United States v. Booth

• Decision Date: 25 April 1958
• Docket Number: No. 1731-KB.,1731-KB.
• Citation: 161 F. Supp. 269
• Parties: UNITED STATES of America, Plaintiff, v. Martin Reggie BOOTH, Defendant.
• Court: U.S. District Court — District of Alaska

161 F. Supp. 269

UNITED STATES of America, Plaintiff, v. Martin Reggie BOOTH, Defendant.

No. 1731-KB.

District Court Alaska, First Division, Ketchikan.

April 25, 1958.

C. Donald O'Connor, Asst. U. S. Atty., Ketchikan, Alaska, for plaintiff.

Charles W. Hughes, Ketchikan, Alaska, for defendant.

KELLY, District Judge.

This case was set for trial by jury on a two count Information, filed in this court on October 22, 1957. Count One, charging assault and battery, was dismissed on motion of the Government at the suggestion of the complaining witness, Frank Bolton. The defendant appeared in court with his attorney and pleaded guilty on April 21, 1958, to Count Two of the Information charging driving while under the influence of intoxicating liquor.

In view of an earlier motion directed to the jurisdiction of the court and in view of the recent decision of the District Court of the Third Division, District of Alaska, Petition of McCord, 151 F.Supp. 132, the Government, as well as the Court, felt it was necessary to go fully into the question of the Court's jurisdiction in this case, as well as in violations of territorial law committed in the community of Metlakatla, Alaska. Accordingly, the Assistant United States Attorney, C. Donald O'Connor, on behalf of the Government, prepared and filed a most exhaustive brief on the points involved herein and because of the excellence of this brief, the Court adopts the same, with a few additions and appropriate rewording, as his opinion.

Metlakatla is a community made up of Indians who emigrated prior to March 3, 1891, for purposes of religious and economic freedom, from British Columbia to Alaska, their descendants, and Alaska natives who have subsequently joined them. The United States Government set aside the Annette Islands in the Alexander Archipelago in Southeastern Alaska for their use by 48 U.S. C.A. § 358 (March 3, 1891, Chap. 561, Sec. 15, 26 Stat. 1101).

The present community includes descendants of the original settlers, Indians who have been admitted as members of the community after leaving communities of Haida Indians in Alaska, and communities of Thlingit Indians in Alaska, and also native Eskimos and Aleuts who have been admitted as members of the community. Testimony adduced at a hearing in connection with the jurisdiction of the court disclosed that at least one Eskimo member of the community has served on the Metlakatla City Council. The present Mayor of Metlakatla was originally a Thlingit Indian from Sitka, Alaska.

There is no tribal organization in Metlakatla and in fact, the original settlers expressly renounced their tribal affiliations prior to coming to the Annette Islands. The chief executive officer of Metlakatla is the Mayor. The community also has a Council and Magistrate. The community is independent and well developed from a commercial standpoint. In the past it has always been assumed that territorial law applied to Metlakatla.

Testimony of two witnesses was introduced by the Government. Mr. Henry F. Littlefield, Sr., Mayor of Metlakatla, and Mr. A. H. Ziegler, attorney for the city, were both sworn and testified to the facts concerning the migration of the original group of Indians from British Columbia to Annette Island, and to the other facts which are more fully set out hereinafter.

The evidence produced by the Government showed, first, that the Indians of Southeastern Alaska live under entirely different conditions from the Indians on the Tyonek Reservation and therefore the provisions concerning Indian country have no application to them, and

Second, that Metlakatla, by its history, is not a traditional Indian Reservation for the reasons:

1. That it has no tribal organization;

2. It is not made up of aboriginal Indians but largely of the descendants of immigrants who came from Canada during the 19th century; and

3. That Metlakatla is not an Indian Reservation but rather a reservation for Indians who came from British Columbia, their descendants, and Alaska natives who choose to join them. In effect, the word natives includes Eskimos and Aleuts, and in actual fact there are Aleut and Eskimo members of the community who are not of the Indian race.

The Government then points out the following points in its argument:

1. That the Indians of Southeastern Alaska live under entirely different conditions from the Indians on the Tyonek Reservation and the provisions concerning Indian Country have no application to them.

The decision in the McCord case was narrowly restricted in its application to the facts of that case. At page 136, Judge McCarrey stated:

"This decision should not be interpreted by members of the native groups, be they Indian or Eskimo, as a general removal of the territorial penal authority over them, for the reason that this court will take judicial notice that there are few tribal organizations in Alaska that are functioning strictly within Indian country as defined in 18 U.S. C. § 1151 et seq. As I have said, only when the offense fits distinctly within the provisions of the applicable federal law will territorial jurisdiction be ousted. Testimony indicates that the Tyonek area, unlike most areas inhabited by Alaska natives, has been set aside for the use of and is governed by an operational tribal unit. Under these conditions, I can see no alternative but to order the release of the petitioners."

There is no area in Southeastern Alaska that is expressly "set aside for the use of and is governed by an operational tribal unit" and certainly Metlakatla does not come within this limitation. That there are numerous groups of Indians in Alaska who have no tribal-type affiliation is borne out by the terms of the Wheeler-Howard Act which, when it was extended to Alaska by 25 U.S.C.A. § 473a, provided:

"473a. Same; application to Alaska

"Sections 461, 465, 467, 468, 475, 477 and 479 of this title shall after May 1, 1936, apply to the Territory of Alaska; Provided, That groups of Indians in Alaska not recognized prior to May 1, 1936, as bands or tribes, but having a common bond of occupation, or association, or residence within a well-defined neighborhood, community, or rural district, may organize to adopt constitutions and bylaws and to receive charters of incorporation and Federal loans under sections 470, 476, and 477 of this title. May 1, 1936, ch. 254, § 1, 49 Stat. 1250."

Compare this with Section 476, applying to American Indians in general, which reads as follows:

"Any Indian tribe, or tribes, residing on the same reservation, shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws * * *"

It is readily seen that the Wheeler-Howard benefits can safely be limited to tribes in the United States without running the risk of taking benefits from large groups of unorganized Indians.

In Southeastern Alaska there are many groups of non-tribal Indians and therefore special language was necessary to bring the Indians of Southeastern Alaska within the terms of the Wheeler-Howard Act.

That the Indians of Southeastern Alaska are to be treated differently from the Indians of the Tyonek reserve and perhaps other Indians in the Interior of Alaska as well as in the United States is apparent from the decision of Judge Folta in the case of United States v. Libby, McNeil & Libby, D.C. 1952, 107 F.Supp. 697, at page 699:

"* * * in the ensuing 54 years the Indians of Southeastern Alaska, and particularly the Haidas, have not only abandoned their primitive ways and adopted the ways of civilized life but are now fully capable of competing with the whites in every field of endeavor * * * It is a matter of common knowledge that today the Indians of Southeastern Alaska prefer the white man's life despite all its evils and shortcomings * * *

"Whatever may be said in justification of reservations in the unsettled regions of Alaska, they are viewed as indefensible in Southeastern Alaska, and generally condemned by whites and Indians alike as racial segregation and discrimination in the worst form * * *"

It would seem that in view of the development of the Indians in Southeastern Alaska and their participation in every phase of the life and economy of the white man that every presumption should be indulged in to avoid the effects of racial segregation and discrimination and to recognize the non-existence of Indian Country in Southeastern Alaska.

As early as 1886 the District Court in Alaska, Judge Dawson, said (In re Sah Quah, 31 F. 327, 328) specifically referring to the Indians at Juneau:

"Many of them have connected themselves with the mission churches, manifest a great interest in the education of their youth, and have adopted civilized habits of life. Their condition has been gradually changing until the attributes of their original sovereignty have been lost, and they are becoming more and more dependent upon and subject to the laws of the United States, and yet they are not citizens within the full meaning of that term.

"From the organization of the government to the present time, the various Indian tribes of the United States have been treated as free and independent within their respective territories, governed by their tribal laws and customs, in all matters pertaining to their internal affairs, such as contracts and the manner of their enforcement, marriage, descents, and the punishment for crimes committed against each other. They have been excused from all allegiance to the municipal laws of the whites as precedents or otherwise in relation to tribal affairs * * *

"* * * but does the rule * * apply to the Indians of Alaska? I think not, and for various reasons. The United States has at no time recognized any tribal independence or relations among these Indians, has never treated with them in any capacity, but from every act of congress in relation to the people of this territory it is clearly inferable that they have been and now are regarded as dependent

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