Glinski, Herman J.

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Marquette University Law School

Marquette Law ReviewVolume 25Issue 2 February 1941 Article 7Criminal Law - Crimes Committed by or AgainstIndians On and Off Reservations in the State -Jurisdiction of a State CourtHerman J. GlinskiFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationHerman J. Glinski, Criminal Law - Crimes Committed by or Against Indians On and Off Reservations in the State - Jurisdiction of a StateCourt, 25 Marq. L. Rev. 97 (1941).Available at: http://scholarship.law.marquette.edu/mulr/vol25/iss2/7RECENT DECISIONSjurisdictions, as exemplified in McElwain v. Allen, 241 Mass. 112, 134 N.E. 620(1922), would probably hold a cemetery a charitable corporation for the pur-pose of receiving a charitable gift, but when such a decision would deprive em-ployees of benefits explicitly granted to them by an exercise of the police power,these same jurisdictions will hold that a cemetery is not a charitable corporation.LLOYD J. PLANERT.Criminal Law-Crimes Committed by or Against Indians On and Off Reser-vations in the State-Jurisdiction of State Court.-The defendant, a ChippewaIndian listed on the Indian rolls of the Lac Du Flambeau band of Lake Supe-rior Indians in Wisconsin, was charged with wrongfully having in his possessionparts of a doe deer during the closed season in violation of the state game laws.By stipulation it was agreed that the crime was committed on lands locatedadjacent to an Indian reservation but within territory ceded by the Indiansto the United States under various treaties. The defendant admitted his guiltbut objected to the jurisdiction of the circuit court. The circuit court adjudgedhim guilty, providing it had jurisdiction. Held, upon certified question, the statecourt has jurisdiction, notwithstanding the reservation of hunting rights con-tained in the treaties. State v. La Barge, 234 Wis. 440, 291 N.W. 299 (1940).The court rested its disposition of the case upon State v. Morrin, 136 Wis.552, 117 N.W. 1006 (1908) ; State v. Johnson, 212 Wis. 301, 249 N.W. 284 (1933) ;Wardv.Race Horse, 163 U.S. 504, 16 Sup. Ct. 1076, 41 L.Ed. 244 (1896), and Peo-ple ex rel. Kennedy v. Becker, 241 U.S. 556, 36 Sup. Ct. 705, 60 L.Ed. 1166 (1916).The gist of these cases is that Congress has the power to abrogate the pro-visions of an Indian Treaty and that when an act of Congress admits a stateinto the Union, and declares without reservation that such state shall have allthe powers of the other states of the Union, this constitutes an abrogation ofany previous treaty stipulation with the Indians within the territory of such staterespecting their right to fish and hunt. To exempt such Indians from state lawsregulating fishing and hunting within the borders of a state after its admissioninto the Union would deprive the state of its sovereign power to regulate therights of hunting and fishing, and would deny to such state admission into theUnion on an equal footing with the original states, upon the ground that a treatywith the national government giving the right to hunt and fish within territorywhich subsequently is embraced within the limits of a state is a privilege in con-flict with the act of admitting the state into the Union on an equality with the.other states and is repealed thereby.For many years the policy of the United States was to give the Indiansthemselves jurisdiction of crimes committed by one Indian against another ofthe same tribe, and accordingly it was uniformly held that the United Statescourts had no jurisdiction of such crimes. United States v. Rogers, 4 How. 567,11 L.Ed. 1105 (1846) ; Nofire v. United States, 164 U.S. 657, 17 Sup. Ct. 212, 41L.Ed. 588 (1897). Neither the federal or state courts had jurisdiction of theseoffenses, such offenses being punishable solely by the laws of the tribe. Ex parteKan-gi-shim-ca, 109 U.S. 556, 3 Sup. Ct. 396, 27 L.Ed. 1030 (1883) ; Act March3, 1885 (23 St. at L. 385) ; Pen. Code § 328. This original policy was changedin 1885 when Congress conferred jurisdiction on the federal courts of the moreserious crimes committed by an Indian against another Indian or other personwithin the limits of an Indian reservation located within a state, and on terri-torial courts when the reservation was located within the limits of a territory.19411THE MARQUETTE LAW REVIEWKitto v. State, 98 Neb. 164, 152 N.W. 380 (1915); United States v. Kagama, 118U.S. 375, 6 Sup. Ct. 1109, 30 L.Ed. 228 (1886).The jurisdiction of the Federal Government over Indian tribes, and over themembers of such tribes while they are on an Indian reservation is exclusive.As a consequence of this principle, it follows that while they are on their reserva-tions the state within which the reservation is located can in no way controlor govern them. Buck v. Branson, 34 Okla. 807, 127 Pac. 436, 50 L.R.A. (N.s.)876 (1912) ; Apapas v. United States, 233 U.S. 587, 34 Sup. Ct. 704, 58 L.Ed.1104 (1914); State v. Campbell, 53 Minn. 354, 55 N.W. 553, 21 L.R.A. 169(1893); Donnelly v. United States, 228 U.S. 243, 33 Sup. Ct. 449, 57 L.Ed. 820,Ann. Cas. 1913E 710. But there are a few early decisions to the contrary.See State v. Harris, 47 Wis. 298, 2 N.W. 543 (1879); State v. Doxtater, 47 Wis.278, 2 N.W. 439 (1879) ; Deragon v. Sero, 137 Wis. 276, 118 N.W. 839, 20 L.R.A.(N.s.) 842 (1908). Although an Indian becomes a full-fledged citizen of theUnited States, yet if he continues to live on a reservation he is subject to theexclusive jurisdiction of the United States. See Notes: Ann. Cas. 1914B 652; Ann.Cas. 1915D 371. Congress can provide that the laws of the state shall extend overand apply to Indian country. Eddy v. Lafayette, 163 U.S. 456, 16 Sup. Ct. 1082,41 L.Ed. 225 (1896).But Indians, although living on a reservation and maintaining tribal relations,are amenable to the laws of the state when they are off the reservation. EXparte Moore, 28 S.D. 339, 133 N.W. 817, Ann. Cas. 1914B 648 (1911). In theabsence of a statute or treaty provision granting or retaining jurisdiction infavor of the United States, the state courts have exclusive jurisdiction over crimescommitted by tribal or other Indians within the state and outside the limits ofany Indian reservation. In re Wolf, 27 Fed. 606 (D.C. Ark. 1886) ; United Statesv. Kiya, 126 Fed. 879 (D.C. N.D. 1903); United States v. Frank Black SpottedHorse, 282 Fed. 349 (D.C. S.D. 1922) ; United States v. Sa-coo-da-cot, 27 Fed.Cas. No. 16, 212, 1 Dill. 271, 1 Abb. 377 (C.C. Neb. 1870); Draper v. UnitedStates, 164 U.S. 240, 17 Sup. Ct. 107, 41 L.Ed. 419 (1896); United States v. LaPlant, 200 Fed. 92 (D.C. S.D. 1911). Under its police power a state withinwhose borders a tribe is located may exercise a police power over the personsand property of such Indians, so far as necessary to preserve the peace of thestate and protect the tribe from imposition and intrusion, e.g., prohibiting thesettlement on Indian lands of persons other than Indians. New York v. Dibble,21 How. 366, 16 L.Ed. 149 (1859). Thus, a state can prohibit the sale of intoxi-cating liquors to Indians in the exercise of its police power. State v. Mamlock,58 Wash. 631, 109 Pac. 47 (1910). But it is settled that the use of intoxicatingliquors on an Indian reservation cannot be regulated by the state within whoseborders the reservation is located in the absence of an act so providing. UnitedStates v. Sandoval, 231 U.S. 28, 34 Sup. Ct. 1, 58 L.Ed. 107 (1913). Unlessrestricted by treaty with the Indian tribe or by the act admitting the state intothe Union or by other acts of Congress then in existence, the state jurisdictionextends over the territorial limits of an Indian reservation so as to apply to allcrimes committed thereon by persons not members of the tribe against othernon-members of the tribe, and in such case the United States courts have nojurisdiction. United States v. McBrantey, 104 U.S. 621, 26 L.Ed. 869 (1882).Again, Indians are amenable to state laws for murder or other offenses againstsuch laws, committed by them off the reservation and within the limits of thestate, even though the crime is committed against an Indian of the same tribe.State v. Campbell, supra; Pablo v. People, 23 Colo. 134, 46 Pac. 636 (1896).[Vol. 25RECENT DECISIONSClearly and logically, it follows that crimes committed outside of a reservationby white persons against Indians are also punishable under the laws of thestate where such crime is committed. State v. Campbell, supra. Even a clause inan enabling act providing that "Indian lands shall remain under the absolutejurisdiction and control of the Congress of the United States," does not deprivethe state courts of such exclusive jurisdiction over crimes on Indian reserva-tions not committed by or against Indians. United States v. Kagama, supra. ButDonnelly v. United States, supra, held that the jurisdiction of the federal courtsover Indian reservations within state limits extends not only to crimes committedby an Indian, but also to crimes committed on the reservation against an Indianby a white person. An Indian who has taken land in severalty and who hasvoluntarily taken up within the limits of the state his residence separate fromany tribe of Indians, and who has adopted habits of civilized life, is amenableto the general criminal laws of the state as to all criminal offenses, althoughcommitted within an Indian reservation, excepting only where the acts of .Con-gress, by express provisions, in particular cases made the law of the UnitedStates applicable to such Indians. Kitto v. State, supra; State v. Ninrod, 30 S.D.239, 138 N.W. 377 (1912).The federal court has jurisdiction of a crime committed against an allotteeIndian, or an allotment held in trust by the United States for the allottee, withinthe trust period. United States v. Pelican, 232 U.S. 442, 34 Sup. Ct 396, 58L.Ed. 676 (1914). The federal court has jurisdiction of a crime committed on anIndian reservation by an Indian allottee who has not received a patent from theUnited States and is under the charge of a United States agent State v. Con-don, 79 Wash. 97, 139 Pac. 871 (1914). But the United States courts have noexclusive jurisdiction over an offense committed by one Indian against anotherIndian on an Indian allotment upon the public domain outside the boundaries ofany reservation and within the limits of the state. Ex parte Moore, supra. As towhether the federal courts have jurisdiction of offenses committed on Indianreservations by or against Indian allottees, who, by statute, have become citizensor have been made subject to state laws, there is an apparent lack of harmonyin the decisions. It has been decided in some cases that the federal courts havejurisdiction. United States v. Logan, 105 Fed. 240 (C.C. Ore. 1900); State v.Columbia George, 39 Ore. 127, 65 Pac. 604 (1901). Other cases hold that thejurisdiction is in the state courts. Louie v. United States, 274 Fed. 47 (C.C.A.9th 1921) ; In re Now-ge-zhuck, 69 Kan. 410, 76 Pac. 877 (1904) ; State v. Lott,21 Idaho 646, 123 Pac. 491 (1912).HERMAN J. GLINSKI.Criminal Law-Misprision of Felony.-The defendant, having knowledge ofthe commission of the offense of armed robbery, failed to make a disclosure ofthis felony to the proper authorities and did nothing toward the apprehensionof the persons guilty of the crime. The defendant was not a police officer. Hehad received no compensation for his failure to report the crime. Later thedefendant was convicted of misprision. of a felony due to his non-disclosure ofthe facts of the crime.Held, Judgment reversed. Mere silence is not sufficient to be regarded as"concealment!' of a felony unless such, in purpose, is in aid of an offender andof such nature as to constitute one an accessory after the fact. Short of this,the old time common law offense of misprision of a felony is not now a substan-19411

Criminal Law - Crimes Committed by or Against Indians On and Off Reservations in the State - Jurisdiction of a State Court

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Criminal Law - Crimes Committed by or Against Indians On and Off Reservations in the State - Jurisdiction of a State Court

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