United States v. Jackson

• Decision Date: 04 April 2017
• Docket Number: No. 15-1789,15-1789
• Citation: 853 F.3d 436
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Joseph Joshua JACKSON, Defendant–Appellant Red Lake Band of Chippewa Indians, Amicus on Behalf of Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

853 F.3d 436

UNITED STATES of America, Plaintiff–Appellee

v. Joseph Joshua JACKSON, Defendant–AppellantRed Lake Band of Chippewa Indians, Amicus on Behalf of Appellee

No. 15-1789

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2016

Filed: April 4, 2017

Rehearing and Rehearing En Banc Denied May 10, 2017

Counsel who presented argument on behalf of the appellant was Keala C. Ede, AFPD, of Minneapolis, MN. The following attorney appeared on the appellant brief; Katherine M. Menendez, AFPD, of Minneapolis, MN.Counsel who presented argument on behalf of the appellee and appeared on the brief was Deidre Yvonne Aanstad, AUSA, of Minneapolis, MN.

Counsel who presented argument on behalf of the amicus in support of the appellee and appeared on the brief was Thomas John Peckham, of Albuquerque, NM.

Before LOKEN, SMITH,^* and COLLOTON, Circuit Judges.

LOKEN, Circuit Judge.

Joseph Joshua Jackson, an Indian, was charged with committing federal felony offenses in the town of Redby, Minnesota, historically part of the Red Lake Indian Reservation. The Major Crimes Act grants federal jurisdiction over these offenses when committed by Indians "within the Indian country," 18 U.S.C. § 1153(a), including the Red Lake Reservation, see 18 U.S.C. § 1162(a). Jackson moved to dismiss, arguing the district court lacked subject matter jurisdiction because a 1905 Act of Congress diminished the Red Lake Reservation, removing the town of Redby from Indian country. After the district court denied his motion to dismiss, Jackson conditionally pleaded guilty and appealed that ruling. Concluding the record did not adequately support the district court's determination that Redby is part of Indian country as a matter of law, we vacated the district court's order, allowed Jackson to withdraw his guilty plea, and remanded for further proceedings. United States v. Jackson , 697 F.3d 670, 678 (8th Cir. 2012) ("Jackson I ").

On remand, the parties agreed to resolve the issue of subject matter jurisdiction before Jackson decided whether to withdraw his plea. After an extensive evidentiary hearing, the district court¹ again denied the motion to dismiss and subsequently entered final judgment sentencing Jackson to 136 months in prison. Jackson appeals the order denying his motion to dismiss, again arguing that the 1905 Act diminished the Red Lake Reservation and removed Redby from Indian country. Whether an act of Congress diminished or disestablished an Indian reservation is a question of statutory interpretation we review de novo . See, e.g. , Nebraska v. Parker , ––– U.S. ––––, 136 S.Ct. 1072, 1079, 194 L.Ed.2d 152 (2016). We agree with the district court that the 1905 Act did not diminish the Red Lake Reservation. Accordingly, we affirm.²

I. Background.

A. The term "Indian country" includes "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." 18 U.S.C. § 1151(a). As we explained in Jackson I , Congress can unilaterally alter reservation boundaries, and in modern times the Supreme Court has decided a series of cases "raising the question whether various surplus lands Acts [in the late nineteenth and early twentieth centuries] diminished or entirely terminated particular reservations." 697 F.3d at 672. We summarized the relevant inquiry, quoting from South Dakota v. Yankton Sioux Tribe , 522 U.S. 329, 343–44, 118 S.Ct. 789, 139 L.Ed.2d 773 (1998). Last year, the Supreme Court confirmed that this remains the relevant inquiry:

Only Congress can divest a reservation of its land and diminish its boundaries, and its intent to do so must be clear. To assess whether an Act of Congress diminished a reservation, we start with the statutory text, for the most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands. Under our precedents, we also examine all the circumstances surrounding the opening of a reservation.... [M]any surplus lands Acts did not clearly convey whether the opened lands retained reservation status or were divested of all Indian interests. For that reason, our precedents also look to any unequivocal evidence of the contemporaneous and subsequent understanding of the status of the reservation by members and nonmembers, as well as the United States and the State [where the reservation is located].

Parker , 136 S.Ct. at 1078–79 (citations and quotations omitted). Congress' intent to "alter the terms of an Indian treaty by diminishing a reservation ... must be clear and plain." Yankton Sioux Tribe , 522 U.S. at 343, 118 S.Ct. 789 (citations and quotation omitted). Although the 1905 Act here at issue was not a surplus lands act, we adhere to our ruling in Jackson I that this issue of diminishment is governed by the principles "developed by the Supreme Court in surplus lands Act cases." 697 F.3d at 673.

B. The Red Lake Reservation resulted from an 1863 Treaty between the United States and the Red Lake and Pembina Bands of Chippewa Indians. Two subsequent acts of Congress significantly reduced the Reservation's boundaries. The Nelson Act of January 14, 1889, 25 Stat. 642 ("1889 Act"), provided that the Red Lake Band will "cede, relinquish, and convey" over two million acres to the United States. The Act of February 20, 1904, 33 Stat. 46 ("1904 Act"), ratifying a 1902 agreement, stated that the Band "cede[d], surrender[ed], grant[ed] and convey[ed]" more than 250,000 acres to the United States. Redby is located six miles inside the Red Lake Reservation's present-day exterior boundary.

The 1889 and 1904 Acts were passed during the so-called "allotment era," in which Congress passed surplus lands acts that allotted tribal lands to individual Indians and sold surplus lands to white settlers, reflecting Congress' nationwide policy to promote Indian assimilation and accommodate settlers' westward expansion. See Solem v. Bartlett , 465 U.S. 463, 466, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). These Acts provided that the Red Lake Band ceded its entire interest in the surrendered lands, creating "a nearly conclusive, or almost insurmountable, presumption of diminishment." Jackson I , 697 F.3d at 675 (quotation omitted). Though the 1889 Act mandated the sale of "allotted lands in severalty to the Red Lake Indians on Red Lake Reservation," 25 Stat. 642, 643, the Red Lake Band successfully resisted allotment. Congress in the 1904 Act removed mandatory allotment language, stating Band members "shall be entitled" to allotments. 33 Stat. 46. As late as June 1928, the Secretary of the Interior reported that "it has not yet been found to be practicable to allot the Red Lake Reservation." U.S. Court of Claims, Report of the Commissioner No. H–76 at 96 (April 2, 1934) ("H–76 Report"). Red Lake has remained a "closed" reservation, meaning almost all lands are held communally, "apparently one of only two reservations in the nation to enjoy this status." Nord v. Kelly , 520 F.3d 848, 858 n.7 (8th Cir. 2008) (Murphy, J., concurring).

C. During this period, Congress also actively promoted railroad development by granting railroad rights-of-way through various Indian reservations. In 1899, Congress passed a law enabling railroad companies to obtain rights-of-way, but limiting the amount of land that could be granted. See Act of March 2, 1899, 30 Stat. 990. In 1903, the Red Lake Transportation Company converted a temporary logging permit into a permanent railroad right-of-way extending through part of the Red Lake Reservation into modern day Redby. In 1904, the Minneapolis, Red Lake and Manitoba Railway Company ("MRL&M"), having acquired the Red Lake Transportation Company's interests, petitioned Congress for additional lands surrounding the existing terminal to establish a lumber-shipping hub near Redby. See H. R. Rep. No. 3542 (1905). On February 8, 1905, Congress passed the statute here at issue, entitled an Act to Allow the Minneapolis, Red Lake, and Manitoba Railway Company to Acquire Certain Lands in the Red Lake Reservation ("1905 Act"). The 1905 Act provided, as relevant here:

Be it enacted ... That there is hereby granted to the Minneapolis, Red Lake and Manitoba Railway Company[,] ... a line of railroad ... having its northern terminus at a point ... in the Red Lake Indian Reservation[,] ... the right to select and take from the lands of the Red Lake Indian Reservation grounds adjacent to its northern terminus ... not to exceed in extent three hundred and twenty acres.

Sec. 2. That before title to said lands shall vest in the said railway company, and before said company shall occupy or use said lands, compensation therefor shall be made to the tribes of Indians residing upon the said reservation.... The amount of compensation for said lands shall be ascertained and determined in such manner as the Secretary of the Interior may direct and be subject to his final approval.

Sec. 3. That said company shall file maps ... showing the definite location of the grounds so selected and taken, which said maps shall be subject to the approval of the Secretary of the Interior....

Sec 5. The laws of the United States now in force, or that may hereafter be enacted, prohibiting the introduction and sale of intoxicating liquors in the Indian country, shall be in full force and effect throughout the territory hereby granted, until otherwise directed by Congress or the President of the United States, and for that purpose said tract shall be held to be and to remain a part of the diminished Red Lake Indian Reservation.

Sec. 6. That Congress reserves the right to alter, amend, or repeal this Act or any part thereof.

MRL&M timely selected 312.09 acres where the town of Redby is today, including 11.59 acres that formed its existing right-of-way. The Secretary of the Interior determined fair compensation to the Band, and MRL&M paid $6,816.20 in damages. MRL&M next sought a patent...