STATE EX REL MCDONALD v DIST COU

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No 12244 I N THE SUPREME COURT OF THE STATE OF M N A A OTN STATE OF MONTANA, e x r e l . , THOMAS E McDONALD, Petitioner, THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, i n and f o r t h e County o f M i s s o u l a , JUDGE JACK L GREEN, p r e s i d i n g , Respondent. ORIGINAL PROCEEDING : Counsel o f Record: For P e t i t i o n e r : Edward A Cummings, a r g u e d , M i s s o u l a , Montana. F o r Respondent: Hon Robert L Woodahl, A t t o r n e y G e n e r a l , Helena, Montana. David V G l i k o , A s s i s t a n t A t t o r n e y G e n e r a l , Helena, Montana. Robert L Deschamps, 111, County A t t o r n e y , Missoula , Montana. Michael G McLatchey, Deputy County A t t o r n e y , a r g u e d , M i s s o u l a , Montana. Amicus C u r i a e David J P a t t e r s o n , a r g u e d , M i s s o u l a , Montana. Barney Reagan, a r g u e d , Helena, Montana. Submitted: Decided : Filed : AP!? 1 9 1972 A p r i l 1 0 , 1972 APR 19 1972 M. J u s t i c e Frank I . Haswell delivered the Opinion of t h e Court. r This i s an original appl ication f o r an appropriate extraordinary writ t o determine t h e j u r i s d i c t i o n of a s t a t e d i s t r i c t court over criminal proceedings against an Indian f o r alleged crimes committed on the Flathead Indian Reservation. The d i s t r i c t court of M ssoul a County, the Honorable i Jack L. Green, d i s t r i c t judge, held t h a t the d i s t r i c t court had such criminal j u r i s d i c t i o n and denied defendant's motion t o dismiss. Defendant now seeks review of the d i s t r i c t c o u r t ' s ruling i n the proceeding before us. Thomas E. McDonald, r e l a t o r here, and the defendant i n the d i s t r i c t court, i s an enrolled member of the Confederated Sal ish and Kootenai Tribes of the Flathead Indian Reservation. On June 12, 1971 he was arrested a t his home on the reservation and subsequently charged with three counts of criminal s a l e of dangerous drugs and one count of criminal possession of dangerous drugs. Each of the four alleged offenses i s a felony under Mon- t a n a ' s Dangerous Drug Act, sections 54-132, 54-133, R.C.M. 1947; and each was alleged t o have been committed on t h a t part of the Flathead Indian Reservation lying within Missoula County. On July 12, 1971, McDonald f i l e d a motion t o dismiss the criminal action against him on the ground t h a t the s t a t e courts of Montana do not have jurisdiction. Following hearing thereon, the d i s t r i c t court of Missoula County denied defendant's motion t o dismiss. On March 21, 1972 McDonald applied t o t h i s Court f o r an appropriate extraordinary w r i t t o review the d i s t r i c t c o u r t ' s ruling. This court s e t the matter f o r adversary hearing on April 10, 1972 and invited briefs and oral argument from the United States d i s t r i c t a t t o r ney, the area d i r e c t o r of the Bureau of Indian A f f a i r s , the superintendent of the Flathead Indian Reservation, as we1 1 as counsel f o r t h e respective parties. Subsequently leave was granted t o f i l e b r i e f s and p a r t i c i p a t e in oral argument as amicus curiae t o Mr. Barney Reagan, d i r e c t o r of Montana Legal Services, and t o Mr. David J . Patterson, Montana Defender Project. Briefs were f i l e d and oral argument heard from Edward A. Cummings, attorney for McDonald; M. Gene McLatchy, deputy county attorney of Missoula County; David J . Patterson, amicus curiae; and Barney Reagan, amicus curiae. Addi- tionally David Gliko appeared for the Montana attorney general, and documentary material was f i l e d by James A. Canan, area director of the United States Bureau of Indian Affairs. Following hearing, the matter was taken under advisement by the Court. The ultimate question before the Court in t h i s proceeding i s whether the s t a t e d i s t r i c t court has jurisdiction of a criminal case charging a Flathead Indian with alleged crimes committed on the Flathead Indian Reservation. T o issues underlie t h i s ultimate question: w (1) Did Montana acquire jurisdiction over such criminal proceedings pursuant t o legislative enactments by the United States Congress and the Montana 1 egislature? (2) Did the Flathead Tribal Council subsequently revoke t h e i r consent to s t a t e jurisdiction? The historical background to these legal issues i s necessary as a preface to t h e i r determination. In 1889 when Montana was admitted to s t a t e - hood, the Montana Constitution contained, among other things, two provisions pertinent to the present controversy. Ordinance I , Sec. 2 provided t h a t a l l Indian lands "shall remain under the absolute jurisdiction and control of the congress of the United States". Ordinance I , Sec. 6 provided "That the ordinances in t h i s a r t i c l e shall be irrevocable without the consent of the United States and the people of the s t a t e of Montana." In 1953 the Congress of the United States enacted Public Law 280 (Act of August 15, 1953, 67 S t a t . 588, 590, 18 U.S.C., § 1162, 28 U.S.C., g 1360). Among other things, Public Law 280 provided a procedure whereby the s t a t e of Montana could acquire criminal jurisdiction over offenses committed by or against Indians on Indian Reservations within Montana. The consent of the United States to the assumption of such jurisdiction was granted by Sec. 6 of Public Law 280, providing in pertinent p a r t : "Notwithstanding the provision of any Enabling Act f o r the admission of a S t a t e , the consent of the United S t a t e s i s hereby given t o the people of any S t a t e t o amend, where necessary, t h e i r S t a t e Cons t i t u t i o n o r existing s t a t u t e s , a s the case may be, t o remove any legal impediment t o the assumption of * * * criminal j u r i s d i c t i o n in accordance with the provisions of this Act * * *." Additionally, Sec. 7 of Public Law 280 provides i n pertinent part: "The consent of the United S t a t e s i s hereby given, t o any other S t a t e not having j u r i s d i c t i o n with respect t o criminal offenses * * *, a s provided f o r i n this Act, t o assume j u r i s d i c t i o n a t such time and i n such manner as the people of the S t a t e s h a l l , by affirmative l e g i s l a t i v e action, obligate and bind the S t a t e t o assumption thereof." In 1963 the Montana l e g i s l a t u r e enacted Chapter 81, 1963 Session Laws (now codified as sections 83-801 through 83-806, R.C.M. 1947) r e l a t i n g t o criminal offenses by Indians on the Flathead Indian Reservation. This l e g i s l a t i o n i n substance obligates and binds the s t a t e of Montana t o criminal j u r i s d i c t i o n over Indians on t h a t portion of Indian country within the boundaries of the Flathead Indian Reservation i n accordance with Public Law 280; describes the manner in which the s t a t e may assume criminal j u r i s d i c t i o n ; provides f o r t h e assumption of such j u r i s d i c t i o n 60 days following the governor's proclamation; and permits the Indian Tribe t o withdraw i t s consent to such j u r i s d i c t i o n within two years of the date of issuance of t h e governor ' s procl amati on. Tribal consent t o the assumption of criminal j u r i s d i c t i o n by t h e s t a t e courts of Montana over Indians committing crimes on t h e Flathead Indian Reservation was granted by the enactment of Tribal Ordinance 40-A, dated May 16, 1964. The governor of Montana t h e r e a f t e r issued the required procl ama- t i o n on June 30, 1964. Almost a year l a t e r on May 5, 1965 Tribal Ordinance 40-A (Revised) was enacted. This Ordinance was s i m i l a r t o the original Ordinance 40-A except f o r c l a r i f y i n g language limiting i t s scope t o criminal laws and repealing the original Ordinance 40-A. The governor of Montana t h e r e a f t e r issued another proclamation accordingly dated October 8 , 1965. Several months l a t e r on June 22, 1966, Tribal Resolution 1973 was enacted expressly rescinding Tribal Ordinances 40-A and 40-A (Revised). There i s no evidence t h a t t h i s Tribal Resolution was ever transmitted t o o r received by the governor of Montana; nor was any proclamation of the governor made in connection w i t h t h i s Resolution. On June 30, 1966 Tribal Resolution 1997 was enacted which expressly rescinded Tribal Resolution 1973 enacted eight days previously. Again no governor's proclamation was issued concerning Tribal Resolution 1997. On September 15, 1967 Tribal Resolution 2318 was enacted request- ing the governor of Montana t o extend the time l i m i t f o r withdrawal from s t a t e jurisdiction f o r an additional year a f t e r October 7, 1967, and withdrawing i t s consent t o such s t a t e j u r i s d i c t i o n . I t f u r t h e r provided t h a t t h i s Tribal Resolution was null and void i f the governor extended such time l i m i t as requested. On October 8 , 1967 the governor issued a t h i r d proclamation extending the time l i m i t f o r the Tribe's withdrawal of t h e i r consent t o s t a t e j u r i s d i c t i o n f o r an additional year from October 7, 1967. Finally, on April 30, 1971, the Tribal Council passed a motion " t o seek retrocession on S t a t e Concurrent J u r i s d i c t i o n " . The record discloses no f u r t h e r action in conformity with t h i s motion. Additionally, we take judicial notice t h a t the s t a t e of Montana has exercised criminal j u r i s d i c t i o n over Indians charged w i t h committing crimes on the Flathead Indian Reservation f o r several years p r i o r t o the i n s t a n t case. An unknown number of Indians have been t r i e d , convicted, sentenced, imprisoned and fined f o r a variety of felonies and misdemeanors by s t a t e d i s t r i c t courts and j u s t i c e courts. The foregoing s t a t e of a f f a i r s existed a t the time r e l a t o r McDonald was arrested and charged with four counts of violation of Montana's Dangerous Drug Act, a l l of which offenses were allegedly committed on the Flathead Indian Reservation. Directing our a t t e n t i o n t o the f i r s t issue f o r review, r e l a t o r contends t h a t the s t a t e of Montana has never l e g a l l y acquired j u r i s d i c t i o n over criminal offenses committed by Indians on the Flathead Indian Reservation pursuant to United States Public Law 280. Relator argues that the provisions of Ordinance I , Sec. 2 of the Montana Constitution that a l l Indian lands "shall remain under the absolute jurisdiction and control of the congress of the United States" bars s t a t e criminal jurisdiction over crimes committed by Indians thereon until such time as t h i s bar i s removed by repeal or amendment of the Montana Constitution. According to r e l a t o r , a constitutional amendment by popular vote i s necessary under Public Law 280 requiring appropriate constitutional or statutory amendment by "the people of the State" ; under Montana Constitution, Ordinance I , Sec. 6, requiring "the consent of *** the people of the said s t a t e of Montana" t o amendment of Ordinance I , Sec. 2, providing that a l l Indian lands "shall remain under the absolute jurisdiction and control of the congress of the United States"; under Montana Constitution, Art. 111, Sec. 2 , providing that "The people of the s t a t e have the sole and exc1usiv.e right a l t e r and abolish t h e i r constitution ** *** to *";and under Montana Constitution, Art. XIX, Sec. 9 , requiring submission of constitutional amendments "to the qualified electors of the s t a t e f o r t h e i r approval or rejection" a t an election following approval by 213 of each house of the 1 egislature. The foregoing contention i s premised on the proposition t h a t a constitutional amendment i s required, and accordingly the "consent of the people of the s t a t e of Montana" cannot be granted by l e g i s l a t i v e enactment. B u t i s a constitutional amendment required? Ordinance I , Sec. 2 of the Montana Constitution simply provides that a l l Indian lands "shall remain under the absolute jurisdiction and control of the congress of the United States". This requirement was imposed by the United States upon the people of Montana as a precondition of statehood. Over 60 years l a t e r the United States Congress, in the exercise of i t s absol u t e jurisdiction and control over Indian lands, enacted Public Law 280 granting the s t a t e of Montana criminal jurisdiction over offenses committed by Indians on Indian ~ s e r v a t i o n supon amendment of i t s constitution o r s t a t u t e s , where necessary, t o remove any legal impediment. Congress could a t any time repeal Public Law 280 and terminate any j u r i s d i c t i o n of the s t a t e courts of Montana over crimes committed by Indians on Indian k s e r vations. Thus Indian lands "remain under the absolute j u r i s d i c t i o n and control of the congress of the United S t a t e s " within the meaning of Montana Constitution, Ordinance I , Sec. 2. Accordingly, no constitutional amend- ment i s necessary o r required. The necessity of amending a s t a t e constitution t o remove any legal impediment t o assumption of criminal j u r i s d i c t i o n i n accordance with Public Law 280 i s s o l e l y a matter of s t a t e law, and federal courts a r e bound by the s t a t e supreme court determination thereof. Quinault Tribe of Indians v . Gallagher, 368 F.2d 648, (CCA, 1966) Cert. den. 387 U.S. 907. The underlying concernt of Congress in enacting Pub1 i c Law 280 was not the manner in which the impediments a r e removed, b u t t h a t such impediments be removed i n a valid and binding manner under s t a t e law. Quinault, supra. constitution i s not required under Public Law 280. Amendment of the s t a t e Quinault, supra. The s t a t e of Washington, under l i k e constitutional provisions as Montana's, has held t h a t the "consent of t h e people" necessary t o revoke Washington's constitutional requirement t h a t Indian 1ands "shall remain under the absolute j u r i s d i c t i o n and control of the Congress of the United S t a t e s " may be accomplished by l e g i s l a t i v e enactment and does not require a vote of the people on a constitutional amendment. S t a t e v . Paul, 53 Wash.2d 789, 337 P.2d 33 (1959); Makah Indian Tribe v. S t a t e , 76 Wash.2d 485, 457 P.2d 590 (1969). While we recognize we a r e not bound by t h i s determination and t h a t "consent of the people" does not necessarily mean t h e same t h i n g in Washington's cons t i t u t i o n as i t does i n Montana's c o n s t i t u t i o n , the reasoning in Paul and Makah i s nonetheless persuasive. The constitutional provisions and case a u t h o r i t i e s c i t e d i n the brief of ami'cus curiae t o the contrary a r e not controlling where, as here, w have held no constitutional amendment necessary. e Montana Constitution, Art. 111, Sec. 2; Art. XIX, Sec. 9, Art. 111, Sec. 1 ; Jones v. Land Commissioners, 128 Mont. 462, 279 P.2d 393. S t i l l remaining i s a s t a t u t e orig- inally enacted in 1895 which was reenacted and i s now codified as section 83-301, R.C.M. 1947, providing that the people, as a political body, con- s i s t s of electors and citizens not electors. Fron t h i s and miscellaneous constitutional provisions (Art. 111; Art. V , Sec. 1; Art. VIII, Sec. 2 ) and cited cases (Pioneer Motors, Inc. v. ~ i c j h R k k . , 118 Mont. 333, 165 P.2d 796; Thomas v. Bd. of Examiners, 122 Mont. 564, 207 P.2d 553; Cottingham v . State Bd. of Exam., 134 Mont. 1 , 328 P.2d 907), i t i s argued that the s t a t e legislature i s not the "people" whose consent i s required to revoke Montana Constitution, Ordinance I , Sec. 2 . W cannot concur in t h i s contention. e In the f i r s t place, the con- sent of the people required f o r a constitutional amendment i s not required under Montana Constitution, Ordinance I , Sec. 6 because a constitutional amendment i s unnecessary. Secondly, the consent of the people of the s t a t e required by Pub1 i c Law 280 does not require a constitutional amendment b u t simply requires removal of any impediment to s t a t e jurisdiction in some way that i s valid and binding under s t a t e law. Quinault, supra. Finally, i f the people as a pol i t i c a l body consist of both (1 ) electors and ( 2 ) citizens who are not electors, how can the l a t t e r give t h e i r consent except through the representatives and senators from the d i s t r i c t in which they reside in the s t a t e legislature? Accordingly w hold t h a t Ch. 81, 1963 Session Laws, e i s a valid and binding consent of the people of Montana to criminal jurisdiction by s t a t e courts over Indians committing criminal offenses on the Flathead Indian Reservation pursuant to Public Law 280. W further hold t h a t e such s t a t e court criminal jurisdiction attached 60 days a f t e r the governor's proclamation, dated My 16, 1964, pursuant to Ch. 81, 1963 Session Laws. a Proceeding to the second issue, relator contends t h a t the Flathead Tribal Counci 1 revoked t h e i r consent to such s t a t e criminal jurisdiction by Tribal Resolution 1973, dated June 22, 1966, o r Tribal Resolution 2318, dated September 15, 1967. The privilege of withdrawal of such consent i s not required under Pub1 i c Law 280, b u t was gratuitously extended t o the Flathead Tribe by the provisions of Ch. 81, 1963 Session Laws of the Montana l e g i s l a t u r e . I t i s exclusively governed by the provisions of such legislation, now codi f i e d as section 83-806, R.C.M. 1947, authorizing withdrawal of consent by the Tribe within two years a f t e r the s t a t e assumed j u r i s d i c t i o n . Tribal Resolution 1973 of June 22, 1966 was i n e f f e c t i v e and did not c o n s t i t u t e a valid withdrawal of such consent. This Tribal Resolution was never transmitted t o the governor nor was any gubernatorial proclamation ever issued concerning t h i s Tribal Resolution. The superintendent of the Flathead Indian Reservation refused t o approve i t . The Tribal Council For those rescinded t h i s Tribal Resolution eight days a f t e r i t s enactment. reasons we hold t h a t t h i s Tribal Resolution did not c o n s t i t u t e a valid withdrawal of Tribal consent. Tribal Resolution 2318 on September 15, 1967 was 1i kewise ineffect i v e t o withdraw Tribal consent under section 83-806, R.C.M. 1947. enacted more than two years a f t e r the s t a t e assumed j u r i s d i c t i o n . I t was The gover- nor had no power or authority t o extend the time 1imi t f o r withdrawal of Tribal consent f o r an additional year under section 83-806, R.C.M. otherwise. 1947 or On September 15, 1967 s t a t e j u r i s d i c t i o n had been in e f f e c t f o r more than two years. For the foregoing reasons we hold t h a t the Flathead Tribal Council did not validly withdraw t h e i r consent t o s t a t e criminal j u r i s d i c t i o n over Indians committing offenses on the Flathead Indian Reservation. County. Accordingly, we hold t h a t the d i s t r i c t court of Missoula/has j u r i s diction over criminal cause #3817 wherein Thomas E. McDonald i s charged with four counts of violation of Montana's Dangerous Drug Act. This cause i s remanded t o the d i s t r i c t court of Missoula County f o r f u r t h e r proceedings therein. -8- Associate Justice

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