(dissenting).
It is my view that the place where this crime was committed is no longer under the jurisdiction of the United States but is under the jurisdiction of the state of Montana and that the district court was right in so holding. Prior to the 1948 amendment of the federal statute, the rule was “that the country that was formerly subject to the Indian occupancy continued to be Indian country so long as the Indians had title to it, and no longer; as soon as the Indians parted with the title, it ceased to be Indian country without any further act of Congress.” *41627 Am. Jur., “Indians,” p. 571, sec. 45. To the same effect is 42 C. J. S., “Indians,” sec. 67, page 774.
Here the store that was burglarized by petitioner is a part of the town of Ronan; the Indian title to it is extinguished; the store is not operated for the benefit of the Indians and the federal' government has no jurisdiction over it.
Since the majority opinion is based in part upon decisions from the state of Wisconsin prior to the amendment of 1948, it might be well to note what the rule of law is in that state.
In State v. Johnson, 212 Wis. 301, 249 N. W. 284, 287, the court, after reviewing many authorities, said: “We think the correct rule, supported by sound reason and the weight of authority, is that the state courts have jurisdiction to try Indians for offenses committed upon fully patented lands even though such lands are located within the exterior boundaries of an Indian reservation; that when the lands are fully patented by the United States they cease to be territory of the United States and become subject to the jurisdiction of the state and its laws.”
That case distinguishes the case of United States v. Frank Black Spotted Horse, D. C., 282 F. 349, which reached a contrary conclusion as being based upon an Act of the South Dakota legislature ceding jurisdiction over the lands there in question to the United States government and an Act of Congress assuming jurisdiction. The court in that case held that federal jurisdiction extended over the reservation as it existed at the time the state ceded jurisdiction to the federal government. The later case of Kills Plenty v. United States, 8 Cir., 133 F. (2d) 292, was also based upon the same law in South Dakota and the same federal statute assuming jurisdiction and concluded that it was not controlled by the ruling in the Johnson case which dealt with a different federal statute.
As to the Flathead Indian reservation, the case of Clairmont v. United States, 225 U. S. 551, 32 S. Ct. 787, 56 L. Ed. 1201, should settle the question as to what the law was before the 1948 amendment. It held specifically that when the Congress of the United States granted to the railroad company the fee *417in the land constituting the railroad right-of-way it was no longer Indian country and that a person could not be convicted of the crime of introducing liquor into the Indian country by having it in his possession on the train on the right-of-way.
It seems axiomatic that if the state had jurisdiction over the property in 1948 Congress could not recapture that jurisdiction without some action on the part of the state. But in my opinion the 1948 Act of Congress, Title 18, U. S. C. A., sec. 1151, was but a recodification of the federal statutes and the same did not make any amendment to existing laws. That section reads: “Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. ’ ’
As will be noted under this statute in order for a place to be “Indian country” it must be under the jurisdiction of the United States government.
But it is contended that the clause “notwithstanding the issuance of any patent, ’ ’ has changed the rule as it stood previously. I think that phrase must be construed as meaning and referring to either a trust patent or a patent restricting the power of alienation as those terms were defined in United States v. Ramsey, 271 U. S. 467, 46 S. Ct. 559, 70 L. Ed. 1039, and that the phrase does not comprehend a patent extinguishing the Indian title. In other words the phrase “notwithstanding the issuance of any patent, ’ ’ obviously means such patent as leaves the land under the jurisdiction of the United States. I think too that subdivision (e) of this statute so declares.
*418But if the amended statute were intended to work a change in the definition of Indian country, I think for the reasons set out in my dissenting opinion on rehearing in State v. Pepion, Mont., 230 Pac. (2d) 961, it was and is ineffectual as an attempt to reinvest jurisdiction in the federal government without action by the state of Montana.
' I have examined all the authorities relied on in the majority opinion and find they are all distinguishable or inapplicable to the facts here presented. Konaha v. Brown, 7 Cir., 131 F. (2d) 737, involved a crime committed on a highway. The conclusion was proper because the grant made by the government simply amounted to an easement, a right to build and maintain a highway. There was no relinquishment of jurisdiction or passing of the Indian title such as we have here. In Yohyowan v. Luce, D. C., 291 F. 425, the crime was committed on allotted land, title to which was held in trust by the government. The defendant as well as the person whom he was alleged to have killed were both Indians. In Tooisgah v. United States, 10 Cir., 186 F. (2d) 93, the accused was a full-blood Indian. He had been convicted of murdering another full-blood Indian. The crime was committed on land embraced within an Indian allotment where final patent had not yet been issued. The federal circuit court held that even then the federal district court had no jurisdiction because the reservation as such had been dissolved.
The case of Ex parte Pero and Moore, 7 Cir., 99 F. (2d) 28, has nothing to do with the question before us. The only question before the court in that ease was whether the two persons there involved were Indians. The crime involved admittedly took place on the reservation. The case had nothing to do with the question whether property as to which the Indian title had been extinguished was still a part of the reservation or Indian country. ' The fallacy of the majority opinion in the instant case rests in the fact that it assumes that land within the exterior boundáries of an Indian reservation is still a. part of the reservation although the Indian title has been extinguished by the granting of a title in fee by the federal government.
*419By denying jurisdiction to the state courts in this case we are in effect declaring an open season for burglary in favor of the Indians as against property situated as the “Super Poods” store in Ronan.
I think the federal courts will properly deny federal jurisdiction and we will have repetition of the case of State v. Tully, 31 Mont. 365, 78 Pac. 760; United States v. Tully, C. C., 140 P. 899, where both the state and federal courts denied jurisdiction.
I think Judge Comer ruled properly in sustaining the jurisdiction of the state court and the judgment entered on the plea of guilty.