State v. Lohnes

. GRIMSON, Judge.

This matter comes before us on a certified question under Chapter 32-24, NDRC 1943. An information was filed on the 25th day of October, 1954 in the County Court o.f Increased Jurisdiction of Benson County, North Dakota. The information charged the defendant with the commission of the crime of assault and battery. To this information the defendant entered a plea of guilty. Thereupon his attorney filed a motion in arrest of judgment on the ground that the court had no jurisdiction of the offense charged in the information for the reasons that the defendant and the complaining witness were both Indians enrolled upon the records of the Devils Lake Sioux Indian Reservation as members of the Devils Lake Sioux Indian tribe and wards of the government of the United States of America; that the offense charged “was committed on lands allotted to an Indian, the title to which is held in trust by the United States of America and is within the exclusive jurisdiction of the government of the United States of America”.

Thereafter the attorneys filed briefs and argued the motion before the court. On November 23, 1954, the court denied the motion. Counsel, both for the state and the defendant, then made application to the court for the certification to the supreme court of the following question:

“Does the Benson County Court, being a Court of increased jurisdiction, have jurisdiction over the offense charged in the information filed herein in view of The Organic Law (Chapter 86, 12 U.S.Stat. 239), the Enabling Act (25 U.S.Stat. 676), Article 16, Section 203 of the Constitution of North Dakota, the Act of Congress of May 31, 1946 (60 Stat. 229), the Act of Congress of February 19, 1867 (15 Stat. 505), the Act of Congress of February 14, 1873 (17 Stat. 456), and the Act of Congress of June 24, 1874 (18 Stat. 167).”

The court granted the application and certified the question to us for determination, “because this is a public question of great importance to the Indian People of the Fort Totten Indian Reservation, and to the law enforcement officials and the courts of Benson County, North Dakota, and because there is an issue of law involved in this case, the interpretation of which is in doubt and vital, and principally determinative of the issues in this case, * * *”

It' appears clearly that the proceedings were in accordance with the requirements of Chapter 32-24, NDRC 1943. State v. Elkin, 68 N.D. 93, 277 N.W. 89. . We will therefore proceed to answer the question.

What, is now North Dakota was in early times occupied and controlled by bands of roving Sioux Indians.

On March 2, 1861, Congress enacted Chapter 86, 12 U.S.Statutes at Large, page 239, providing for the organization of the Territory of Dakota and for temporary government thereof. That statute is known as the Organic Law. Among the provisions thereof is the following:

“Provided, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, * * * or to affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this act had never passed * *

In 1867 the Devils Lake Indian Reservation was established by a treaty with the Sissiton and Warpeton Bands of the Dakota or Sioux Indians. According1 to that treaty those bands had been friendly during the Sioux Indian outbreak in 1862 and had been of assistance to the United States. Furthermore, Sioux annuities and reservations had been confiscated without any provision having been made by congress for the support of those friendly bands who had consequently suffered from want of subsistence and clothing. Now they had asked, through their representatives, for recognition and some help to enable them to take up agricultural life. In consideration of these matters the Devils Lake and other North Dakota reservations were set up .for those friendly bands of Indians. In that treaty provisions were made for the gradual allotment of such lands to individual Indians who desired to engage in agriculture and funds were to be provided for their needs and assistance in making such change in their method of living. Provision was also made authorizing the Indians to adopt rules and regulations for the security of their lives and property and for the advancement of the civilization and agricultural prosperity of members of said bands. All such rules, however, were subject to the sanction of the government agent. This treaty was ratified by the Act of Congress April IS, 1867, 15 U.S. Statutes at Large, page 505.

On June 7, 1872, 17 Stat. 281, that treaty was amended to include a provision in which these-bands of Sioux Indians ceded, sold, .and relinquished to the United States all their right, title, and interest in the territory described in the Treaty of April-15, 1867, excepting therefrom that portion particularly described as a permanent reservation for occupancy and cultivation by them which was at that time being occupied and alloted to them under that treaty. In consideration of the amended treaty, an appropriation was made for the payment of the first installment of eighty thousand dollars to be used for the development of farming and civilization on the reservation. 17 U.S.Statutes at Large, page 456. A second installment payment under the Treaty of April 15, 1867, was made by the Act of Congress of June 22, 1874, 18 U.S.Statutes at Large, page 167. No other promises were made to the Indians in those treaties as to the disposition or government of the lands ceded.

By these various acts the Devils Lake. Sioux Indian tribes ceded to the United States all their right, title and interest to the lands constituting the Devils Lake Sioux Indian Reservation and congress was given absolute authority not only over the lands but also over the Indians occupying them as shown by the provision of the Organic Law heretofore quoted.

In 1889 congress provided for the division of the territory of Dakota into two states, North Dakota and South Dakota, and for the admission into the Union of North Dakota, South Dakota, Montana and Washington. 25 U.S.Statutes at Large, Chapter 180, page 676. This law, known as the Enabling Act, provided for the holding of constitutional conventions in the different states and made provisions for the states to be admitted into the Union “on an equal footing with the original States”.

It is also provided therein:

“And said conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States:

“First. * * *

“Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said India» lands shall remain under the absolute jurisdiction and control of the Congress of the United States; * *

Then follow provisions to keep said lands tax exempt except as provided in the act or by other acts of congress.

In accordance therewith Article XVI, Section 203 of the Constitution of North Dakota provided the following with the same preamble of irrevocability:

“The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subj ect to the disposition of the United States, and that said Indian lands shall ■ remain under the absolute jurisdiction and control of the congress of the United States; * *

It is contended on behalf of the defendant that because of the provisions' in the Enabling Act and the Constitution, which we have italicized, North Dakota has no jurisdiction in any manner over the Indian lands or the Indians on the reservation.

Montana and South Dakota, admitted under the same enabling act as North Dakota, have the above provision in their Constitutions. Different aspects of the question here involved have been before the federal courts and the courts of these states.

A study of those sections of the Enabling Act and the Constitution and the interpretation thereof as given in those cases shows that congress retained for the United States, and the people of North Dakota disclaimed all right, title, and interest to the unappropriated public lands and to the Indian lands within the state and that it was agreed that such Indian lands should remain subject to the disposition and control of the United States and should never be taxed as long as the title remained in the United States.

There is no reservation, however, of jurisdiction or control in the United States over any part of the unappropriated public lands as distinguished from Indian lands. It has been repeatedly held that people settling on those public lands were subject to the laws of the state and that their personal property was subject to taxation. See State ex rel. Tompton v. Denoyer, 6 N.D. 586, 593, 72 N.W. 1014.

r The meaning of the provision in the Enabling Act and the Constitution that “said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States” is not so iidear, That such provision was not nec.es-sary .for the retention of title.to those lands in the United States, or the disclaimer thereof by the state, is shown by the fact mat such jurisdiction was not reserved e ver the unappropriated public lands.

To get the legislative intent in the use of that provision the facts existing as the background for its use may be considered. Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217, 19 A.L.R.2d 1147; 16 C.J.S., Constitutional Law, § 30, page 68.

The United States had taken over possession of these lands from the Indians and in return had assumed obligations to help the Indians change from a nomadic life to a life of agriculture. The government had bound itself by treaties to aid the Indians in the progress of that change in their habits of life and to protect them during that time. The government had in a sense assumed the position of guardian of. the Indian people. Under its guardianship the government had to provide civilizing influences like schools and churches. It had to teach them the rudiments of agriculture and aid them in the development thereof. The government had to protect them from being defrauded in their dealings with their more able and aggressive white neighbors as. long as they were not sufficiently advanced in their new method of life to take care of themselves. It also was the duty of the government to see that justice prevailed if they got into trouble, either among themselves or with others. Finally the government had agreed to allot those lands severally to the Indians when they were sufficiently advanced in civilization to take care of themselves.

This history must be taken into consideration in determining the meaning of the phrase “absolute jurisdiction and control over Indian lands.” That means more than the title to the Indian lands which was secured for the United States in the first part of the section. On these lands the United States was caring for its wards, the Indians, and aiding them in. acquiring the habits of civilization. During that time the jurisdiction over the Indians and'their lands had been absolute in the United States. The Organic Law under which-the Territory of Dakota was organized provided that nothing in the act should impair the rights of the Indians in the territory or “affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this act had never passed * * The provision in the Enabling Act and the Constitution is that the title to the Indian lands shall "remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States”. Webster’s New International Dictionary defines “remain” as “To continue unchanged in place, form or condition or undiminished in quantity, or to abide; endure; last; continue;”

Undoubtedly congress and the constitu-j tional convention intended this reservation; of jurisdiction over the Indian lands toi cover jurisdiction over the Indian peoplJ living on them as well as the lands theml selves as provided in the Organic Lawl That was necessary in order to give the government the opportunity to control and protect the Indian people living on them and thus carry out and fulfill its obligations under the treaties without hindrance.

There was sound reason for the reservation by congress of jurisdiction over the Indians to that extent. The Indians had at least possessory rights over the lands constituting the territory of Dakota. They had ceded those lands to the United States on the promise of the United States that they would be protected and aided in learning and becoming established in the new ways of life. The government owed them that obligation. When viewed in this light it is clear that the Indians were-the responsibility of the United States and that the United States should retain complete control over them and their lands until that obligation was fulfilled.

There also appears to have been a very good reason why the members of the .constitutional convention in behalf of their constituents were just as anxious to refrain from all responsibility for the Indians until the government had fulfilled its obligations so that further guardianship was not necessary. During the time of that tutelage there would necessarily be considerable expense and trouble. During that time the state was prohibited from taxing the Indian lands and Indian property. There was good reason why the pioneers of Dakota were unwilling to assume any responsibility for the conduct and care of people in that state of em'bryo civilization then existing among the Indians.

The case of State ex rel. Tompton v. Denoyer, 6 N.D. 586, 594, 72 N.W. 1014, 1017, supports this interpretation. In that case Judge Bartholomew thoroughly reviews the situation regarding Indians at the time o.f the enactment of the Constitution and the cases bearing on that section. After quoting the first part of the section he says:

“Thus far the statute is dealing with the title to the land only, and the unappropriated public lands and lands owned or held by an Indian or Indian tribes are placed upon the same basis or footing so far as the right of the ..United States to dispose of the title is concerned. Bui the statute immediately adds, ‘and that said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States.’ This provision applies to the Indian lands only, and it is not confined to the matter of title. It deals with a jurisdiction that extends to the lands themselves, and must have intended a more enlarged jurisdiction than was conferred . by the preceding language. * * * The reasons which actuated congress in thus retaining the broader jurisdiction over the Indian lands are perfectly apparent. These Indian lands are now universally held by the Indians under some treaty or contract with the United States, and common .good faith required congress to retain all the jurisdiction over these lands, necessary to enable the United States, to fulfill its treaty and contract obligations. Moreover, a well-recognized moral obligation rests upon the general government to care for these unfortunate wards of the nation. This duty cannot be performed unless the general government retains the right to exclude the white race from the Indian lands; otherwise, the Indian will be speedily dispossessed. Government must retain the power to establish agencies, erect school houses and churches, and introduce all desired civilizing influences, without being in any manner dependent upon the state. This increased jurisdiction was required for the best welfare of the Indian, and was in line with the government policy which seeks to convert the nomadic savage into the civilized citizen.” (Emphasis supplied.) •

In the South Dakota case of United States v. Ewing, D.C., 47 F. 809, 813, the federal court says:

“The reservations and provisions found in the act creating the territory ef Dakota and the state of South Dakota, whereby there is reserved to the United States the absolute jurisdiction and control over the Indian lands, were unquestionably included therein for the purpose of preventing any question arising as to the continued power and control of the United States over the Indian country, such continued power and control being necessary to enable the United States to discharge its treaty obligations and duties to the Indians. It is argued by counsel that the reservation of absolute jurisdiction and control over the Indian lands contained in the omnibus act is to be confined to the mere matter of the ownership of the title and control of the right of taxation, but such limited construction is not admissible. The reservation was meant to be as broad as the duty which the United States assumed in regard to these lands, which was to secure to the Indians the peaceful possession thereof as their home, and to protect their persons and property thereon.”

Montana was admitted under the same Enabling Act as North Dakota and its constitution contains the same clause with regard to jurisdiction over Indian lands. In the case of United States v. Partello, C.C., 48 F. 670, 675, the court analyzes the meaning of those clauses.

While in the final decision in that case the court erred in holding that the jurisdiction retained by the United States was in excess of that necessary to perform its treaty obligations to the Indians, and included jurisdiction of crimes committed by non-Indians against non-Indians on Indian lands, we nevertheless believe the reasoning of the court is valid in demonstrating that the intention of the provision under consideration was to retain in the United States the jurisdiction to fulfill its treaty obligations by prosecuting crimes by and against Indians, when committed on Indian lands, the court said:

“The question here presented is, what did congress intend by the clause, ‘and said Indian lands shall remain under the absolute jurisdiction and control of the United States;’ and what did the convention that framed the Montana constitution intend by it? * * * In the first part of the portion of section 4 of said act quoted above it appears that, as an individual proprietor, the United States was fully protected in regard to its rights to Indian lands, and the Indians were protected in their rights of occupancy. It does not seem that the clause under consideration could add anything to the rights of the United States in regard to these lands as a proprietor. * * * It was agreed by the ordinance above referred to that congress was to retain the absolute jurisdiction and control over these Indian lands within the Indian reservations in Montana. The word ‘jurisdiction,’ as used in the above clause, when applied to congress, means the power of governing such lands; to legislate for them; the power or right of exercising authority over them. * * * When we say congress has the right to legislate for a place within its exclusive jurisdiction, we mean for the people who are there, as well as concerning the land itself.”

That this jurisdiction was limited to, and included jurisdiction to enforce all laws upon Indian lands in so far as required by its treaty obligations to the Indians, we think is well settled.

In State v. Denoyer, supra, Judge Bartholomew, says:

“These authorities establish firmly the proposition that the jurisdiction reserved by the enabling act was not an exclusive jurisdiction. It did not take Indian lands out of the jurisdiction of the state where located, in the sense that the lands in another state are excluded. The United States retained all jurisdiction necessary for the disposition of the land and the title thereto ; all jurisdiction necessary to enable it to carry out all treaty and contract stipulations with the Indians; all jurisdiction necessary to enable it to protect and civilize its unfortunate wards. But the state had jurisdiction to tax the property of its citizens within the reservation, to enter thereon for the purpose of enforcing, by levy and sale, the collection of such tax. It had jurisdiction to punish its citizens for crimes committed one against the other thereon.”

This holding was confirmed in State ex rel. Baker v. Mountrail County, 28 N.D. 389, 393, 149 N.W. 120, 121, where Judge Fisk, speaking for the court, says:

“While it still retains a limited or qualified jurisdiction for certain purposes over such lands, the Congress of the United States relinquished to the territory of Dakota by the Organic Act, and to the state of North Dakota by the Enabling Act, all jurisdiction and governmental authority over these lands and the inhabitants residing thereon not thus specially reserved to itself(Emphasis supplied.)

Our latest holding on this matter is in State v. Kuntz, N.D., 66 N.W.2d 531, where we said:

“State courts generally have jurisdiction over offenses committed on Indian reservations by persons who are not Indians against other persons who are not Indians,” but “do not have jurisdiction over crimes committed on the Fort Berthold Indian Reservation by one who is not an Indian against one who is an Indian.”

This court has also held that where others than Indians occupied the Indian lands they were subject to state laws. In La Duke v. Melin, 45 N.D. 349, 177 N.W. 673, 676, it is held that:

“Even if such lands be deemed part of an Indian reservation, the property of persons other than Indians situated thereon might be subjected to taxation by the laws of this state.”

In the case of Anderson v. Brule County, 67 S.D. 308, 313, 292 N.W. 429, 431, the court says regarding this matter:

“That these and similar provisions in other enabling acts and constitutions of the several states were inserted for the purpose of maintaining ample supreme powers on the part of the United States to permit it to fully respond to its legal and moral obligations to the Indians rather than for the purpose of withholding power from the states to exercise jurisdiction over the reservations, and that it was intended the states should exercise a limited jurisdiction over Indian reservations within their exterior boundaries, are settled propositions. Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; Lebo v. Griffith, supra (42 S.D. 198, 173 N.W. 840); King v. McAndrews, supra, C.C., 104 F. 430; State ex rel. Tompton v. Denoyer, 6 N.D. 586, 72 N.W. 1014; State ex rel. Baker v. Mountrail County, 28 N.D. 389, 149 N.W. 120; Porter v. Hall, 34 Ariz. 308, 271 P. 411; Red Hawk v. Joines, 129 Or. 620, 278 P. 572, 577 ; 31. C.J. 531.”

After reviewing the authorities on jurisdiction over Indian lands, Judge Bartholomew, in State ex rel. Tompton v. Denoyer, supra, 6 N.D. 586, 72 N.W. 1019, says-:

“And the principles of these decisions logically and necessarily lead further, and give the state the right to extend to its citizens lawfully upon such Indian lands all the privileges and immunities of the laws of the state, where the same in no manner conflict with the reserved jurisdiction of the United States. And this construction places the enabling act in entire harmony with the Dawes bill.” (Emphasis supplied.)

Other cases holding that all jurisdiction over Indian affairs on the reservation is reserved in congress but all other matters are subject to the jurisdiction of the state are Draper v. United States, 164 U.S. 240, 17 Sup.Ct. 107, 4 L.Ed. 419; State v. Monroe, 83 Mont. 556, 274 P. 840; Truscott v. Hurlbut Land & Cattle Co., 9 Cir., 73 F. 60.

The United States Government has pursued a policy of aiding the Indians and trying to prepare them for a life that would make them self supporting and independent at which time United States obligations to the Indians would be completed.

The 'information in this case, after alleging the crime of assault and battery charges:

“That at said time and place and upon Indian land, the title to which is held in trust by the United States of America for the surviving heirs of the original allottee, one Frowling, The Indian title to which has not been extinguished, and which Indian allotment, is located within the Devils Lake Sioux Indian Reservation and within the said County of Benson, the said Leonard Lohnes residing upon said reservation, did -wilfully, wrongfully - and unlawfully heat and slap.one Mary Lohnes' about’ the ■ body with his hands, the said Leonard Lohnes and Mary-Lohnes at-said time both being enrolled Indians of the Devils Lake Sioux Indian Reservation and wards of the Government of the United States of America.”

The defendant’s plea of guilty to the charge containing that statement is an admission that he is a ward of the government. Consequently, the reservation of jurisdiction and control over him is within the reservation 1 of jurisdiction in the United States made in the Enabling Act and agreed to by the state in the Constitution.

It is contended, however, on behalf of the state in this case that congress has by the Act of May 31, 1946, transferred to the State concurrent jurisdiction over criminal offenses by or against Indians on the Devils Lake Sioux Indian Reservation. The Act reads as follows:'

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred on the State of North .Dakota over offenses committed by or against Indians on the Devils Lake Indian Reservation in North Dakota to the same extent as its courts have jurisdiction generally over offenses committed within said State outside of Indian reservations: Provided, however, That nothing herein contained shall deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on said reservation/ nor shall anything herein contained deprive any Indian of any protection afforded by Federal law, contract, or treaty against the taxation or alienation of any restricted property.” 60 U.S. Statutes at Large, page 229.

While this grants the state' only concurrent jurisdiction it does grant jurisdiction to the state over offenses committed by or against Indians on the reservation generally. It makes a change from the exclusive jurisdiction over Indians reserved .in the United States by the Enabling Act, and granted by the Constitution. It transfers! some of that exclusive jurisdiction from the United States to the state.

The'Enabling Act provided that the constitutional conventions should enact certain ordinances under the condition that they should be “irrevocable without the consent of the United States and the people of said States”. Section 4, Chapter 180, 25 U.S. Statutes at Large, page 676. Article XVI of the Constitution of North Dakota accepted that condition. One of the ordinances provided by’ the Enabling Act and enacted by the Constitution under that condition is Section 203, Article XVI, North Dakota Constitution, heretofore quoted, including the provision “that said Indian lands shall remain under the, absolute jurisdiction and control of the congress of the United States”. It was thereby required by Congress, agreed to by the Constitutional Convention and approved by a vote of the people in adopting the constitution that absolute jurisdiction and control of the Indian lands and people was retained in the United States and that that provision should not be changed without the consent of the United States and the people of North Dakota. That is’ a compact between the United States and the people of North Dakota that needs the consent of both'parties for any change in the jurisdiction over Indians.

There was good reason for that agreement. Both parties should have a say in whether the government had fulfilled its obligations and whether the Indians in North Dakota had become sufficiently advanced in civilization to become self-supporting, tax paying citizens.

The Act of May 31, 1946, conferring upon the State of North Dakota concurrent jurisdiction over all offenses by or against Indians on the Devils Lake Sioux Indian Reservation is a consent by the United States to that change in the original provision governing jurisdiction over the Indians. There is, however, no consent to that change by the people of North Dakota. Before that change as provided by the Act of May 31, 19.46, can become effective consent thereto has to be given by the people of North Dakota. Until that is done jurisdiction. over the Indian offenses on the Devils Lake Sioux Indian Reservation is absolute in the United States.

It follows that the answer to the certified question must be, No. The County Court of Increased Jurisdiction of Benson County, does nqt have jurisdiction in the case at issue.

BURKE, C. J.,' and JOHNSON, J.; concur.