U.S. v. Jackson

• Decision Date: 17 July 1979
• Docket Number: No. 78-3493,78-3493
• Citation: 600 F.2d 1283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald A. JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1283

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.

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 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.

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

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

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 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.

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

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 property owners. For example, a private hunting club may keep nonmembers off its game lands or it may issue a permit for a fee. One who comes on such lands without permission may be prosecuted under State law but a non-Indian trespasser on an Indian reservation enjoys immunity. This is by reason of the fact that Indian tribal law is enforceable against Indians only; not against non-Indians.

S.Rep.No.1686, 86th Cong., 2d Sess. 2 (1960).

A letter from Roger Ernst, the Assistant Secretary of the Interior, to Emanuel Celler, Chairman of the House Judiciary Committee, stated:

While non-Indians are subject to State laws when they go on Indian reservations, many of the States do not have criminal trespass laws, and in other States Indians find it impossible to comply with the requirements of State laws designed to control trespass. Particularly is this true in cases of the so-called closed or unallotted Indian reservations in States where the State law requires each 25 square acres to be enclosed or posted. Non-Indians are not subject to the jurisdiction of Indian courts and cannot be tried in Indian courts on trespass charges. The Indians therefore have no protection when the State laws cannot be applied.

H.R.Rep.No.2593, 85th Cong., 2nd Sess. 4, 5 (1958). ⁹

There is nothing in the legislative history to suggest that Congress intended § 1165 to apply to Indians on their own reservations. Nor is there any case law to support this proposition.

LACK OF TRIBAL ENFORCEMENT PROCEDURE

The government points out that at the time of Jackson's arrest the tribe had no This argument confuses jurisdiction with enforcement procedures. The fact that the Tribe had not set up a system to punish certain of its members does not mean that it lacked the power to do so. It merely failed to exercise its jurisdiction. ¹⁰

mechanism to deal with hunting violations by Group C members. The only tribal penalty for violations that existed was the permanent revocation of hunting privileges by the Tribe's Board of Trustees. The government argues that because the Tribe had not taken any steps to deal with violations by Group C members, the federal government should have jurisdiction over them, as it would over non-Indians.

Reversed and remanded for dismissal for want of subject matter jurisdiction.

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* Senior District Judge, Southern District of New York.

1 Article IV provides:

The membership of the Confederated Tribes shall consist, as follows, of:

(a) All persons of Indian blood whose names appear on the official census roll of the Confederated Tribes as of July 1, 1949; provided that corrections may be made in said roll by the General Council within five (5) years from the adoption and approval of this Constitution and By-Laws, subject to the approval of the Secretary of the Interior or his authorized representative.

(b) All children born to enrollees of the Confederated Tribes, who are at least one-fourth (1/4) degree of blood of the Confederated Tribes. Where only one parent of such...