United States v. Brown, Crim. No. 71-0-116.

• Citation: 334 F. Supp. 536
• Decision Date: 29 November 1971
• Docket Number: Crim. No. 71-0-116.
• Parties: UNITED STATES of America, Plaintiff, v. Beverly Marie BROWN, nee Wolfe, Defendant.
• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska

334 F. Supp. 536

UNITED STATES of America, Plaintiff, v. Beverly Marie BROWN, nee Wolfe, Defendant.

Crim. No. 71-0-116.

United States District Court, D. Nebraska.

November 29, 1971.

William K. Schaphorst, Asst. U. S. Atty., Nebraska, for plaintiff.

George A. Penry, Omaha, Neb., for defendant.

MEMORANDUM

DENNEY, District Judge.

This matter comes before the Court on the motion of defendant for an order dismissing this criminal action against her on the ground, among others, that the federal government is without jurisdiction over her for the offenses charged. This memorandum considers only the jurisdictional issue raised by defendant's motion and reserves ruling upon the remainder of her motion until additional hearing can be had upon defendant's assertions therein.

Defendant is an American Indian, a member of the Omaha Indian Tribe, and the crimes she is charged to have committed allegedly occurred upon the Omaha Indian Reservation, located primarily in Thurston County, Nebraska.

The charges against defendant arise out of a stabbing incident wherein her sister, Clover Wolfe, was critically injured. These alleged crimes constitute felonies.

Initially, the Court wishes to express appreciation for the diligence of counsel in thoroughly briefing the many legal questions raised in the issue of federal jurisdiction.

The question of the existence of federal jurisdiction over the Omaha Indian Reservation primarily within Thurston County, Nebraska, rests upon the validity and finality of retrocession of jurisdiction by the State of Nebraska to the United States Government after approximately sixteen years of nearly exclusive state control.

In 1953, the Congress transferred all jurisdiction, civil¹ and criminal², over the Indian country within the State of Nebraska to the state. At that time, similar withdrawal of federal jurisdiction over the Indian country within other states was also accomplished. The action of Congress in placing jurisdiction over Indians in the hands of the states had as its purpose the elimination of the legal impediments standing in the way of the Indian becoming a first class citizen³. Congress apparently assumed that subjecting the Indian to equality of the responsibilities of state law would make him equal in all respects to other citizens of the state.

In 1968, the Congress authorized the United States to take back, via retrocession from Nebraska "all or any measure" of the jurisdiction transferred to the state in 1953⁴. On November 12, 1968, President Lyndon B. Johnson, by executive order⁵, pursuant to statutory authority⁶, designated the Secretary of Interior to exercise the authority granted by the retrocession statute.

In 1969, the Eightieth Session of the Nebraska Legislature passed Legislative Resolution 37, which ceded all criminal jurisdiction, save for traffic offenses, over the two Indian reservations primarily in Thurston County, Nebraska, to the United States⁷. The Secretary of Interior took jurisdiction over the Omaha Indian Reservation but did not take jurisdiction over the Winnebago Indian Reservation. This assumption of criminal jurisdiction over the Omaha Indians only was published in the Federal Register⁸.

In 1971, the Eighty-Second Legislature of Nebraska passed Legislative Resolution 16, wherein it attempted to cancel its cession of jurisdiction because the United States had not taken back all of the jurisdiction set forth in the resolution ceding jurisdiction over both tribal reservations⁹.

Two issues arise in relation to the validity of retrocession of jurisdiction to the federal government. First, Resolution 37 was not presented to the governor for his signature and therefore might be invalid under state law. Second, the question has been raised as to the authority of the Secretary of Interior to take back jurisdiction over only one of the reservations retroceded by the state, while rejecting the assumption of jurisdiction over the other.

THE EFFECT OF THE INVALIDITY OF RESOLUTION 37 UPON FEDERAL JURISDICTION

Article IV, Section 15, of the Constitution of the State of Nebraska¹⁰ would seem to require that a resolution such as Resolution 37 be presented to the Governor for his signature. Resolution 37 was not presented to the Governor of Nebraska, although it appears valid in all other respects.

In the advisory opinion of In re Contest Proceeding¹¹, the Nebraska Supreme Court considered the validity of a joint resolution of the Nebraska House and Senate calling a joint meeting of the houses to conduct an election contest as to the offices of the governor and lieutenant governor, among other state officers. The Court held that such a resolution was required by substantially the same constitutional provision as now in effect, to be presented to the governor. The Court considered the resolution invalid.

The general tenor of other cases dealing with the above constitutional provision is that the governor constitutes a part of the legislative process in relation to the presentation of legislative matters to him.

The Court believes, under state law, the resolution would be held invalid. It is possible, however, considering the effect such a ruling would have upon the resolutions of recent decades, many of which have not been so presented, that the Nebraska Court would not so interpret the language of Article IV, section 15.

Assuming the invalidity of Resolution 37 under state law, the effect of such invalidity upon the retrocession of jurisdiction over the Indian country in Thurston County now becomes a determinative issue.

The effect of the invalidity of Resolution 37 could be considered either under state or federal law. The question of which law should be used to determine its effect is peculiarly difficult, since this precise issue has not before arisen in the courts of this land. Perhaps analogy to the somewhat similar area of interstate compacts is appropriate. It should initially be noted that compacts law deals essentially with the specialized law of contracts between sovereigns, which is not particularly analogous to the situation presented here. Compacts involve negotiations and the final negotiated agreement as to territorial activities, generally of a continuing nature. What is analogous as between compacts and the problem here presented is the effect of the internal action of a state externally, and its impact upon the decisions and activities of other governments.

In the case of Dyer v. Sims¹², the United States Supreme Court was faced with the problem of a West Virginia Supreme Court decision holding that the state legislature had exceeded its constitutional authority in entering into an interstate compact to control pollution upon the Ohio River system.

It was asserted in that case that the decision of the state court was controlling upon the issue of the interpretation of the state constitution and, thus, the validity of West Virginia's participation in and entry into the compact.

The Supreme Court of the United States held that the over-all validity of the compact was to be determined by federal law. The Court went on to interpret the state constitution under federal law. In the present action, interpretation of the state constitution is not necessary, but the principle of applying federal law to the questions there raised has analogous application here.

Much closer to the point now at issue is the situation in Leser v. Garnett¹³. The United States Supreme Court applied federal law to a determination of the effect of the invalidity under state law, of the ratification by the state legislatures of Tennessee and West Virginia of the Nineteenth Amendment to the United States Constitution.

But Leser has much broader application to the outcome of the present action than merely to exist as authority for the proposition that federal law should be applied to determine the effect of the invalidity of Resolution 37 upon the validity of retrocession. The Court there noted that where the Secretary of State of the United States had received "official notice * * * duly authenticated * * *" that the two states involved had ratified the proposed amendment, it "was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts."¹⁴

In respect to Resolution 37, the Secretary of Interior received duly authenticated copies thereof and, in reliance thereon, acted to cause assumption of jurisdiction by the federal government over the Omaha Indian Reservation.¹⁵ This Court can see no logical distinction between the two situations.

However, even without the authority of Leser, this Court would still be compelled to hold that the effect of noncompliance with Article IV, Section 15, of the Nebraska Constitution has no effect upon the assumption of federal jurisdiction by the Secretary of Interior.

The federal government exercises plenary power over the affairs of the Indian¹⁶. Very similar to the traditional "commerce power" although broader in scope, this power of the federal government, when exercised, preempts state control over the field¹⁷.

Questions of momentous impact upon the exercise of federal jurisdiction are at issue here. The Secretary of Interior was presented with what purported to be a valid state "retrocession" of jurisdiction over the Indian country in Thurston County, Nebraska. The question arises as to whether the Secretary must look into the prima facie valid act of a state to determine its validity under state law before he may rely upon it in precipitating federal action. Obviously, such a rule would lead to endless delay and the hazard, in every federal response to state action, that such reliance might, due to the improper conduct of the state officials, be deemed a nullity at a future date. Somewhere along the line, if only for the purpose of finality, such a result cannot be found. Here, the federal government, relying upon what purported to be valid state action, has expended large sums of...