Jurisdictional Statement — John v. Mississippi

IN THE

Supreme Court of the United States

OcToBER TERM, 1977

No. 77497 97 = 575 ‘

SMITH JOHN and Harry Situ JOHN,

A ppellants,

Vv.

STATE OF MISSISSIPPI,

Appellee.

On Appeal From the

Supreme Court of Mississippi

JURISDICTIONAL STATEMENT

RicHarp B. Cours

Native AMERICAN RiIGHTs FuNpb

1506 Broadway

Boulder, Colorado 80302

Telephone : 303/447-8760

Epwin R. SMITH

Box 467

Philadelphia, Mississippi 39350

Telephone : 601/565-5251

Counsel for Appellants

October 1977

CONTENTS

I ce ee a oe 2

Grounps oN Wuicnh THE CouRT’s JURISDICTION IS

CN ee oe ude ee aon éuudewabaeesees 2

SURI DUD onc c cei cctecccecscescccccenss 3

SO i RY ere ror rerrT ft er 4

BD, PE ED crnrdcccéccdcdoccccseced 4

B. The Related Federal Prosecution ........... 5

C. Background of the Choctaw Indian Reservation 6

THF Questions TIN 0 okt ccavnctsvccouce 8

A. Basis of the Decision Below and Related Cases 8

B. The Court Below Ignored the Most Relevant

re 6. sa ceeeenhibade’s 9

C. Re-Establishment of Indian Country Is Not

Precluded by the Treaty of Dancing Rabbit

DIR subd babbailuntabasenis ened eaoetes 10

D. Citizenship of the Indians Is Irrelevant ...... 10

1. Tribal Status Ie Irrelevant ..............0.:. 11

F’. The Interpretation of the Indian Reorganiza-

tion Act by the Court Below Is Erroneous, and

There Is a Conflict between Federal Circuit

GUNES GE TIGER: ooo. cccccsecasssecscecsss 12

G. The Arsenals and Dockyards Clause Is In-

GE civic cnccectesceccececscovesesvens 12

H. Federal Jurisdiction Is Exclusive .......... 13

I. The Issues Are Important .................. 13

SD 65 i cn ce die bndeessuseedieessddeaweans 14

i ied eetdeskevessbachsousanses la

i , BI i. o.n0 60s 66n6s0sccnccessces la

BD, Ges BD ccc cccsccccccccccccscesseses 3a

il AUTHORITIES

Casks:

Page

Antoine v. Washington, 420 U.S. 194 (1975) ........ 10, 12

Apapas v. United States, 233 U.S. 587 (1914) ...... 11

Baker v. Carr, 369 U.S. 186 (1962) ................. 11

Creek County v. Seber, 318 U.S. 705 (1943) ........ 11

DeCoteau v. District County Court, 420 U.S. 425

EE 416, b0el bag bide ciah tel Ra edee ed oenee ns 13

Donnelly v. United States, 228 U.S. 243 (1913) ...... 10

Kennerly v. District Court, 400 U.S. 423 (1971) ..... 13

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ........ 10

Maynor v. Morton, 510 F.2d 1254 (D.C.Cir. 1975) .... 12

McClanahan v. Arizona Tax Com’n, 411 U.S. 164

PE Shs idodibid ots becdediawedehand Cnavenes 3, 11

Moe v. Confederated Salish & Kootenai Tribes, 425

ae le ened) eke nm edebnes 12

Seymour v. Superintendent, 368 U.S. 351 (1962) ..... 13

Tiger v. Western Investment Co., 221 U.S. 286 (1911) 11

Tonasket v. Washington, 411 U.S. 451 (1973) ........ :

Tubby v. State, 327 So.2d 272 (Miss. 1976) ...9, 10,12, 13

United States v. Celestine, 215 U.S. 278 (1909) ...... 11

United States v. Holliday, 70 U.S. (3 Wall) 407 (1865) 11

United States v. Kagama, 118 U.S. 375 (1886) ........ 13

United States v. McGowan, 302 U.S. 535 (1938) 9, 10. 11, 12

United States v. MeGowan, 89 F.2d 201 (9th Cir.

1937), affirmed, 302 U.S. 535 (19388) ............. 12

United States v. Mississippi Tax Com’n, 505 F.2d 633

(5th Cir. 1974), rehearing denied, 535 F.2d 300

(Oth Cir. 1976), rehearing en banc denied, 541

F.2d 468 (Sth Cir. 1976) ..............-: 9, 10, 12, 13

United States v. Pelican, 232 U.S. 442 (1914) ........ 11

United States v. Ramsey, 271 U.S. 467 (1926) ....... 11

United States v. Sandoval, 231 U.S. 28 (1913) ....... 10

Warren Trading Post Co. v. Arizona Tax Com’n, 380

I TE re eee 3

Williams v. Lee, 358 U.S. 217 (1959) ............... 2

Constitution, TREATIES AND STaTUTEs:

Rs ang lacascducne 4,12

SN ERE TPA en ee a nee 4, 6, 10

TE EEE ee DE 7

41 Stat. 15 (1919)

cs cuneus 7

“Table of Authorities Continued iii

Page

41 Stat. 1236 (1921) ....... cece e cere eee ee eeeececes 7

42 Stat. 570 (1922) .......e eee eeeeeeee reece ererees 7

late ee ED UUNOED ., icdatccsecevdcrgvenccsevses 7

ihe MN TER 6 ois piclecpensdnenscotedesves 7

ie ol enineaecacaddastvnasase¥ind 7

i I . Lidigavipaanevesvenstecceey 7

45 Stat. 206 (1928) ...... donenghhdesncncondennendn 7

Me ee TE MII onc oicctvceccnsseceesesess 7

46 Stat. 286 (1930) ......- cece eee ee eee eee erereeees 7

Sid EE cn nciniesnnsecsecsvcsudenss 7

eee a cenvenesxensnsy 3, 7, 8, 10, 12

67 Stat. 589 (1953), 25 U.S.C. §§ UBBL-19SS .. wc cccces 13

ei ON cdi cuddapnenevarersiesenies 5, 6

eh OE de GUONED coo cvccesicccenscovescesossoes 6

ds wipeneunnpapeceunt 4,5, 6,8, 11, 13

18 U.S.C. § 1153 ......- eee eee ee cece eereces 5, 6, 8, 11, 13

A Ns can ynsieinacnnwans 5, 8, 11, 13

25 U.S.C. §§ 461-479 2... cece eee cere eee e erences 4,7

ee es san sdehearonsns 3, 7,8, 11

25 U.S.C. $476 2... ccc cece cece cee eeeceneneesereeee 8,12

95 U.S.C. $477 once ccc ccccccccesccccceeeeersceeess 8

IG oo cidiliinecvcoovnn see youlseovecesns 3,12

Se OM EMITTED .o0ccccsccccccccccsceccceseoess 2

98 U.S.C. §1257(2) 2... cece cece eee eee eeeeeeereees 2

28 U.S.C. §1257(3) ....- cece cece eer e eee ceereeeees 2

98 U.S.C. § 2103 22... cece cece cece reer cree eeereeees 2

9B U.S.C. § 2408 ...... cece cece cece eee reeceeeeeeees 3

Miss. Code Ann. § 97-3-7(2) (Supp. 1976) ......---- 2,3

iv Table of Authorities Continued

Page |

TextBooks aNnp OTHER:

F. Cohen, Handbook of Federal Indian Law (GPO

BOG). » oss enceessenesaneee 10

L. Davis, Jurisdiction over Indian Country, 1 ‘Ariz L.

Mov. GB (0UE ... .vscceuecccace ne .. 12

H.Rept. No. 194, 76 Cong. 1st Sess. cv dleeannay eee 8

ee ee Oe ee ee mt Caer re

ee ee ee

IN THE

Supreme Court of the United States

OcToBER TERM, 1977

No. 77-

SmitH JOHN and Harry SMITH JOHN,

Appellants,

V.

STATE OF MISSISSIPPI,

Appellee.

On Appeal From the

Supreme Court of Mississippi

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the Su-

preme Court of Mississippi, entered on May 11, 1977,

rehearing denied, July 20, 1977, affirming appellants’

conviction and submit this Statement to show that the

Supreme Court of the United States has jurisdiction

of the appeal and that a substantial] question is pre-

sented.

2

OPINION BELOW

The opinion of the Supreme Court of Mississippi is

reported at 347 So.2d 959 (Miss. 1977) and is repro-

rc as an appendix to this Jurisdictional State-

ment. )

GROUNDS ON WHICH THE COURT'S

JURISDICTION IS INVOLVED

(1) The proceeding below was a criminal prosecu-

tion for aggravated assault pursuant to Miss. Code

Ann. see. 97-3-7(2).

(ii) The decision of the court below was dated and

entered on May 11, 1977. Appellants made a timely

motion for rehearing, which was denied on July 20

1977. Appellants’ notice of appeal to this Court was

filed on October 17, 1977, in the Supreme Court of

Mississippi.

(iii) Appellants believe this Court has jurisdiction

of this appeal pursuant to 28 U.S.C. ¢ 1257(2) and/or

§ 1257(1). This matter is not free from doubt, and in

the alternative, appellants pray that the Court treat

wy Jurisdictional Statement as a Petition for Writ

of Certiorari pursuant to 28 U.S.C, :

pa reennd U.S.C. § 1257(3) and 28

(iv) The following cases are believed to sustain the

jurisdiction :

— ———

' Regarding 28 U.S.C. § 1257(2), although the Indi

jurisdiction eases cited under (iv) infra nn stn ae a

as appeals, other Indian jurisdiction eases have been reviewed on

certiorari, ¢.g., Williams v. Lee, 358 U.S. 217 (1959). Regarding 28

U.S.C. § 1257(1), the rulings of the court below invalidating Acts

of Congress as applied are not entirely clear.

ee, Oe ed Nee

NN ab th ne enh at APR st ne

’

3

McClanahan v. Arizona Tax Com’n, 411 U.S. 164

(1973)

Warren Trading Post Co. v. Arizona Tax Com’n,

380 U.S. 685 (1965)

Tonasket v. Washington, 411 U.S. 451 (1973)

(v) The validity of Miss. Code Ann. sec. 97-3-7(2)

(Supp. 1976) as applied to appellants is involved. The

statute is set out in the Appendix to this Jurisdictional

Statement.

As an alternate holding, the court below apparently

held two Acts of Congress unconstitutional as applied.

One is the Indian Reorganization Act of 1934, particu-

larly 25 U.S.C. §§ 467 and 479. The other is the Act of

June 21, 1939, Pub.L. 76-147, 53 Stat. 851.’ These three

sections are set out in the Appendix to this Jurisdic-

tional Statement. Based on this ruling, appellants be-

lieve that 28 U.S.C. § 2403 may be applicable, and this

statement has therefore been served on the Solicitor

General pursuant to Rule 33.2(b).

QUESTIONS PRESENTED

Do the Mississippi State Courts Have Jurisdiction

to Try and Convict Choctaw Indians of Aggravated

Assault Committed within the Choctaw Indian Reser-

vation in Mississippi ?

—_—_- --

?The court below did not refer to this statute, but the statute

was argued to it and is obviously relevant. Under the cireumstances,

the court must necessarily have ruled on the statute implicitly,

particularly by its conclusion that a treaty ‘‘cannot be altered by

an Act of Congress.’’ 347 So.2d at 962. See part C of the Argument

infra.

4

A. Is the Choctaw Indian Reservation in Mis-

sissippi ‘Indian country,’’ as that t

in 18 U.S.C. § 1151? —

B. Is the re-establishment of Indian country in

Mississippi precluded by:

(1) The Treaty of Dancing Rabbi

Stat. 83 1890)9 eT

(2) Indian citizenship ?

(3) The Tribal Stat A eee

Chestennl4 atus of the Mississippi

(4) Unlawful Application of the Indi

organization Act, 25 U.S.C. §§ 161-470"

(5) The Arsenals and Dockyards

the Constitution, art I, $8, el. ae He

STATEMENT OF THE CASE

A. Proceedings Below.

; Appellants Smith John and Harry Smith John are

full-blooded Mississippi Choctaw Indians, residents of

the Choctaw Indian Reservation in Mississippi and

enrolled at the federal Indian Agency at Philadelphia

Mississippi. They were indicted by the Leake County,

Mississippi, Grand Jury in April 1976 on the charge

of aggravated assault in violation of Miss. Code Ann

sec. 97-3-7(2) (Supp. 1976). They filed motions to dis.

miss and supporting documents to show that the acts

giving rise to the state indictment had occurred in

Indian country as defined by 18 U.S.C. § 1151 and that

appellants had earlier been indicted, tried and con-

victed in the United States District Court for the

Southern District of Mississippi based on the same

acts. They contended that the federal court had ex-

Betead »

aplastic) Ce th LE REM ATT AAR Bas heath eae aitindeae s+ so

eae

on —"

es

4)

elusive jurisdiction over the alleged offense pursuant

to 18 U.S.C. §§ 1151-53 and 3242. They also contended

that the State prosecution was unlawful double jeop-

ardy. The motions to dismiss were denied, and appel-

lants were tried before a jury on May 7, 1976. Uncon-

tradicted trial evidence showed that appellants are

Choctaw Indians and that the acts forming the basis

‘of the criminal charge against them had occurred with-

in the boundaries of the Choctaw Indian Reservation.

Appellants were convicted of aggravated assault and

sentenced to two years in the Mississippi State Peni-

tentiary.

Appellants prosecuted an appeal to the Supreme

Court of Mississippi, which affirmed their conviction

and issued the opinion reproduced in the Appendix

to this Jurisdictional Statement. The essential basis

of that court’s opinion is that the Choctaw Indian

Reservation in Mississippi is not Indian country, so

the federal district court lacked jurisdiction to try and

convict appellants.

B. The Related Federal Prosecution.

The earlier federal indictment was returned in Oc-

tober 1975 and charged that appellants are Indians

and committed assault with intent to kill in Indian

country in violation of 18 U.S.C. §§ 113(a) and 1153.’

° In pertinent part, the federal indictment reads :

The Grand Jury charges:

That Suir Joun, an Indian, and Harry SmitH JOHN, an In-

dian, on or about August 30, 1975, in Leake County, Mississippi, in

the NE 1/4 of Section 35, Township 11 N, Range 7 E, in the Jack-

son Division of the Southern District of Mississippi on and within

the Choctaw Indian Reservation and on land within the Indian

country under the jurisdiction of the United States of America,

did then and there knowingly, willfully, unlawfully and feloniously

6

Defendants were tried before a federal trial jury on

December 7-8, 1975, based on the same acts as charged

in the state court the following year. The jury ac-

quitted appellants of assault with intent to kill but

convicted them of the lesser included offense defined

by 18 U.S.C. § 113(e). The trial action was numbered

Criminal Action No. J-75-68(c), United States Dis-

trict Court for the Southern District of Mississippi,

Jackson Division.

Appellants appealed their federal conviction to the

United States Court of Appeals for the Fifth Circuit,

which heard oral argument on October 4, 1976. No de-

cision has been made of that appeal as this is written.'

The case in that court is numbered 76-1518.

C. Background of the Choctaw Indian Reservation.

The underlying question in this ease is whether the

federal actions establishing the Choctaw Indian Reser-

vation in Mississippi were sufficient to establish Indian

country as defined by 18 U.S.C. § 1151. These actions

may be quickly summarized.

In 1830 the Choctaw Tribe entered into the Treaty

of Dancing Rabbit Creek with the United States, 7

Stat. 333 (1830). By the Treaty, the Tribe ceded all

tribal lands in Mississippi. Choctaws were given the

option of removing to Indian Territory or remaining

in Mississippi. Article XIV of the Treaty provided to

assault with intent to kill the person of Artis Jenkins, in violation

of Sections 1153 and 113(a), Title 18, United States Code.

* Just as this Statement was being sent to the printers, counsel

was informed by telephone that the Fiitn Cireuit decided this ap-

peal on October 11, 1977, and ruled against federal jurisdiction.

Counsel has not yet seen the opinion.

ew Cer fo ae es

Magen g)! is tthe Pa hae 2 ARAL RA AA eS Sit Se LI A GOR PE Be A

7

each Choctaw family remaining in Mississippi a ‘‘res-

ervation” of one section of land. The Mississippi Choc-

taws were made U.S. citizens but also retained Choc-

taw citizenship. After five years, all federal restric-

tions were to be removed from such lands. Many Choc-

taws remained in Mississippi.

In 1918, after a report on the deplorable condition

of the Mississippi Choctaws, Congress authorized

land acquisition for them at the urging of Senator

Vardaman and other Mississippi congressmen.’ An

Indian agency of the Bureau of Indian Affairs was

established at Philadelphia, Mississippi, and land pur-

chases were made from congressional appropriations

over the next several years.’

In 1934 Congress enacted the Indian Reorganization

Act (IRA), intended to revitalize the tribes. 25 U.S.C.

§§ 461-479. 25 U.S.C. § 467 authorizes the Secretary of

the Interior to “proclaim new Indian reservations.

Purchases were resumed for the Mississippi Choctaws,

now made under authority of the IRA. H.Rept. No.

194, 76 Cong., 1st Sess. The Interior Department then

proposed and Congress enacted the Act of June 21,

1939, Pub.L. 76-147, 53 Stat. 851 (quoted in the Ap-

pendix), which declared that all of the land purchased

for the Choctaws in Mississippi since 1918 is held in

trust by the United States for the Mississippi Choc-

taws. An express purpose of the Act was to allow the

» Peterson, the Mississippi Band of Choctaw Indians, doctoral dis-

sertation, Miss. St. U. Library, page 109.

640 Stat. 573 (1918); 41 Stat. 15 (1919) ; 41 Stat. 420 (1920) ;

41 Stat. 1236 (1921) ; 42 Stat. 570 (1922) ; 42 Stat. 1191 (1923) ; 43

; . 45

Stat. 1149 (1925); 44 Stat. 461 (1926) ; 44 Stat. 941 (1927) ;

Stat. 206 (1928) ; 45 Stat. 1568-69 (1929) ; 46 Stat. 286 (1930) ;

46 Stat. 1121 (1931).

8

Mississippi Choctaws to organize a tribal government

under Sections 16 and 17 of the IRA, 25 U.S.C. §§ 476

and 477. H.Rept. 194, 76th Cong., Ist Sess., page 3.

On December 4, 1944, acting pursuant to 25 U.S.C.

$467 and the 1939 Act just described, the Secretary

of the Interior issued a proclamation reciting these

land aequisitions and providing that ‘‘such lands are

hereby declared to be an Indian reservation’’ for the

enrolled members of the Mississippi Band of Choctaw

lidians of one-half or more Indian blood. 9 Fed. Reg.

14907 (1944). On May 22, 1945, the Secretary recog-

nized the Mississippi Band of Choctaw Indians as a

self-governing tribe pursuant to Section 16 of the

IRA, 25 U.S.C. § 476.

THE QUESTIONS ARE SUBSTANTIAL

A. Basis of the Decision Below and Related Cases.

As recited above, Congress in 1939 declared that the

Choctaw Reservation lands in Mississippi are held

in trust for the Choectaws by the United States, and

the Secretary of the Interior in 1944 proclaimed the

lands to be an Indian Reservation pursuant to his

authority under the TRA, 25 U.S.C. § 467, and under

the 1939 special Choctaw statute, 53 Stat. 851, supra.

Appellants contend that either or both of these acts

established these lands as Indian country pursuant to

18 U.S.C. § 1151, which includes all federal Indian

reservations and all dependent Indian communities.

Appellants further contend that federal court crimi-

nal jurisdiction over Indian country pursuant to 18

U.S.C. §§ 1151-1153 and 3242 is exclusive of state

eourt jurisdiction."

? See cases cited under section H, below.

9

The court below did not rule on the latter point and

based its decision essentially on its conclusion that the

Choctaw Reservation is not Indian country. The court

relied on a number of alternative theories to support

this conclusion, some of which are stated in its opinion

in this case, and some of which are made by reference

to a prior opinion of the same court in Tubby v. State,

327 So.2d 272 (Miss. 1976).* The court also relied on

the opinions of the Fifth Cireuit Court of Appeals in

United States v. Mississippi Tax Com’n, 505 F.2d 633

(5th Cir. 1974), rehearing denied, 535 F.2d 300 (Sth

Cir. 1976), rehearing en banc denied, 541 F.2d 469

(5th Cir. 1976), although Indian country status was

not directly at issue in that case.’ A,pellants here con-

tend that each alternative basis for the ruling that the

Choctaw Reservation is not Indian country conflicts

with prior governing decisions of this Court or with

decisions of other federal courts of appeals.

B. The Court Below Ignored the Most Relevant Decisions of

This Court.

On at least two prior occasions, this Court has ad-

dressed the question whether Indian country may law-

fully be established or re-established in a state after

statehood. In both cases the Court sustained the power.

United States v. McGowan, 302 U.S. 535 (1938);

®The Tubby opinion regarding the Choctaws was technically

dictum, because the court reversed Mr. Tubby’s conviction on other

grounds.

* The court ruled that the entity being taxed was a state corpora-

tion rather than the Tribe or an Indian, and this was the first basis

for the Fifth Circuit’s decision. 505 F.2d at 638. The court’s second

ground was that jurisdiction was precluded by 28 U.S.C. § 1341, /d.

The discussion of tribal status was thus either an alternate holding

or, more properly, obiter dictum.

10

Donnelly v. United States, 228 U.S. 243 (1913). These

cases were argued to the court below in this case and

in Tubby v. State, supra, but the court failed to ad-

dress them.” The McGowan decision indicates that far

less federal action than is found here is sufficient to

establish Indian country. See also, United States v.

Sandoval, 231 U.S. 28, 48 (1913); F. Cohen, Hanid-

book of Federal Indian Law (GPO 1942) pages 7, 359.

More recently the Court in Antome v. Washington,

420 U.S. 194 (1975), held that Indian hunting rights

dependent on post-statehood federal action are valid

despite the lack of state consent. 420 U.S. at 200-05.

C. Re-Establishment of Indian Country Is Not Precluded by the

Treaty of Dancing Rabbit Creek.

The court below ruled that the Treaty of Dancing

Rabbit Creek (7 Stat. 333) ‘‘cannot be aitered by an

Act of Congress; ...’’ 347 So.2d at 962." This is plainly

contrary to many decisions of this Court, e.g., Lone

Wolf v. Hitchcock, 187 U.S. 553 (1903). Furthermore,

there is no language in the Treaty that conflicts with

the 1944 [RA proclamation or with the 1939 Act of

Congress taking lands in trust for the Choctaws.

D. Citizenship of the I:udians Is Irrelevant.

The court below lays particular stress on the fact

that the Mississippi Choctaws are citizens. Tlowever,

this Court has repeatedly ruled that citizenship is not

inconsistent with federal guardianship and Indian

‘The eases were also cited and argued to the Fifth Cireuit in

United States v. Mississippi Tax Com’>, supra. That court also

ignored these cases.

" The Fifth Cireuit said this too. 535 F.2d at 302.

11

country jurisdiction. McClanahan v. Arizona Tar

Com’n, 411 U.S. 164, 172-73 (1973); Creek County Vv.

Seber, 318 U.S. 705, 718 (1943); Tiger v. Western In-

vestment Co., 221 U.S. 286, 310-13 (1911); United

States v. Celestine, 215 U.S. 278 (1909). The precise

point of the court below was rejected in Apapas Vv.

United States, 233 U.S. 587 (1914). This case was cited

to the court below but ignored by it.

E. Tribal Status Is Irrelevant.

The court below also ruled that the Mississippi Choc-

taws are not lawfully an Indian tribe and that this

precludes federal authority. This was clear error for

two reasons. First, Indian country jurisdiction pur-

suant to 18 U.S.C. §§ 1151-53 and 3242 does not de-

pend on whether there is a separate tribal entity, as

this Court has implicitly recognized in a number of

eases, e.g., United States v. Pelican, 232 U.S. 442

(1914) ; United States v. Ramsey, 271 U.S. 467 (1926) ;

United States v. McGowan, supra. The statutes re-

quire only that the accused be an Indian, and the place

of the offense charged be Indian country.

Second, this Court has held that when tribal recog-

nition is relevant, it is normally a political question

committed to Congress and the Executive Branch and

not subject to judicial review. United States v. Holli-

day, 70 U.S. (3 Wall.) 407 (1865) ; Cf., Baker v. Carr,

369 U.S. 186, 282 (1962). Here the Executive Branch

has recognized the Mississippi Choctaws as a tribe en-

titled to self-government under the IRA Section 16,

25 U.S.C. § 476.

12

F. The Interpretation of the Indian Reorganization Aci by the

Court Below Is Erroneous, and There Is a Conflict between

Federal Circuit Courts of Appeals.

The court below ruled that the Secretary of the In-

terior lacked authority to proclaim the Choctaw lands

to be an Indian reservation pursuant to Section 7 of

the IRA, 25 U.S.C. § 467, because that Act does not

apply to the Mississippi Choctaws. Appellants con-

tend that this interpretation is at odds with the plain

language of the Act, particularly 25 U.S.C. § 479 de-

fining Indians, and it fails to take into account the

special Choctaw statute of 1939, 53 Stat. 851, supra.

The Fifth Cireuit arrived at the same conclusion.

939 F.2d at 304-06. This position is in direct conflict

with the decision of the District of Columbia Circuit

in Maynor v. Morton, 510 F.2d 1254 (D.C. Cir. 1975).

G. The Arsenals and Dockyards Clause Is Inapplicable.

In its earlier decision in Tubby v. State, supra, the

eourt below ruled that federal authority is precluded

by the lack of state consent under the Arsenals and

Dovkvards Clause, U.S. Const. art. I, § 8, el. 17. 327

So.2d at 281-84. However, this Court has repeatedly

ruled that federal authority over Indian affairs does

not derive from that clause. £.g., Moe v. Confederated

Salish & Kootenai Tribes, 425 U.S. 463, 481 n.17

(1976). In United States v. McGowan, 89 F.2d 201, 202

(9th Cir. 1937), the Ninth Cireuit ruled that federal

Liudian jurisdiction was precluded by the Arsenals and

Dockyards Clause, but this Court unanimously re-

versed, United States v. McGowan, 302 U.S. 535 (1938).

See also, Antoine v. Washingtor, supra, 420 U.S. at

200-05; L. Davis, Jurisdiction over Indiam Country, I

Ariz.L. Rey. 62, 65 (1959).

+ ee Cee . eee ~

13

H. Federal Jurisdiction Is Exclusive.

This Court has repeatedly ruled that absent consent

of Congress, the federal criminal jurisdiction in In-

dian country exercised pursuant to 18 U.S.C. §§ 1151-

53 and 3242 is exclusive of state jurisdiction. Seymour

v. Superintendent, 368 U.S. 351 (1962) ; United States

v. Kayama, 118 U.S. 375 (1886) ; see, DeCoteau v. Dis-

trict County Court, 420 U.S. 425, 427 n.2 (1975). There

is no applicable consent here. Mississippi has not com-

plied with Public Law 280, 67 Stat. 589 (1953), as

amended, 25 U.S.C. §§ 1321-1326. Cf., Kennerly v. Dis-

trict Court, 400 U.S. 423 (1971).

I. The Issues Are Important.

The decisions of the court below in this case and in

Tubby vy. State, supra, and the Fifth Cireuit’s alter-

nate holdings and/or dieta in United States v. Missis-

sippi Tax Com’n, supra, have generated great confu-

sion in the administration of Choctaw Indian affairs.

The prolonged double prosecution in this case is only

one of numerous problems. Choctaw Indians have been

prosecuted in the past by the federal government and

are ineareerated in federal institutions; numerous fed-

eral convictions are drawn into question. The status of

an Indian reservation established by Congress and

of an Indian band recognized by the United States has

been clouded by judicial fiat. Grave uncertainty over

federal benefits now provided the Mississippi Choc-

taws has arisen.

Furthermore these decisions involve legal principles

that frequently arise in the administration of Indian

affairs nationally, such as the interpretation of Indian

Reorganization Act and alleged limitations on federal

authority.

14

CONCLUSION

The decision of the court below is plainly in con-

ict with numerous decisions of this Court, and it

should be reversed.

Respectfully submitted,

RicHarp B. CoLLins

NATIVE AMERICAN RiGHTs FUND

1506 Broadway

Boulder, Colorado 80302

Telephone: 303/447-8760

Epwin R. SMITH

Box 467

Philadelphia, Mississippi 39350

Telephone: 691/565-5251

Counsel for Appellants

October 1977

APPENDIX

A. Statutes Involved

Mississippi Code Annotated (Supp. 1976)

§ 97-3-7. Simple assault—aggravated assault.

(2) A person is guilty of aggravated assault if he (a)

attempts to cause serious bodily injury te another, or causes

such injury purposely, knowingly or recklessly under cir-

cumstances manifesting extreme indifference to the value

of human life; or (b) attempts to cause or purposely or

knowingly causes bodily injury to another with a deadly

weapon or other means likely to produce death or serious

hodily harm; and, upon conviction, he shall be punished by

imprisonment in the county jail for not more than one (1)

year or in the penitentiary for not more than twenty (20)

years. Provided, however, a person convicted of aggravated

assault upon a law enforcement officer or fireman while such

law enforcement officer or fireman is acting within the scope

of his duty and office shall be punished by a fine of not more

than five thousand dollars ($5,000.00) or by imprisonment

for not more than thirty (30) years, or both.

Act of June 21, 1939, Public Law 76-147, 53 Stat. 851

[CHAPTER 235]

AN ACT

To define the status of certain lands purchased for the

Choctaw Indians, Mississippi,

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled, That title to all lands purchased by the United States

for the benefit of the Choctaw Indians of Mississippi, under

authority contained in the Act of May 25, 1918 (40 Stat.

L., 573), and similar subsequent Acts, not under contract

for resale to Choctaw Indians, or on which existing con-

Qa

tracts of resale may hereafter be canceled, is hereby de-

clared to be in the United States in trust for such Choctaw

Indians of one-half or more Indian blood, resident in Mis-

sissippi, as shall be designated by the Secretary of the

Interior.

Approved, June 21, 1939.

25 U.S.C. § 467

§ 467. New Indian reservations

The Secretary of the Interior is hereby authorized to

proclaim new Indian reservations on lands acquired pur-

suant to any authority conferred by sections 461, 462, 464,

465, 466-470, 471-473, 474, 475, 476-478, and 479 of this title or

to add such lands to existing reservations: Provided, That

lands added to existing reservations shall be designated for

the exclusive use of Indians entitled by enrollment or by

tribal membership to residence at such reservations. June

18, 1934, e. 576, § 7, 48 Stat. 986.

25 U.S.C. § 479

§ 479. Definitions

The term ‘‘Indian’’ as used in sections 461, 462, 463, 464,

465, 466-470, 471-473, 474, 475, 476-478, and 479 of this title

shall inelude all persons of Indian descent who are mem-

bers of any recognized Indian tribe now under Federal

jurisdiction, and all persons who are descendants of such

members who were, on June 1, 1934, residing within the

present boundaries of any Indian reservation, and shal!

further include all other persons of one-half or more In-

dian blood. For the purposes of said sections, Eskimos and

other aboriginal peoples of Alaska shall be considered In-

dians. The term ‘‘tribe’? wherever used in said sections

shall be construed to refer to any Indian tribe, organized

hand, pueblo, or the Indians residing on one reservation,

3a

The words ‘‘adult Indians’’ wherever used in said sections

shall be construed to refer to Indians who have attained

the age of twenty-one years. June 18, 1934, c. 576, § 19, 48

Stat. 988.

B. Opinion Below

. Smith Jonn and Harry John

v.

State of Mississippi.

No. 49682.

Supreme Court of Mississippi.

May 11, 1977.

Rehearing Denied July 20, 1977.

Edwin R. Smith, Philadelphia, for appellant.

A. F. Summer, Atty. Gen., by Catherine Walker Under-

wood, Special Asst. Atty. Gen., Jackson, for appellee.

Before Patrersoix, Succ and Waker, JJ.

Succ, Justice, for the Court:

The defendants, Smith John and Harry John, were con-

victed of aggravated assault and sentenced by the Circuit

Court of Leake County to serve two years in the peniten-

tiary."

-_——_——--— -

'The judgment of the circuit court was entered May 7, 1976 and

each defendant was given credit on the sentence for eight months

and eight days time served in jail. The crime for which defendants

were convicted occurred on August 30, 1975 and apparently they

were detained in jail from the time of their arrest following the

commission of the crime until they filed an appearance bond in con-

nection with their appeal to this Court on May 10, 1976.

4a

The primary question is one of jurisdiction between

the United States Distriet Court and the Cireuit Court of

Leake County, Mississippi. Did the United States District

Court have jurisdicton to try the defendants under the

Major Crimes Aet, 18 U.S.C.A. § 1153, or did the Leake

County Cirenit Court have jurisdiction to try the defend-

ants under Mississippi Code Annotated section 97-3-7(2)

(Supp.1976). Both courts could not have jurisdiction be-

cause the prosecution in each was based on the same acts

of the defendants,

The errors assigned are: (1) The trial court erred in

failing to sustain defendants’ motion to dismiss after their

prosecution in United States District Court resulted in a

conviction of simple assault based on the same incident

which resulted in their conviction in the Cireuit Court of

Leake County. (2) The trial court erred in denying de-

fendants’ plea of former jeopardy because they had been

convicted in United States District Court for the same act.

(3) The trial court erred in subjecting defendants to trial

following their trial in United States District Court be-

cause their trial in the state court constituted invidious

racial diserimination.

Defendants were convicted of simple assault in the

United States District Court for the Southern District of

Mississippi for violating 18 U.S.C.A. $113 and were sen-

tenced to serve ninety days and to pay a fine of $300.

Federal eustody over the defendants was obtained

through a habeas corpus ad prosequendum. Defendants’

brief states that the defendants’ misdemeanor conviction

in the United States District Court has been appealed to

the Fifth Cireuit Court of Appeals. They contend that un-

less and until the United States District Court’s convic-

tion is overturned the state has no right to proceed with

its prosecution on the indictments iu the state court.

i ee ee

as

Da

The United States District Court’s judgment of convie-

tion was entered December 15, 1975 before our decision in

Tubby v. State, 327 So.2d 272 (Miss.1976) and before the

decision of the Fifth Cireuit Court of Apneals in [ited

States of America et al. v. State Tax Commission of State

of Mississippi et al., 535 F.2d 300 (5th Cir. 1976).*

Tubby, supra, involved the conviction of a Choctaw In-

dian for arson for burning a house owned by another Choc-

taw Indian located on land purchased for the Choctaw

Indians with trust funds held by the United States. We

held in Tubby that Mississippi has criminal jurisdiction

over all crimes committed by Choctaw Indians within this

state because: (1) ‘‘Indian County’’ within Mississippi

was extinguished by land patents issued to the individual

Choctaw Indians under the terms of the Treaty of Dancing

Rabbit Creek. (2) All Choctaw Indians residing within

Mississippi have been made citizens of the state by terms

of the Treaty of Dancing Rabbit Creek, by amendment to

the Mississippi Constitution, and by Mississippi statutes.

(3) The Choctaw Indians of Mississippi do not fall within

the provisions of the Federal Indian Reorganization Act

granting certain rights of home rule to Indians because

they gave up their status as reservation Indians and be-

enme citizens of Mississippi before the enactment of the

Indian Reorganization Act, §4 1 et seq., 25 U.S.C.A. §§ 461

et seq. (4) Choctaw Indians became subject to Mississippi

law when the United States Government issued patents

to their land. (5) The courts of Mississippi have jurisdic-

tion of Choctaw Indian citizens in the same manner and to

the same extent that they have jurisdiction over other

citizens of Mississippi.

Although the decision of the Fifth Cireuit Court of Ap-

*See decision of three judge panel in United States of America

et al. v. State Tax Commission of State of Mississippi et al., 505

F.2d 633 (5th Cir, 1974).

. 7a

ba

300 (5th Cir. 1976) involved a tax question, the holding is were established either by Treaty or created by Con-

- ‘ess for those who never converted their Indian

vier Saiahenis 8 _ The Fifth teed es

enya g the issues involved in this case status te that of state cltiasnchio.

ireuit held:

After the ratification of the Treaty of Dancing Rab-

bit Creek the Choctaw Indians who chose to remain in

Mississippi were no longer an Indian Tribe, they were

citizens of Mississippi, and they most assuredly were

not wards of the United States. The only way they

could reassume Choctaw tribal citizenship was to move

to the Indian Territory,

As cited in the original opinion, a thorough discus-

sion of this situation was authored by Mr. Justice

Pitney in Winton v. Amos, 255 U.S, 373, 41 S.Ct. 342,

344. 65 L.Ed. 684 (1921). That opinion of the Supreme

Court sets forth in interesting detail the many unsuc-

cessful efforts of the Mississippi Choctaws to reas-

sume Choctaw eitizenship without moving to the

Indian Territory. See, also, Choctaw Nation v. United

States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306 (1886).

In any event, this Treaty was made by and between .

the Tribe and the United States and both were bound

hy its terms. By remaining and accepting (or claim-

ing later, as some did) the lands allotted to those who

wished to stay, the individual Indian likewise bound

himself to the provisions of the Treaty.

The Treaty of Dancing Rabbit is a part of the Su-

preme Law, United States Constitution, Article 6,

Clause 2, and it cannot be altered by an Act of Con-

gress, Congress cannot obliterate the jurisdiction of

Mississippi over its citizens.

This case simply does not fit into the extensive

jurisprudential grooves deveisped with reference to

Indian wards or those Indian Reservations which

Faas *

ws i BE es

The Choctaw Indians of Mississippi do not live in

Indian country. Except for that land patented to in-

dividual Indians under the terms of the Treaty (and

not in trust) the Tribe sold all of its land to the

United States in 1830. By 1850 virtually every acre

of it had heen patented to private purchasers by

virtue of sales at the Land Offices in Columbus and

Paulding. See DeCoteau v. District County Court for

Tenth Judicial District, 1975, 420 U.S. 425, 95 S.Ct.

1082, 43 L.Ed2d 300. See also, Dillon v. Antler Land

Company of Wyola, 9 Cir. 1974, 507 F.2d 940, cert.

denied. 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482.

We adhere to the view originally entertained that

the definition of the term ‘‘Indian’’ appearing in Sec-

tion 19 in no way altered or amended the description

of those entitled to organize under the terms of

Section 16.

We also adhere to the opinion that:

(1) The Choctaw Indians residing in Mississippi in

1954 were not members of an Indian tribe. The tribe

was in Oklahoma. The tribal status of the Mississippi

Choctaws had been permanently extinguished by the

1830 Treaty of Dancing Rabbit Creek;

(2) Granting that Section 7 of the 1934 Act au-

thorized the Secretary of the Interior to set up new

Indian reservations, we think that the clear intent of

Congress was to legislate for Indian tribes, not for

individual Indians;

(3) We see nothing in the Acts of Congress con-

ferring authority upon the Secretary of the Interior

Sa

to create Indian tribes where none had theretofore

existed. Under Section 16 only a tribe could organize

for self-government, ete. Additionally, we think the

purpose was to give the tribes some independence

from the Bureau of Indian Affairs;

(4) Nothing in the various Congressional enact-

ments indicates a desire or purpose to abrogate the

Dancing Rabbit Treaty;

(5) Nothing in the various Congressional enact-

ments indicates a desire or purpose to oust Missis-

sippi of its jurisdiction over those who had been its

citizens, so declared by Treaty, for over a hundred

vears. :

Consequently, we are of the opinion that the juris-

diction of the State of Mississippi over its citizens

of Choetaw Indian blood stands unimpaired. (535

F.2d at 302, 306).

In view of Tubby and United States v. State Tar Com-

mission, supra, we are of the opinion that the United States

District Court had no jurisdiction to proceed with the

prosecution of the defendants under 18 U.S.C.A. § 1153

(Supp.1976).

In their second assignment of error defendants argue

that they have been subjected to double jeopardy because

they were convicted in the United States District Court

under 18 U.S.C.A. § 1153 and under Mississippi Code An-

notated section 97-3-7(2) (Supp.1976) for the same act.

The argument is without merit because former jeopardy

does not exist unless the previous trial was before a court

of competent jurisdiction. It has long been settled in this

state that a party who has been tried and convicted by a

court not having jurisdiction of the offense cannot plead

former jeopardy if subsequently indicted for the same

offense in a court having jurisdiction thereof. Montross v.

9a

State, 61 Miss. 429 (1883). We do not find any case in

which the United States Supreme Court has addressed this

question and none was cited in the briefs. However, the

federal courts in the various circuits adhere to the rule ex-

pressed in Montross, supra, See cases annotated in West

Federal Practice Digest, Criminal Law, Key 167. In 22

C.J.S. Criminal Law § 244 at 643-644 (1961) the general

rule is stated as follows:

Former jeopardy does not exist unless the previous

trial was before a court of competent jurisdiction, and

a judgment void for lack of jurisdiction is not a bar

to a subsequent prosecution for the same offense. The

court in which the prior acquittal or conviction was

obtained must have been one having jurisdiction of

the offense charged and also of accused, obtained by

due process based on legal proceedings. However, the

judgment of a court having jurisdiction is a bar to a

subsequent prosecution for the same offense, even

though the judgment is erroneous and voidable, or the

court erred in exercising a discretion vested in it. The

fact that a court having jurisdiction when the trial

starts thereafter loses it by rendering judgment there-

on on Sunday does not change the fact that accused

had been placed in jeopardy. Where accused procured

a prior conviction to be set aside on the ground that

the court was without jurisdiction, he is estopped sub-

sequently to assert, in support of a defense of pre-

vious jeopardy, that such court had jurisdiction.

The trial of defendants in the Leake County Circuit

Court following a trial in the United States District Court

did not amount to double jeopardy because the United

States District Court did not have jurisdiction of the crime

with which defendants were charged.

Defendants’ third assignmnt of error is that their trial

in state court constituted invidious racial discrimination

and in their brief state the following:

10a

Artis Jenkins, the victim of the allegedly unlawful

assault which gave rise to both the state and the fed-

eral prosecutions, was a non-Indian. Both Smith John

and his son, Harry Smith John, are full-blooded Choc-

taw Indians. The incident took place upon lands which

are Indian country under federal law. As Indians ac-

cused of one of the crimes enumerated under the Major

Crimes Act, Defendants were subjected to trial in

federal court. 25 U.S.C. 1153; 18 U.S.C. 3242 Had the

Defendants instead been non-Indians, they would have

been subject only to state court jurisdiction. Clearly,

then, if jurisdiction were found to be vested over de-

fendants Smith and Harry Smith John so as to permit

the state and the federal courts to proceed against them,

they could be tried a second time for their assault

against Artis Jenkins only because of their race. Sub-

jection of the defendants to a second, state trial, there-

ore, is violative of the provisions of the Fifth and

Fourteenth Amendments to the Constitution of the

United States, in that it is invidious discrimination

based upon race. So fundamental and self-evident is

the proposition that it requires no further supporting

authorities.

The fallacy of defendants’ argument is that the United

States District Court had no jurisdiction to try them

under Major Crimes Act, 18 U.S.C.A. § 1153. There is no

Indian country in Mississippi, the defendants are citizens

of Mississippi subject to its laws, and therefore are sub-

ject to prosecution in its courts. Defendants stated in their

brief that their conviction in the United States District

Court has been appealed to the Fifth Cireuit Court of

Appeals. If the Fifth Cireuit should hold that the United

States District Court had jurisdiction under 18 U.S.C.A.

§ 1153 and affirm their conviction a conflict in decisions

between the Fifth Cireuit and this Court would result.

This conflict could then be properly resolved in the United

States Supreme Court.

lla

The defendants are in the same position as any other

defendant, regardless of race or color, who has been tried

for a crime by a court which had no jurisdiction. We there-

fore reject this argument of defendants that they are vic-

tims of invidious racial discrimination because of their

prosecution in the state court.

AFFIRMED.

Giuiespiz, C.J., Patterson and Inzer, P. JJ., and Smrru,

Rosertson and Broom, J.J., concur.

Waker, J., specially concurs.

Lez, J,, took no part.

Waker, Justice, specially concurring.

In view of this Court’s holding in Tubby v. State, 327

So.2d 272 (Miss.1976), I concur. However, I am still of the

opinion that Tubby was erroneously decided.