(dissenting)—The majority states the facts accurately and clearly. Its opinion is predicated on the federal decisions: In re Carmen, 165 F. Supp. 942 (September, 1958), and Dickson v. Carmen, No. 16185, 270 F. (2d) 809 (C.A. 9th; September 29, 1959). In the face of these decisions I am impelled to a different conclusion, realizing fully that whoever may be right the federal courts have the muscles, so far as the opening of prison doors is concerned.
The state of Washington, since its creation, has had territorial jurisdiction over all persons within its boundaries, unless restricted by Congress in the exercise of its plenary powers. Neah Bay Fish Co. v. Krummel (1940), 3 Wn. (2d) 570, 101 P. (2d) 600; Anderson v. Britton (1957), 212 Ore. 1, *98318 P. (2d) 291, 298, 300; United States v. McGowan (1938), 302 U. S. 535, 538, 82 L. Ed. 410, 412, 58 S. Ct. 286, 287; State ex rel. Best v. Superior Court (1919), 107 Wash. 238, 181 Pac. 688. The United States district attorney for the district of Oregon in his amicus curiae brief filed in Anderson v. Britton, supra, asks and answers the basic question:
"... Does the Indian on his reservation have a natural right, guaranteed by the United States Constitution, to violate the criminal laws of a State? The answer, of course, is ‘No,’ but the power of the United States Congress is such that it may by law shield him from the consequences of his criminal acts within the State, ...”
The only limitation upon the state’s jurisdiction to try Indians for crimes committed on reservations or in “Indian country” (excepting acts which Indians were by treaty given the right to perform and excepting offenses of which tribal courts may by treaty have had exclusive jurisdiction) were the acts of Congress declaring that in such cases the federal courts had jurisdiction. 18 U. S. C., chapter 53, §§ 1151, 1152, 1153.
In State ex rel. Best v. Superior Court, supra, we said (pp. 240, 241),
“ . . . By the enabling act, Washington was authorized to adopt a constitution, establish a state government, and was admitted into the Union upon equal footing with the original states, which carried with it the full power of enacting laws against crimes and punishing all those within her borders who might transgress such laws, be they citizens or not. This must be so, since the state became sovereign, with full power, except only those powers which had been delegated to the national government. And relator has not contended, and cannot contend, that any power was ever delegated to the national government to enact or enforce criminal laws applicable within the territorial limits of any state, except only those portions thereof which were exclusively within the jurisdiction of the Federal government, such as Indian reservations and the like. ...”
Since the superior court, except under the exceptional and coincidental circumstances hereafter indicated, has jurisdiction over the offense, the person charged, and the specific locus in quo, it must proceed, unless the exceptional *99and coincidental circumstances which divest it of jurisdiction and vest jurisdiction in the federal courts are brought to its attention.
Had Joseph Joe Wesley raised the issue of jurisdiction in the superior court, or had the facts been established which are here conceded: (1) that he had not severed his tribal relations, but was enrolled in a tribe, and (2) that the locus of the crime was in “Indian country,” as defined in 18 U.S.C. (1952 ed.) §1151, the superior court would have erred in proceeding to exercise its prima facie jurisdiction, and any judgment it entered would be set aside. State v. Condon (1914), 79 Wash. 97, 139 Pac. 871.
It is to be noted that there must be a coincidence of both of these incidents to raise the jurisdictional issue in any of these cases. The enrolled Indian is subject to prosecution in the state courts for the offense charged, if committed anywhere except on a locus referred to in the statute; anybody but an unemancipated Indian is subject to prosecution in the state courts for the offense charged, if committed on the locus referred to in the statute (unless committed against an unemancipated Indian or his property). New York ex rel. Ray v. Martin (1946), 326 U. S. 496, 90 L. Ed. 261, 66 S. Ct. 307; United States v. McBratney (1882), 104 U. S. 621, 26 L. Ed. 869.
But the issue was not raised. Joseph Joe Wesley entered a plea of guilty to grand larceny. By what clairvoyant power was the superior court to know: (1) that the man entering the plea was an unemancipated tribal Indian, and (2) that he had committed the offense in “Indian country,” as defined by 18 U. S. C. (1952 ed.) § 1151.
The issue is raised for the first time on an application for a writ of habeas corpus, and on the basis of new and additional facts which do not appear in the trial record. The general rule was, and should be, that the validity of a judgment in a criminal case, particularly when based on a plea of guilty, is not subject to collateral attack on jurisdictional grounds. In re Carmen (1957), 48 Cal. (2d) 851, 313 P. (2d) 817; Ex parte Wallace (1945), 81 Okla. Crim. 176, 162 P. (2d) 205. See 11 Vanderbilt Law Review 232. In other *100words, if the lack of jurisdiction can be established only upon the basis of new and additional facts, which do not appear in the trial court record, there can, as a general rule, be no collateral attack. In re Russell (1905), 40 Wash. 244, 82 Pac. 290; In re Carmen, supra. See, also, Anderson v. Britton, supra.
Evidence has been received in our courts in habeas corpus proceedings in support of collateral attacks on judgments of conviction, as pointed out by the majority, but only under exceptional circumstances where the contention has been that due process, guaranteed to the petitioner by the constitution of the state or of the United States, has been violated or denied. The exceptional circumstances which justify the extension of the scope of inquiry on habeas corpus are covered by RCW 7.36.130 and 7.36.140. No constitutional question is involved here, and the cited statutes have no application. The majority takes the position that the lack of original jurisdiction meets the “exceptional circumstance” rule, and that the evidence of lack of such jurisdiction should be received and considered in an application for a writ of habeas corpus.
I would limit the “exceptional circumstances” to the issue of the violation of constitutional rights. It is indisputable that Joseph Joe Wesley has no constitutional right to enter his plea of guilty to grand larceny in a federal court. The right to raise the jurisdictional question, now urged upon the court, could be, and was, waived by the failure to even suggest it when pleas of guilty were entered in the superior court. In re Russell, supra.
The rationale of such a holding is set forth by the California supreme court in the following quotation from In re Carmen, supra (p. 855),
“Petitioner had the opportunity to raise the jurisdictional question here involved by presenting the alleged facts at his trials. He failed to do so and, upon the facts there alleged and proved, the trial court’s implied determination that it had jurisdiction over the offenses was correct. To permit petitioner to now relitigate that issue would encourage defendants charged with crimes, the jurisdiction over which might depend upon complex factual determina*101tions, to withhold the raising of those issues until after they had attempted to obtain a favorable result at a trial on the merits, and perhaps until such time as a conviction by the court claimed to have jurisdiction would be impossible by reason of the statute of limitations, or otherwise. (See Ex parte Wallace, infra, 81 Okla. Crim. 176 [162 P. 2d 205].) The sanction of such procedure would permit piecemeal litigation of factual issues which should be finally determined upon a single trial.”
Two recent cases, State ex rel. Du Fault v. Utecht (1945), 220 Minn. 431, 19 N. W. (2d) 706, 161 A. L. R. 1316, and Ex parte Wallace, supra, are analyzed in the Carmen opinion. The court says of them (p. 855),
“ . . . the problem presented was almost identical with that involved here. Petitioners therein by collateral attack on habeas corpus attempted for the first time to contest the jurisdiction of the state courts of general jurisdiction which had convicted them. It was claimed that petitioners were ‘Indians’ and that the crimes of which they had been convicted had been committed in ‘Indian country.’ Relief was denied in both cases upon the ground that the determination of jurisdiction by a trial court of general jurisdiction was not subject to collateral attack on habeas corpus where petitioners had not contested the jurisdiction of the court at the trial nor brought to the trial court’s attention facts from which lack of jurisdiction could have been determined, and where upon the face of the trial court record there was no showing of lack of jurisdiction.
That holding also finds support in federal decisions. In the following cases it has been held that a conviction and sentence may not be attacked in habeas corpus proceedings, upon allegations of new and additional facts purporting to show that the convicting court lacked jurisdiction over the offense because of the status of the parties or the place where the crime was committed, where there was no affirmative showing of lack of jurisdiction upon the face of the trial court record. Davis v. Johnston (1944), 144 F. (2d) 862; Hatten v. Hudspeth (1938), 99 F. (2d) 501; Toy Toy v. Hopkins (1909), 212 U. S. 542, 53 L. Ed. 644, 29 S. Ct. 416; Ex parte Savage (1908), 158 Fed. 205.
*102These holdings are despite a recognized willingness on the part of the federal courts to look to sources outside of the record, where a petitioner claims that he has been denied his fundamental constitutional rights. Johnson v. Zerbst (1938), 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019; United States ex rel. McCann v. Adams (1943), 320 U. S. 220, 88 L. Ed. 4, 64 S. Ct. 14; Waley v. Johnston (1942), 316 U. S. 101, 86 L. Ed. 1302, 62 S. Ct. 964.
The majority relies upon In re Andy (1956), 49 Wn. (2d) 449, 302 P. (2d) 963. Nowhere in the briefs, or in the record in that case, is there any discussion of the issue now before the court. The brief in opposition to the petitioner’s release in the Andy case was concerned only with (p. 450),
“. . . whether the term ‘Indian country’ as defined in 18 U. S. C. (1952 ed.) § 1151, and as used in 18 U.S.C. (1952 ed.) § 1153, includes land within the limits of an Indian reservation which the United States has conveyed by patent to a non-Indian.”
Five arguments were made to support the proposition that the state had jurisdiction over the locus of the crime, but it was never suggested that the judgment and sentence were being collaterally attacked on evidence of facts which were no part of the record in the original criminal case in which sentence had been imposed.
We held in Andy, and correctly, that the locus of the crime was in “Indian country” under the federal statute. That holding is not decisive of the question now before the court.
It should also be noted that State ex rel. Irvine v. District Court, 125 Mont. 398, 239 P. (2d) 272, upon which we relied in the Andy case, does not deal with the question of the propriety of a collateral attack on a judgment of conviction in a habeas corpus proceeding; the Irvine case had nothing to do with habeas corpus, and did not involve a collateral attack upon the judgment of conviction. Irvine sought by a direct attack to have the judgment and sentence, entered on his plea of guilty to the crime of burglary, vacated within ten months after it was entered. It was established that he was an enrolled Indian, a member of the Flathead tribe, and *103the store which he had burglarized was within the territorial limits of the Flathead Indian reservation. The judgment was set aside.
We are not here dealing with a timely, direct attack upon a judgment, but with an attempted collateral attack on a nonconstitutional issue. For the reasons indicated, I do not regard Andy or Irvine as inconsistent with the position I believe we should take; nor am I concerned because the result of taking that position may be temporarily “futile.” The practical results that follow, from the position which the court now takes, present what the majority says will be “difficulty” in the “field of law enforcement.” (That is a masterpiece of understatement.) The difficulties will result in a change in the federal statutes or in the holdings of the federal courts.
I would deny the application for a writ of habeas corpus.
Mallery and Finley, JJ., concur with Hill, J.