United States v. Jon Jay Stone, Jr. ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3733
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United States of America, *
*
Appellee, *
* Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Jon Jay Stone, Jr., *
*
Appellant. *
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Submitted: March 11, 1997
Filed: May 2, 1997
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Before WOLLMAN and BEAM, Circuit Judges, and LAUGHREY,1 District
Judge.
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WOLLMAN, Circuit Judge.
John Jay Stone, Jr. appeals his conviction for violating the Airborne
Hunting Act, 16 U.S.C. § 742j-1. We affirm.
I.
On May 11, 1995, Charles Swartz, an enforcement supervisor for the
Minnesota Department of Natural Resources, witnessed a small airplane
flying at a low altitude over the White Earth Indian
1
The HONORABLE NANETTE K. LAUGHREY, United States District
Judge for the Western District of Missouri, sitting by designation.
Reservation. The plane appeared to be attempting to steer a moose in a
certain direction. When Schwartz stopped and exited his vehicle to
photograph the plane, he heard a gunshot. Schwartz then drove in the
direction of the gunshot and found three Native Americans holding rifles.
Schwartz learned that the three were hunting a moose.
Subsequent investigation revealed that Enrique Vasquez had been hired
by Roger Oberg, acting on behalf of the White Earth Tribal Council of the
White Earth Reservation, to pilot the flight. Stone, an enrolled member
of the White Earth Band of Chippewa Indians, accompanied Vasquez on the
flight. Stone testified that he radioed from the plane and informed the
hunters on the ground of the location of the moose. Stone stated that
during that flight they chased a moose towards the hunters on the ground
and that he witnessed the hunters shoot and kill the moose. Stone admitted
that he knew the activities were illegal.
Stone, Oberg, and Vasquez were indicted for violating the Airborne
Hunting Act. Stone moved to dismiss the indictment, contending that the
district court lacked subject matter jurisdiction. The district court,2
adopting the report and recommendation of the magistrate judge,3 denied the
motion. A jury convicted Stone, but acquitted Oberg and Vasquez. Stone
appeals, contending that the district court lacked subject matter
jurisdiction.
2
The Honorable David S. Doty, United States District Judge for
the District of Minnesota.
3
The Honorable Franklin L. Noel, Chief United States
Magistrate Judge for the District of Minnesota.
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II.
Stone argues that 18 U.S.C. § 1162 (popularly known as Public Law
280) confers jurisdiction upon the state and not the federal courts.4
Stone contends that the enactment of section 1162 was the result of
Congress’s desire “to be out of the business of prosecuting Indians within
Indian Country and mandated that certain states assume that duty and offer
their protection.” Consequently, Stone argues, “the Federal Government
abdicated its duty of protection” and gave “exclusive jurisdiction over 18
U.S.C. 1153, 1152 crimes” to Minnesota.
The first paragraph of 18 U.S.C. § 1152 extends to Indian country
federal enclave jurisdiction over crimes in which the situs
4
Section 1162 states in part:
(a) Each of the States or Territories listed in the
following table shall have jurisdiction over offenses
committed by or against Indians in the areas of Indian
country listed opposite the name of the State or
Territory to the same extent that such State or Territory
has jurisdiction over offenses committed elsewhere within
the State or Territory, and the criminal laws of such
State or Territory shall have the same force and effect
within such Indian country as they have elsewhere within
the State or Territory:
. . . .
Minnesota. . . . . All Indian country within the State,
except the Red Lake Reservation.
. . . .
(c) The Provisions of sections 1152 and 1153 of this
chapter shall not be applicable within the areas of
Indian country listed in subsection (a) of this section
as areas over which the several States have exclusive
jurisdiction.
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of the offense is an element.5 See Stone v. United States, 506 F.2d 561,
563 (8th Cir. 1974). Federal jurisdiction in Indian country is also
granted by 18 U.S.C. § 1153, but only over certain enumerated offenses.6
Stone is correct in his assertion that section 1162 transferred the federal
jurisdiction provided in sections 1152 and 1153 to those states designated
in section 1162. See United States v. Burns, 529 F.2d 114, 117 n.2 (9th
Cir. 1975) (section 1162 delegated jurisdiction over offenses committed in
Indian country to the states, making sections 1152 and 1153 inapplicable);
Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 555 n.8
(9th Cir. 1991) (“Broadly put, [section 1162]
5
Section 1152 provides:
Except as otherwise expressly provided by law, the
general laws of the United States as to the punishment of
offenses committed in any place within the sole and
exclusive jurisdiction of the United States, except the
District of Colombia, shall extend to the Indian country.
This section shall not extend to offenses committed
by one Indian against the person or property of another
Indian, nor to any Indian committing any offense in the
Indian country who had been punished by the local law of
the tribe, or to any case where, by treaty stipulations,
the exclusive jurisdiction over such offenses is or may
be secured to the Indian tribes respectively.
6
Section 1153 provides in part:
Any Indian who commits against the person or
property of another Indian or other person any of the
following offenses, namely, murder, manslaughter,
kidnaping, rape, carnal knowledge of any female, not his
wife, who has not attained the age of sixteen years,
assault with intent to commit rape, incest, assault with
intent to commit murder, assault with a dangerous weapon,
assault resulting in serious bodily injury, arson,
burglary, robbery, and larceny within the Indian country,
shall be subject to the same laws and penalties as all
other persons committing any of the above offenses,
within the exclusive jurisdiction of the United States.
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gave to certain enumerated states concurrent jurisdiction over criminal and
civil matters involving Indians, where jurisdiction had previously vested
only in federal and tribal courts.”).
Stone’s assertion that section 1162 gave the State of Minnesota
exclusive jurisdiction in this case is mistaken, however, for violation of
the Airborne Hunting Act is not one of the offenses enumerated in section
1153. Violation of the Airborne Hunting Act is likewise not within the
purview of section 1152, as it is a crime of general applicability; that
is, the situs of the offense is not an element of the crime. As such, it
applies with equal force when committed by an Indian on the reservation.
See Burns, 529 F.2d at 117 n.2 (section 1162 “does not eliminate federal
jurisdiction over persons committing crimes in violations of the federal
statutes of general applicability”).
Stone also contends that the treaties between the Chippewa Indians
and the United States vested the tribes with jurisdiction over hunting,
fishing, and wild rice gathering and that therefore he cannot be federally
prosecuted for hunting on the reservation. It is true that the Chippewa
Indians reacquired hunting and fishing rights on the reservation through
the Treaty of 1864, 13 Stat. 693, and the Treaty of 1867, 16 Stat. 719.
See State v. Clark, 282 N.W.2d 902, 909 (Minn. 1979) (concluding that the
Chippewa Indians reacquired aboriginal hunting and fishing rights through
the Treaties of 1864 and 1867 and that the Chippewa Indians have “the right
to hunt and fish free of state regulation on all reservation lands”); White
Earth Band of Chippewa Indians v. Alexander, 518 F.Supp. 527, 534 (D.Minn.
1981) (citing Clark, 282 N.W.2d at 908).
As the Ninth Circuit pointed out, however, despite the fishing rights
contained in a treaty, “Indians do not have any treaty
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reserved right to exercise exclusive jurisdiction over such fishing
matters.” United States v. Sohappy, 770 F.2d 816, 820 (9th Cir.
1985)(upholding federal jurisdiction over an Indian on the reservation
under federal statute criminalizing transporting, selling, or acquiring
fish). “Indian sovereignty is ‘necessarily limited’ and must not conflict
with the the [sic] overriding sovereignty of the United States.” Id. at
819. Federal laws of general applicability “are applicable to the Indian
unless there exists some treaty right which exempts the Indian from the
operation of the particular statutes in question.” Burns, 529 F.2d at 117;
Sohappy, 770 F.2d at 820 (quoting Burns, 529 F.2d at 117). The Treaties
of 1864 and 1867 contain no language which purports to immunize Stone from
prosecution for violating laws of general applicability. Moreover, as in
Sohappy, federal jurisdiction under the Airborne Hunting Act is not
“disruptive of tribal authority, for rather than overturning basic tribal
regulations, it supports the tribal laws by authorizing federal penalties
for violations,” and its enforcement against an Indian on Indian land is
proper. Id. at 819-20.7
The judgment is affirmed.
7
The White Earth Band’s Conservation Code prohibits the taking
and/or pursuit of game from a motor vehicle: “It is prohibited to
take, attempt to take or pursue game animals, furbearers or
waterfowl from a motor vehicle excepting that waterfowl may be
taken from a motorized boat with the engine raised and shut off.”
C.C. 400.05, subd. 3. Airplanes are included in the definition of
“motor vehicle” under the Conservation Code: “Motor Vehicle:
Shall mean, but not be limited to, any car, truck, automobile,
motorized boat, cycle, snowmobile, all-terrain vehicle, airplane or
any other vehicle that is motorized.” C.C. 100.08, subd. 20.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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