State Ex Rel. McDonald v. Dist. Cou

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: A p r i l 1 0 , 1972
Decided : APR 19 1972

Filed : AP!? 1 9 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 crim-
inal 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 Res-
ervation 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 documen-
tary 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 charg-
ing 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 proceed-
ings 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 Con-
s 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 crim-
inal 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 withdraw-
ing 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 Danger-
ous 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 Reser-
vation 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, re-
quiring "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 *** to
a l t e r and abolish t h e i r constitution ** *";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 con-
trol 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 abso-
l u t e jurisdiction and control over Indian lands, enacted Public Law 280 grant-
ing 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. Amendment of the s t a t e
constitution i s not required under Public Law 280. 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 Wash-
ington'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 con-
s 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 Commis-
sioners, 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 jurisdic-
tion by s t a t e courts over Indians committing criminal offenses on the Flat-
head 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 cod-
i 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 proclama-
tion 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
rescinded t h i s Tribal Resolution eight days a f t e r i t s enactment. For those
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 with-
drawal of Tribal consent.
Tribal Resolution 2318 on September 15, 1967 was 1i kewise ineffec-
t i v e t o withdraw Tribal consent under section 83-806, R.C.M. 1947. I t was
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 . 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. 1947 or
otherwise. 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.
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Associate Justice