State v. Schaefer

JUSTICE HARRISON

delivered the Opinion of the Court.

*438This is an appeal from the District court of the Ninth Judicial District, Glacier County, Montana, wherein the District Court granted the defendant’s motion to dismiss based on lack of jurisdiction because the matter occurred within the exterior boundaries of the Blackfeet Indian Reservation. We reverse.

Defendant/respondent Herb Schaefer, a non-indian, was charged in the Glacier County Justice Court on March 16, 1988, with violations of Montana pawnbroker laws, including the charging of excessive interest rates as a pawnbroker in violation of §§ 31-1-401 and 31-T-407, MCA; and in failing to keep a pawnbroker’s register in violation of §§ 31-1-402 and 31-1-407, MCA.

The three misdemeanor offenses filed against Schaefer in justice court included these two offenses:

“COUNT ONE
“ [T]he above named Defendant committed the offense of CHARGING [Garnet Bear Child] EXCESSIVE INTEREST AS A PAWNBROKER, a MISDEMEANOR, in violation of Section 31-1-401 & 31-1-407 MCA.
“COUNT TWO
“[T]he above named Defendant committed the offense of CHARGING [Margaret Wippert] EXCESSIVE INTEREST AS A PAWNBROKER, a MISDEMEANOR in violation of Sections 31-1-401 & 31-1-407 MCA.

It is of interest to note that the officer who brought these charges in the justice court is an enrolled member of the Blackfeet Indian Tribe, employed by the Bureau of Indian Affairs and was not employed by any State agency or the Glacier County Sheriff’s Department. During the investigation by this officer, there was, at that time, no ordinance under which charges could be brought against Schaefer in the Blackfeet Tribal Court. Consequently, charges were sought in justice court.

Schaefer moved to dismiss the complaint in the justice court on the ground that the State did not have jurisdiction to criminally prosecute him since the alleged offenses occurred within the exterior boundaries of the Blackfeet Indian Reservation and because the per*439sons involved in the transactions with which he was charged were Indians. The justice court rejected Schaefer’s motion to dismiss and, after a bench trial, Schaefer was found guilty of Counts I and II, charging excessive interest rates, misdemeanors, and not guilty of failing to keep a pawnbroker’s register. Schaefer was imposed with a $100 fine each on Counts I and II.

Schaefer appealed to the District Court and renewed his jurisdictional objection by filing on March 9, 1989, a motion to dismiss. After the filing of briefs and oral argument the District Court, on April 11, 1989, granted defendant’s motion to dismiss on the ground that the State lacked jurisdiction.

The State now appeals the District Court’s order granting defendant’s motion to dismiss and raises the following issue on appeal: Does the State of Montana have jurisdiction to criminally prosecute a non-indian defendant for violation of the Montana pawnbroker statutes where the alleged offenses occur within the exterior boundaries of an Indian reservation and involve transactions with Indians?

Garnet Bear Child and Margaret Wippert are enrolled members of the Blackfeet Tribe who live and reside on the Blackfeet Indian Reservation. Schaefer, as previously noted, is a non-Indian and his place of business is located within the exterior boundaries of the Blackfeet Indian Reservation in Browning, Montana.

Concerning the loans which were the basis of Schaefer’s charges, the State contends Schaefer’s conduct, charging Bear Child and Wippert an interest rate of 1228% and 869% per annum, is neither a “small matter” nor “merely an overcharge.” Additionally, the State claims that the federal government, whether or not it has jurisdiction, has neither the time, money, nor staff to supervise, regulate and control reservation pawnshops.

Schaefer argues that by virtue of Blackfeet Tribal Resolution No. 5-89, he is authorized and regulated by the Tribe to do business as a pawnbroker. However, Resolution No. 5-89 was procured from the Tribal Council by Schaefer and his attorneys in preparation for the trial in justice court. The Resolution was adopted by the Blackfeet Tribal Business Council on October 6, 1988, some nine months after Schaefer’s commission of the offenses and two working days before Schaefer’s case was scheduled for trial.

The District Court, in granting Schaefer’s motion to dismiss, held that State v. Greenwalt (1983), 204 Mont. 196, 663 P.2d 1178, is controlling. We do not agree. In Greenwalt, the District Court held that the State lacked jurisdiction to prosecute the defendants for *440crimes committed against Tribal members on an Indian reservation. Neither Tribal law nor Federal law had provided against such misdemeanor offenses. In the case at bar, unless the State had brought these charges against Schaefer, Bear Child and Wippert, Indian citizens of Montana, would be without the State’s protection for offenses committed on an Indian reservation by a non-Indian.

In two recent cases, State v. Thomas (Mont. 1988), [233 Mont. 451,] 760 P.2d 96, 45 St.Rep. 1627; and Brown v. District Court of the Seventeenth Judicial District (Mont. 1989), [238 Mont. 248,] 777 P.2d 877, 46 St.Rep. 1242, this Court assured the Indian citizens of this State the protection of its laws where neither the Tribal Court nor the Federal government provided such protection. While Brown involved the regulation of the sale of liquor and the licensing of the same on an Indian reservation by Indians, this Court held that the State did have the power to prosecute, in State court, violations of State liquor laws which occur within the borders of an Indian reservation by Indian people.

In Thomas, this Court held that our State courts have jurisdiction over non-Indians charged with violations of the accident reporting law, § 61-7-108, MCA. There, the defendant, a non-Indian, was charged with violating this provision after his vehicle struck a calf owned by an Indian family. We held that even though the accident occurred on a reservation, and the property damaged belonged to an Indian family, the State nonetheless had jurisdiction to prosecute the defendant under the State statute. In Thomas, it was irrelevant to our conclusion that the calf was owned by an Indian family. It is equally irrelevant to the conclusion we reach here that the victims of Schaefer’s violations were members of the Blackfeet Tribe.

Two elements are to be considered here, those elements expressed in this Court’s recent opinion in Thomas on “victimless crimes,” and the rights of Indian citizens of this State to be protected by our laws. Bonnet v. Seekins (1952), 126 Mont. 24, 243 P.2d 317; and State ex rel. Kennerly v. District Court (1970), 154 Mont. 488, 466 P.2d 85. Here, as in Thomas, Schaefer failed to discharge a reporting duty. In Thomas the defendant failed to report a traffic accident. In the case at bar Schaefer failed to obtain a county pawnbroker license. While so doing Schaefer created victims by charging outrageously high interest rates, as well as violating the laws of this State.

This Court, in State ex rel. Kennerly, 154 Mont. at 493, 466 P.2d at 88, noted:

*441“The jurisdiction problem arising from civil and criminal legal relationships between Indians and non-Indians has been before the courts of this state since statehood. With some 25,000 Indian citizens living on or near one of some seven reservations in the state, it is understandable that the problem is not new however, because of the duality of the Indian’s legal status each case must be considered in light of both state and federal relationships.
“Indians resident in Montana, whether they be full blood or partial blood, allotted or unallotted, domiciled on the reservation or off of it, of one tribe or another, or whatever their status, are citizens of the State of Montana. They are entitled to the protection of our laws and are responsible to our laws . . .”

Montana’s constitution provides to all citizens, Indian and non-Indian alike, equal protection of its laws. The Indian citizens of this State are entitled to the protection of the laws which license and regulate pawnbrokers. Montana has a substantial and important interest in protecting all of its citizens from dishonest pawnbrokers. This purpose is effectuated by requiring accurate and detailed records of transactions in the event authorities need to trace stolen merchandise. The records of transactions also prevent the charging of excessive rates of interest. Regardless of where the pawnshop is located, whether on or off the reservation, the business is open to the entire public. The State has a substantial interest in protecting all citizens against such violations.

The decision of the District Court is reversed and remanded.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, GULBRANDSON and McDONOUGH concur.