United States v. EK

• Decision Date: 24 May 1979
• Docket Number: No. CR 79-47.,CR 79-47.
• Citation: 471 F. Supp. 924
• Parties: UNITED STATES of America, Plaintiff, v. E. K., Defendant.
• Court: U.S. District Court — District of Oregon

471 F. Supp. 924

UNITED STATES of America, Plaintiff, v. E. K.^*, Defendant.

No. CR 79-47.

United States District Court, D. Oregon.

May 24, 1979.

COPYRIGHT MATERIAL OMITTED

William Youngman, Asst. U. S. Atty., Portland, Or., for plaintiff.

David Slader, Portland, Or., for defendant.

OPINION

JAMES M. BURNS, District Judge:

This case presents the bleakest of dramas. The events are unrelievedly sad for society and unutterably tragic for the young man who has been thrust on center stage as the main actor. The misshapen young life of this accused juvenile; the wasted lives of his natural and step-parents whose neglect has contributed to and exacerbated his plight; the misery and abject hopelessness which pervade the conditions with which he has been surrounded; the fear and harm which he has caused his victims; the complex governmental, social and cultural conditions which have combined to furnish, at best, only a dim and distant hope for the future of this juvenile; the escalating nature of the harm which he can, and perhaps will do—all these factors, and others equally distressing, are the raw material out of which this drama emerges.

But this is no mere stage drama. It is an all too real criminal episode in which the juvenile committed or was accused of committing serious—even dangerous—acts, which if all were proved against an adult would be punishable by 30 years imprisonment. This is nearly twice the young man's present age.

E.K. is a Warm Springs Indian. For most of his life, he has lived on the Warm Springs Reservation. He is 17 years old, his birth date being March 20, 1962.

On March 9, 1979, the government filed an information charging E.K. with three acts of juvenile delinquency, including burglary (Count I), theft (Count II), and assault with a deadly weapon (Count III). The maximum sentences available for each, if committed by an adult, would be 20 years on Count I and 5 years for each of Counts II and III. Accordingly, the government was authorized to move to transfer him to adult status.¹ 18 U.S.C. § 5032. The government filed a motion to transfer the proceeding to adult court after filing an appropriate certification that the State of Oregon lacks jurisdiction because E.K. is an Indian, the alleged crime occurred on the Warm Springs Indian Reservation, and that the Warm Springs Tribal Court does not have available programs or services adequate for the needs of the defendant. Id. A transfer hearing was held March 29, 1979. I took the matter under advisement.

On April 4, 1979, I delivered a brief oral opinion denying the motion to transfer. The substance of the record made there was that I could not conclude that a transfer would be in "the interest of justice" (§ 5032) in this case because E.K. demonstrated some potential for rehabilitation, under special circumstances, during the period of his minority. I stated that I had considered all statutory criteria. I made oral findings as to each sufficient to deny the motion to transfer. I stated I would later reduce those findings to written form. I then postponed the dispositional hearing on the matter until April 9. As a part of this ruling, I made an oral finding that excludable delay had occurred.² Any issue of excludable delay became moot on April 6. On that date E.K. came before the court and, pursuant to a "plea bargain," admitted Count I (burglary) as charged in the information, and the government agreed to dismiss the other two counts. Thereafter, at a separate dispositional hearing, § 5037, I committed E.K. to the custody of the Attorney General until his 21st birthday.

I. JURISDICTION OF THIS COURT:

The contention was raised that this court lacks jurisdiction to hear this matter because the State of Oregon, notwithstanding the certification to the contrary filed with this court, does in fact have jurisdiction over the person of the juvenile. Counsel for the juvenile relies upon ORS 419.476 which provides that:

. . . The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and: . . . Who has committed an act which is a violation, of which if done by an adult would constitute a violation, of a law . . . of the United States . . .. (Emphasis added.)

The "juvenile court" referred to is of course a court of general and equitable powers with jurisdiction over certain subject matter relating to juveniles and domestic affairs, all of a civil nature. ORS 419.472-419.476.

This argument fails. The State of Oregon does not have jurisdiction over the person of E.K. for the purposes of a civil proceeding such as an adjudication of delinquency, and it does not have jurisdiction over the substantive criminal offenses which comprise the alleged acts of juvenile delinquency.

A. OREGON HAS NO JURISDICTION OVER A CIVIL PROCEEDING ARISING ON THE WARM SPRINGS RESERVATION TO WHICH A WARM SPRINGS INDIAN IS A PARTY

Generally speaking, an Indian tribe possesses all the powers of a sovereign state, including the powers of internal governance over relationships between tribal members. While these powers are of course limited by treaties and subsequent acts of Congress, unless so qualified, jurisdiction over the conduct between and among Indians within Indian Country remains vested in the tribes and their duly constituted tribal governments. See, F. Cohen, Handbook of Federal Indian Law 123 (1945).

While Congress has withdrawn federal jurisdiction over criminal offenses and granted both criminal and civil jurisdiction in Indian Country to certain designated states, 18 U.S.C. § 1162(a) and 28 U.S.C. § 1360(a), it has specifically exempted from any grant of jurisdiction that geographical area in the State of Oregon lying within the Warm Springs Reservation.³ Thus the juvenile court of the State of Oregon does not have jurisdiction over any juvenile proceeding to which a Warm Springs Indian, domiciled upon the reservation, is a party. In fact, the state has in the past sought to exercise juvenile court jurisdiction only over Indian infants (not members of a tribe within territory exempted from state jurisdiction by 28 U.S.C. § 1360(a)) where such children had not lived on a reservation and were not claimed to have ever been domiciled upon a reservation. State ex rel. Juvenile Dept. v. Greybull, 23 Or.App. 674, 677-78, 543 P.2d 1079, (1975).

In short, I conclude that where the State of Oregon has not been granted extraterritorial jurisdiction over the person of a Warm Springs Indian for any civil or criminal matter arising upon the Warm Springs Reservation, extraterritorial jurisdiction does not exist in the juvenile court of the circuit court of the state merely because the juvenile is such a Warm Springs Indian who is under 18 and has committed an act which, if done by an adult, would be a violation of a law of the United States.

B. OREGON HAS NO JURISDICTION OVER THE FEDERAL OFFENSES WHICH CONSTITUTE THE ALLEGED ACT OF JUVENILE DELINQUENCY IN THIS CASE

I reach the same conclusion, namely, that the state lacks jurisdiction in this matter, by another line of reasoning as well.

Under the interplay of laws in this case, an anomaly would result if the juvenile's jurisdictional argument were correct. If E.K., a Warm Springs juvenile, were indeed subject to the jurisdiction of the juvenile court of the state, his case would be incapable of transfer to an adult court of the state. In short, he would be a non-remandable juvenile, despite the provisions of ORS 419.533. He is charged with a federal offense over which the adult state court has no jurisdiction. Hence, the state could not have criminal jurisdiction over him as an adult.

Thus, no matter what the circumstances, nor how aggravated the crime, a Warm Springs juvenile offender could never be tried as an adult in state court where the offense occurred on the reservation.

Faced with a similar situation, the Eighth Circuit has apparently concluded that the exclusive federal jurisdiction over the acts enumerated in § 1153 precludes state jurisdiction when the alleged act of juvenile delinquency does not constitute a cognizable state offense as well as a federal crime. This is the situation which arises with a violation by an Indian on a reservation on exempted Indian Country. See U. S. v. Allen, 574 F.2d 435, 438 n.5 (8th Cir. 1978). The Eighth Circuit's construction of the Juvenile Delinquency Act assumes that the state must properly be able to exercise jurisdiction over the person for the very act which is the basis for the charge of juvenile delinquency.

II. STANDARD OF ADMISSIBILITY OF EVIDENCE IN A HEARING ON A MOTION TO TRANSFER:

Counsel for the juvenile raised an objection to the evidence submitted at the transfer hearing as to the circumstances of the facts out of which the juvenile accusation arose. This evidence came in the following fashion. A preliminary hearing (or its equivalent) was held before the Magistrate shortly after the juvenile was taken into custody.⁴ At the transfer hearing, the government offered (Ex. 4) a transcript of the testimony of an FBI agent who was the sole witness at the preliminary hearing. The agent's testimony recited the substance of the three charges, as told to him by relevant tribal police and residents who had first-hand knowledge of the activities of the juvenile. Counsel's objection was, essentially, based upon hearsay and upon confrontation and due process constitutional grounds.

The Federal Juvenile Delinquency Act (FJDA) of 1974, Public Law 93-415, Title V, 18 U.S.C. §§ 5031-5042, defines juvenile delinquency as "the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult." 18 U.S.C. § 5031. An adjudication of delinquency under the provisions of this act is a determination of status, and not a conviction of crime. Allen, supra, 574 F.2d at 437. See also, similar conclusion reached under the same...