U.S. v. White

• Citation: 508 F.2d 453
• Decision Date: 11 February 1975
• Docket Number: No. 74-1283,74-1283
• Parties: UNITED STATES of America, Appellant, v. Jackie WHITE, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 453

508 F.2d 453

UNITED STATES of America, Appellant, v. Jackie WHITE, Appellee.

No. 74-1283.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 11, 1974.

Decided Dec. 9, 1974, Rehearing and Rehearing En Banc Denied

Feb. 11, 1975.

Donald F. Parr, Asst. U.S. Atty., Minneapolis, Minn., for appellant.

Rodney J. Edwards, Duluth, Minn., for appellee.

Before LAY, ROSS and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

Jackie White, a member of the Red Lake Band of Chippewa Indians and resident of the Red Lake Reservation, was observed shooting at a bald eagle within the confines of the reservation. He was thereupon charged with the unlawful taking of a bald eagle in violation of 16 U.S.C. 668(a). White moved for dismissal of the Information on the grounds that 16 U.S.C. 668 was inapplicable to tribal Indians on Indian reservations exercising traditionally guaranteed tribal hunting rights. Based upon the congressional silence which underlies the statute's enactment and upon United States v. Cutler, 37 F.Supp. 724 (D.Idaho 1941), the trial court granted the motion to dismiss. Under the provisions of 18 U.S.C. 3731, the government appeals the dismissal. We affirm.

In the district court the government opposed the dismissal of the Information on the basis that 18 U.S.C. 1152 established the requirement that an Act of Congress is applicable to Indians unless expressly provided otherwise. Before this Court, the government has taken the position that 16 U.S.C. 668 expressly deals with Indians and thus is plainly and unmistakenly applicable to Indians on their native reservations in the exercise of their right to hunt.

18 U.S.C. 1152 provides:

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

A review of the history of these provisions reveals that the statute is limited to the application of federal enclave law to Indian country. In Ex parte Gonshay-ee, 130 U.S. 343, 352, 9 S.Ct. 542, 545, 32 L.Ed. 973 (1889), the Supreme Court noted:

'Within the exclusive jurisdiction of the United States,' (as used in the precursor statute to 1152) is well understood as applying to the crimes which are committed within the premises, grounds, forts, arsenals, navyyards, and other places within the boundaries of a State . . . over which the Federal government has . . . exclusive jurisdiction.

Again, In re Wilson, 140 U.S. 575, 578, 11 S.Ct. 870, 871, 35 L.Ed. 513 (1891), the Court said:

The words 'sole and exclusive,' in (the precursor statute to 1152) . . . are only used in the description of the laws which are extended to (Indian country).

Those cases impart that 18 U.S.C. 1152 is not a predicate for general federal criminal jurisdiction in Indian country. Rather the scope of section 1152 is limited to the applicability or nonapplicability of federal enclave laws, those laws passed by the federal government in the exercise of its police powers over federal property and now defined in the United States Criminal Code in terms of 'special maritime and territorial jurisdiction of the United States,' 18 U.S.C. 7. See Stone v. United States, 506 F.2d 561 (8th Cir., 1974); Walks On Top v. United States, 372 F.2d 422, 425 (9th Cir.), cert. denied, 389 U.S. 827, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967). 18 U.S.C. 1152, then, is not germane to this controversy.

The government's second argument is equally nonpersuasive. In general, there is no question that 'Congress has full power to legislate concerning the tribal property of the Indians . . .', Tiger v. Western Investment Co., 221 U.S. 286, 311-312, 31 S.Ct. 578, 585, 55 L.Ed. 738 (1911). See also FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960). However, areas traditionally ¹ left to tribal self-government, those most often the subject of treaties, have enjoyed an exception from the general rule that congressional enactments, in terms applying to all persons, includes Indians and their property interests. ² This tradition is embraced in the Menominee doctrine which, simply stated, is: 'While the power to abrogate (treaty recognized hunting) rights exists . . . 'the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress." Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968). This doctrine governs the disposition of this case and is based upon well-established rules of construction. 'Plenary authority over the tribal relations of the Indians had been exercised by Congress from the beginning . . .. Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf.' Lone Wolf v. Hitchcock, 187 U.S. 553, 565-566, 23 S.Ct. 216, 221, 47 L.Ed. 299 (1903). Treaty rights could be abrogated at the will of Congress. Choate v. Trapp, 224 U.S. 665, 671, 32 S.Ct. 565, 56 L.Ed. 941 (1912). An Act of Congress may supersede a treaty. Thomas v. Gay,169 U.S. 264, 271, 18 S.Ct. 340, 42 L.Ed. 740 (1898); The Cherokee Tobacco,78 U.S. 616, 621, 11 Wall. 616, 20 L.Ed. 227 (1870). Generally, in the case of a conflict between an Act of Congress and a treaty, the one last in date must prevail. Hijo v. United States, 194 U.S. 315, 324, 24 S.Ct. 727, 48 L.Ed. 994 (1904). However, a treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed. Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 77 L.Ed. 641 (1933). Thus the later Act should be harmonized with the letter and spirit of the treaty so far as that reasonably can be done, since the intention to alter, and, pro tanto, abrogate, the treaty is not to be lightly attributed to Congress. United States v. Payne, 264 U.S. 446, 448, 44 S.Ct. 352, 68 L.Ed. 782 (1924). The policy was best expressed in Lone Wolf v. Hitchcock, supra, 187 U.S. at 566, 23 S.Ct. at 221, where the Court said:

The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only wnen circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might to availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.

Upon a review of the tribal history of the Red Lake Band of Chippewa Indians, ³ it is clear that a tract of land was 'reserved' in a treaty for their occupation, Chippewa Indians v. United States, 301 U.S. 358, 373, 57 S.Ct. 826, 81 L.Ed. 1156 (1937); that the occupied lands were thereafter regarded by the United States as constituting the Red Lake Reservation, id., United States v. Holt State Bank, 270 U.S. 49, 58, 46 S.Ct. 197, 70 L.Ed. 465 (1926), Minnesota v. Hitchcock, 185 U.S. 373, 389-390, 22 S.Ct. 650, 46 L.Ed. 954 (1902); ⁴ and that the Red Lake bands were recognized as the sole owners by right of original Indian occupancy. ⁵ That manner of occupation ('as Indian lands') in Menominee Tribe of Indians v. United States, supra, 391 U.S. at 406, 88 S.Ct. 1705, was sufficiently definite to create a treaty right to hunt and fish. With specific reference to the Red Lake Band, the leading source in this area cites:

'An examination of the various treaties between the United States and the Chipppewa Indians discloses that while the right in the Indians to hunt and fish on ceded lands was reserved in some of the earlier treaties (see Article 5, Treaty of July 20, 1837, 7 Stat. 536; Article 2, Treaty of October 4, 1842, 7 Stat. 591; and Article 11, Treaty of September 30, 1854, 10 Stat. 1109), no reservation of the right to hunt and fish was made with respect to the unceded lands of the Red Lake Reservation. But such a reservation was not necessary to preserve the right on the lands reserved or retained in Indian ownership. The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right, which was 'not much less necessary to the existence of the Indians than the atmosphere they breathed' remained in them unless granted away.' United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089.

Cohen, Federal Indian Law, 496-497 (2d ed. 1958) (citing Op. Acting Sol. M 28107, June 30, 1936). Based upon Menominee, Chippewa, Hitchcock, and Winans, we reach the inescapable conclusion that the Red Lake Band of Chippewa Indians enjoy a right to hunt on the Red Lake Reservation and that this right has been implicitly recognized in treaties negotiated by that band and the United States. To affect those rights, then, by 16 U.S.C. 668, it was incumbent upon Congress to expressly abrogate or modify the spirit of the relationship between the United States and Red Lake Chippewa Indians on their native reservation. We do not believe it has done so.

16 U.S.C.A. 668(a) provides:

Whoever, within the United States or any place subject to the jurisdiction thereof, without being...