STATE, RESPONDENT, v. PEPION, ET AL., APPELLANTS.
No. 9045.
Supreme Court of Montana
Submitted March 9, 1951. Decided March 30, 1951.
230 Pac. (2d) 961
Mr. Arnold H. Olsen, Atty. Gen., Mr. Glen E. Cox, Asst. Atty. Gen., Mr. Lloyd A. Murrills, County Attorney (Glacier), Cut Bank, for respondent.
Mr. Doyle, Mr. Cox and Mr. Murrills argued orally.
MR. JUSTICE BOTTOMLY:
In the state district court of Glacier county, Montana, the defendant Peter Tatsey was tried and convicted of the crime of grand larceny, charged to have been committed by him in Glacier county, by feloniously taking, stealing and carrying away money in excess of $50.00, the property of Leon Bliss. He was sentenced to serve a term of five years at hard labor in the state prison.
This appeal is from the judgment of conviction.
The evidence shows:
That Leon Bliss, starting from Big Sandy, Montana, the night of November 10th, where he had cashed a federal crop insurance check, having paid several bills, had somewhere around $160.00 when he left Big Sandy, going by way of Havre, Kremlin and Shelby, spending money at each place, arriving
Bliss, Mazie, Peter Tatsey and one Andrew Pepion, also an Indian, all left the Hall‘s place in a 1941 model one-seat Plymouth coupe, Tatsey driving, Pepion sitting in the middle, Bliss on the right side with Mazie Chief All Over on his lap. All were intoxicated; they drove down in front of Todd‘s Steakhouse where Tatsey procured three or four pints of whisky with the money Bliss had given him for that purpose. They all proceeded to have more drinks; all then went to Peter Tatsey‘s house in Browning, where they had more drinks of whisky; by this time Bliss was making disparaging and insulting remarks about Indians and the Tatsey home. They then all got back in the Plymouth coupe seated as before; Bliss testified that he went along because he wanted to help drink the balance of the whisky that he paid for. Tatsey drove the car south of Browning on the Browning-Heart Butte road, approximately four or five miles south of the Great Northern depot; all of the
The complaining witness Bliss testified: That when he came to some time later he had no money; that he did not know whether or not Tatsey or anybody took any money off of him out on the road. At the time the car was stopped, Bliss didn‘t know on what side of the road they had turned off; as a matter of fact Bliss was so drunk at that time as he testified, he didn‘t know what was happening or had happened except that he was struck. Bliss testified he knew it was against the law to buy whisky for Indians on an Indian reservation.
The foregoing recital is a part of the sordid, drunken carousal that the complaining witness, Bliss, was participating in and instigating. Bliss, whose skin is at least white was inducing and attempting to corrupt Mazie Chief All Over, Pepion, and Tatsey, the latter being a ward of the Federal Government.
The town of Browning is the principal trade center for the Blackfeet Indian reservation where is located the Indian hospital, the Indian museum, and the Indian agency; the foregoing as well as the road running southerly from Browning, past the Great Northern Railway‘s depot, which serves Browning, and thence on south to Heart Butte, and the entire country between the two points, are all within the exterior boundaries of the Blackfeet Indian reservation.
Both in the trial court and here Tatsey challenged the jurisdiction of the state district court to try him for the alleged offense. He also challenges the sufficiency of the evidence to sustain the judgment.
In our view of the case the question of jurisdiction is determinative of the appeal.
The evidence shows:
That the defendant Peter Tatsey is an Indian; a ward of
Thus it appears affirmatively that the offense, if any, of which Peter Tatsey, an Indian, was charged, convicted and sentenced, was committed, if at all, within the confines and limits of the Blackfeet Indian reservation, and therefore within “Indian country,” as defined by
By
The jurisdiction and venue is established by
One of the main reasons for the federal government retaining its guardianship and its protection over its Indian wards was because of such occurrences as portrayed here. The policy of the federal government and the reasons therefor are ably stated by the Supreme Court of the United States in United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 1114, 30 L. Ed. 228 (1886), wherein the court said: “Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive, and by congress, and by this court, whenever the question has arisen. * * *
“The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers,
In United States v. Celestine, 215 U. S. 278, 284, 30 S. Ct. 93, 54 L. Ed. 195 (1909), the court speaking of
The evidence and the facts herein subject the defendant Indian to the applicable federal laws, and place him under the exclusive jurisdiction of the United States courts.
It should be pointed out that in order to clarify the different congressional Acts relating to Indians and to remove any doubt as to the federal jurisdiction over “Indian country” and the Indian wards residing therein, the Congress, after extensive hearings and as a result of the reports of the Judicial Con-
It should be borne in mind that the above quoted federal statutes pertain to and are special legislative Acts applicable to Indians, and the commission of the enumerated offenses by Indians on and within “Indian country.”
On the evidence and the facts herein, the applicable federal statutes, the decisions of this court, and of the federal courts, we hold that the state district court was without jurisdiction and that its purported judgment herein is a nullity.
The purported judgment is vacated and the cause remanded with directions to dismiss the information.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES METCALF, ANGSTMAN and FREEBOURN, concur.
On Petition for Rehearing
PER CURIAM.
The petition for rehearing in the above entitled cause is hereby denied.
MR. JUSTICE ANGSTMAN: (dissenting).
Upon further study of this case I am of the view that the opinion as written is erroneous. It holds that all lands within the boundaries of the Indian reservation are “Indian country” within sections 1151, 1153 and 3242, Title 18 U. S. C. A., even though the Indian title may have been extinguished.
In treating of such lands, section 4, part Second of the Enabling Act provides: “* * * 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 Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States“.
It has long been the rule that after the Indian title is extinguished jurisdiction of the United States over the land ceases. United States v. Forty-Three Gallons of Whisky, 93 U. S. 188, 23 L. Ed. 846 (1876); Bates v. Clark, 95 U. S. 204, 24 L. Ed. 471 (1877); Ex Parte Crow Dog, 109 U. S. 556, 3 S. Ct. 396, 27 L. Ed. 1030 (1883); Clairmont v. United States, 225 U. S. 551, 56 L. Ed. 1201, 32 S. Ct. 787 (1912); Dick v. United States, 208 U. S. 340, 28 S. Ct. 399, 52 L. Ed. 520 (1908).
The United States having lost jurisdiction over such lands cannot regain it by amending the statute defining “Indian country” if such were its purpose in enacting
I think the opinion should be rewritten accordingly or that the motion for rehearing should be granted. Whether any of the other points raised by appellant are meritorious, I express no opinion, since they are not treated in the majority opinion.
Rehearing denied March 30, 1951.