising out of the treaties to which the tribe is a party.

Jackson does not deny that he was hunting on the reservation without the tribe's

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permission. Instead, he contends that Article IV violates his right to equal protection as set out in the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8). ³

We requested supplemental briefs on the question whether 18 U.S.C. § 1165 gives federal courts jurisdiction over an offense committed by one Indian against the property of another Indian on a reservation. Because we conclude that Congress did not intend the statute to extend to such offenses, we need not reach Jackson's equal protection claim.

INDIAN SOVEREIGNTY

Indian tribes have inherent sovereignty over internal affairs, but it "is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers." United States v. Wheeler,435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). Accord, United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). ⁴

The power to enact tribal laws and punish offenders is part of the tribes' inherent sovereignty. Wheeler, 435 U.S. at 328, 98 S.Ct. 1079. The Supreme Court early held that, in the absence of an explicit Congressional directive, Indian tribes have exclusive criminal jurisdiction over offenses committed by one Indian against another Indian, even when the crime is murder. Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). ⁵

In response to the decision in Crow Dog, Congress passed the Major Crimes Act, as amended 18 U.S.C. § 1153. See Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). Section 1153 lists those crimes Congress considered serious enough to warrant exclusive federal jurisdiction. Hunting on the reservation without the tribe's permission is not among those listed. ⁶

Section 1153 should be read in conjunction with § 1152, which extends "the general laws of the United States as to the punishment of offenses . . . to the

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Indian country" with certain exceptions. ⁷ The exception relevant here is for "offenses committed by one Indian against the person or property of another Indian." See Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965). Thus, the general rule is that "except for the offenses enumerated in (section 1153), all crimes committed by enrolled Indians against other Indians within Indian country are subject to the jurisdiction of tribal courts." United States v. Antelope, 430 U.S. 641, 643 n. 2, 97 S.Ct. 1395, 1397, 51 L.Ed.2d 701 (1977). ⁸

INTERPRETATION OF § 1165

In the absence of 18 U.S.C. § 1165, Jackson would be subject exclusively to tribal jurisdiction for hunting on the reservation without the tribe's permission. The issue we face is whether Congress intended § 1165 to create an exception, beyond those enumerated in § 1153, to the exclusive jurisdiction of an Indian tribe over its members who commit crimes on the reservation.

The language of § 1165, on its face, appears to apply to Indians and non- Indians alike. The government argues that the general wording of the statute reflects an intent to encompass Any hunting violation on the reservation. In support, it cites the predecessor of § 1165, which provided:

That if any person, Other than an Indian, shall, within the limits of any tribe with whom the United States shall have existing treaties, hunt, or trap, or take and destroy, any peltries or game, except for subsistence in the Indian country, such person shall forfeit the sum of five hundred dollars, and forfeit all the traps, guns, and ammunition in his possession,

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used or procured to be used for that purpose, and peltries so taken.

Ch. 161, Section 8, 4 Stat. 730 (1834), subsequently codified as 25 U.S.C. § 216 (repealed 1960) (emphasis added). The government maintains the deletion of the words "other than an Indian" shows that Congress intended § 1165 to apply to Indians on their own reservations.

We disagree. Other changes in the predecessor statute indicate that, when it enacted § 1165, Congress was concerned only with non-Indian hunters and fishermen who were not subject to tribal authority. The section now reads: "Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any . . . Indian tribe . . . ." Thus, § 1165 does not apply to a member of the tribe who has a right to be on the land. As we said in United States v. Sanford, 547 F.2d 1085 (9th Cir. 1976):

It is significant to note that section 1165 does not directly prohibit hunting and fishing but makes the act of going upon the Indian reservation a violation if done for the purpose of hunting or fishing . . . (S)ection 1165 must be considered to be a statute providing a penalty for trespass to an Indian reservation and not an attempt by Congress to enter the field of fish and game regulation.

Id., at 1089, Quoting State v. Danielson, 149 Mont. 438, 441, 427 P.2d 689, 691 (1967).

The legislative history of § 1165 confirms this interpretation. The Senate Judiciary Committee report explained:

The problem confronting Indian tribes with sizeable reservations is that the United States provides no protection against trespassers comparable to the protection it gives to Federal property as exemplified by title 18, United States Code, section 1863. Indian property owners should have the same protection as other...