U.S. v. John

• Decision Date: 11 October 1977
• Docket Number: No. 76-1518,76-1518
• Citation: 560 F.2d 1202
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Smith JOHN and Harry Smith John, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1202

560 F.2d 1202

UNITED STATES of America, Plaintiff-Appellee, v. Smith JOHN and Harry Smith John, Defendants-Appellants.

No. 76-1518.

United States Court of Appeals Fifth Circuit.

Oct. 11, 1977.

Edwin R. Smith, Philadelphia, Miss. (Court-appointed), for defendants-appellants.

Robert E. Hauberg, U. S. Atty., Daniel E. Lynn, Asst. U. S. Atty., Jackson, Miss., Larry G. Gutterridge, Peter R. Taft, Asst. Atty. Gen., Edmund B. Clark, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, GODBOLD and HILL, Circuit Judges.

COLEMAN, Circuit Judge.

Smith John and his son, Harry Smith John, are Mississippi residents, of Choctaw Indian blood. In the District Court for the Southern District of Mississippi they were indicted for the commission of a felonious assault, with intent to kill, upon one Artis Jenkins, in violation of 18 U.S.C. §§ 1153 and 113(a). The indictment charged that the defendants were Indians, that the offense was committed in the Northeast Quarter of Section 35, Township 11 North, Range 7 East, Leake County, Mississippi, on the Choctaw Indian Reservation, on land within the Indian country and under the jurisdiction of the United States.

At trial, the defendants requested an instruction on simple assault, to which there was no objection. They were convicted of that offense and were sentenced accordingly. This appeal followed.

Before the appeal could be heard these appellants served their 90 day jail sentences and discharged their fines. This suggests that there no longer exists any live case or controversy between these appellants and the United States, that this case is moot and should not be decided here. Were it not for the decision of the Supreme Court in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), we would be inclined to so hold. Any possible collateral consequence of these convictions could occur only if the appellants should hereafter be called as witnesses in some criminal prosecution in a state court. ¹ Under Mississippi law a witness may be impeached by proof of misdemeanor convictions Lewis v. State, 1904, 85 Miss. 35, 37 So. 497; Breland v. State, 1954, 221 Miss. 371, 73 So.2d 267. However, the witness may be asked only as to convictions; not the details of the crime. Allison v. State, Miss.1973, 274 So.2d 678; Murray v. State, Miss.1972, 266 So.2d 139; Mangrum v. State, Miss.1970, 232 So.2d 703. "Simple assault" includes incidents which amount to nothing more than fisticuffs and if the jury is not allowed to hear the details a conviction on that score could not have much impact on credibility; nevertheless, under Sibron we do not feel free to dismiss for mootness.

After their federal convictions, Smith John and Harry Smith John were indicted in the Circuit Court of Leake County, Mississippi, for an aggravated assault on Jenkins, were convicted, and sentenced to serve two years in the state penitentiary, with credit for time spent in jail awaiting trial.

On appeal the State Supreme Court held that the United States District Court did not have jurisdiction to try the defendants under the Major Crimes Act, 18 U.S.C. § 1153, and the State Court convictions were affirmed, John v. State of Mississippi (Miss.1977), 347 So.2d 959. See also, Tubby v. State, Miss.1976, 327 So.2d 272.

Our Court deferred decision on the instant appeal pending an application of the Solicitor General of the United States for a writ of certiorari in United States v. State Tax Commission of the State of Mississippi, 5 Cir. 1974, 505 F.2d 633, reh. denied, 535 F.2d 300 (1976), reh. en banc denied, 541 F.2d 469 (1976). In that case, which was not a criminal prosecution under 18 U.S.C. § 1153, we held that the jurisdiction of the State of Mississippi over its citizens of Choctaw Indian blood stands unimpaired. On April 5, 1977, we were notified that the Acting Solicitor General had decided not to seek certiorari. He felt that the Court had incorrectly concluded that the Mississippi Choctaws are not a tribe but that this was unnecessary to the Court's resolution of the State Tax Commission controversy.

I Jurisdiction

The threshold issue in this appeal is one of jurisdiction: did the assault on Jenkins take place "in Indian Country"? ²

18 U.S.C. § 1151, a product of the general revision of 1948, says that "Indian Country" shall include "all lands within the limits of any Indian Reservation under the jurisdiction of the United States government". The requirement is two-fold. The land must be within an Indian Reservation and the Indian Reservation must be under the jurisdiction of the United States government.

The quarter section of land, one half mile square, on which Jenkins was assaulted cannot be an Indian Reservation under the jurisdiction of the United States, and thus in "Indian Country", unless this was the kind of reservation to which Congress intended that § 1151 should apply and only then if it was under the jurisdiction of the United States government by virtue of a Proclamation of the Acting Secretary of the Interior, dated December 4, 1944, purporting to act under the authority of § 7 of the Indian Reorganization Act of June 18, 1934, 48 Stat. 984.

We hold that the lands occupied in Mississippi by its citizens of Choctaw Indian blood are not in Indian Country; therefore 18 U.S.C. § 1153 ³ did not confer subject matter jurisdiction on the District Court.

The convictions are reversed and the cause remanded, with directions to set aside the convictions and dismiss the indictment.

II

By the Enactment of 18 U.S.C., § 1151, Congress Specifically Sought to Avoid the Confusion of Checkerboard Jurisdiction, Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962).

On December 4, 1944, the Assistant Secretary of the Interior signed a proclamation (Federal Register, December 23, 1944, page 14,907) declaring that the Indian trust lands composed of many comparatively small, non-contiguous tracts in the Mississippi Counties of Attala, Jones, Leake, Neshoba, Newton, and Scott are "an Indian reservation for the benefit of those members of the Mississippi band of Choctaw Indians, of one-half or more Indian blood, resident in Mississippi, and enrolled at the Choctaw Indian Agency as aforesaid".

The 1944 Proclamation of the Assistant Secretary will be annexed to this opinion. It will be noted that the land descriptions there set forth are filled with indefinite descriptions, such as "less 10.4 acres off the northeast part thereof", "5 acres off the east end thereof", "less 14 acres on the East side", "less 10 acres in the southwest corner", and these indefinite descriptions bristle throughout the entire description of the "reservation" which the Assistant Secretary was attempting to establish. Moreover, a comparison of sections, townships, and ranges clearly indicate that in numerous instances, even within the same county, there were not contiguous parcels of land and, in the entirety, they were scattered over several counties.

The situation is pointed up by the fact that the indictment in this case had to specify that the alleged offense occurred on a particular quarter section of land in Leake County, the Northeast 1/4 of Section 35, Township 11 North, Range 7 East, an area 880 yards square.

We have not attempted to map, county by county, the lands described in the Secretary's proclamation, section by section, township by township, and range by range. We do have before us the government's Supplemental Exhibit Number 3 filed in the case of United States v. State Tax Commission, supra, purporting to be a map of Indian reservation land in the Counties of Leake, Newton, Neshoba, and Kemper.

The map shows the "Red Water" and "Standing Pine" Indian Reservations in Leake County; the "Connehatta" Reservation in Newton County; the "Pearl River" and "Tucker" Reservations in Neshoba County; and the "Bogue Chitto" Indian Reservation in Kemper County.

The Red Water Reservation is composed of seven non-contiguous tracts; the Standing Pine Reservation is composed of five non-contiguous tracts; the Connehatta Reservation is composed of what appears to be nine non-contiguous tracts; the Pearl River Reservation seems to be composed of several non- contiguous tracts, the actual boundaries of which we cannot discern from the map; and the Bogue Chitto Indian Reservation is composed of at least four non-contiguous tracts. These five Reservations are dispersed over an area encompassing twelve hundred square miles in four counties.

In 1961, in an opinion by Mr. Justice Black, the Supreme Court held that by the enactment of 18 U.S.C., § 1151, Congress sought to avoid the confusion which would be caused by an impractical pattern of checkerboard jurisdiction which would require law enforcement officers in the area to search tract books to determine whether criminal jurisdiction over a particular offense did or did not exist, Seymour v. Superintendent, 1961, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346.

An examination of the land descriptions set forth in the Proclamation of the Assistant Secretary (annexed hereto) reveals that he did, in fact, proclaim an impractical checkerboard, exactly the kind which Congress sought to avoid when it enacted the revised 1948 statute defining "Indian Country".

This checkerboard was in existence, but it was not Indian Country, when Congress passed the 1948 revised statute. Since this widely dispersed disarray of small subdivisions of land, scattered in clusters throughout several Mississippi counties, was already in existence in 1948 and Congress sought to avoid just such a situation when it enacted 18 U.S.C., § 1151, defining Indian Country, it is apparent that by the enactment of the statute Congress could not have intended it to apply to the Choctaw Indian "reservation" in Mississippi. Congress could not have had any idea...