No. 89-280
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs-
HERB SCHAEFFER,
Defendant and Respondent.
APPEAL FROM: The D i s t r i c t C o u r t o f t h e N i n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f G l a c i e r ,
The H o n o r a b l e R.D. M c P h i l l i p s , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
James C . N e l s o n , County A t t o r n e y , C u t Bank, Montana
For Respondent :
David F. S t u f f t ; F r i s b e e , Moore, S t u f f t & O l s o n ,
C u t Bank, Montana
S u b m i t t e d on B r i e f s : J u l y 20, 1989
Decided: O c t o b e r 1 9 , 1989
Filed:
Justice John Conway Harrison delivered the Opinion of the
Court.
This 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 S S 31-1-401 and 31-1-407, MCA; and in failing to
keep a pawnbroker's register in violation of 85 31-1-402 and
31-1-407, MCA.
The three misdemeanor offenses filed against Schaefer
in justice court included these two offenses:
COUNT ONE
[Tlhe 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
[Tlhe 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 co,uld 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 persons 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 fo.und guilty of Counts I
and 11, 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
11.
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 crimes 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), 760
P.2d 96, 45 St.Rep. 1627; and Brown v. District Court of the
Seventeenth Judicial District (Mont. 1989) , 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, S 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:
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 i.s 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.
We concur: /-9
Jutices
Justice Fred J. Weber dissents as follows:
The State of Montana does not have jurisdiction over a
criminal offense by a non-Indian against an Indian, committed
within the exterior boundaries of the reservation. This was
the holding in Greenwalt, wherein this Court affirmed the
District Court's dismissal of criminal charges against a
non-Indian based on lack of State jurisdiction. In
Greenwalt, two non-Indians stole five calves on an Indian
reservation. One of these calves belonged to an Indian. The
charges against the Greenwalts, relating to the theft of this
calf were dismissed on the grounds that the State lacked
authority to prosecute. In Greenwalt we affirmed the
dismissal, holding that the State did not have jurisdiction.
In Greenwalt, this Court stated:
In Williams v. United States (1946), 327 U.S.
711, 714, 66 S.Ct. 778, 780, 90 L.Ed. 962, 964, the
United States Supreme Court stated:
"While the laws and courts of the State of
Arizona may have jurisdiction over offenses
committed on this reservation between persons
who are not Indians, the laws and courts of
the United States, rather than those of
Arizona, have jurisdiction over offenses
committed there, as in this case, b~ - -
one who
is - -
- not an Indian against - - -is an
one who -
Indian. "
The 1982 edition of Felix S. Cohen's Handbook
of Federal Indian Law, states at page 353, relying
upon Williams:
"Criminal offenses by non-Indians against
Indians or their property are subject to the
Indian Country Crimes Act [18 U.S.C. 5 131.
The Supreme Court has stated that federal
court jurisdiction under this Act is exclusive
of state court jurisdiction."
- American Indian Lawyer Training Program, Inc.,
See,
Justice in Indian Country (1980) 32, and Manual of
Indian Criminal Jurisdiction (1978 Supp.) 73a;
Getches, Rosenfelt and Wilkinson, Federal Indian
Law (1979), 388 ("c. Crimes by a Non-Indian Against
an Indian : State courts cannot have
jurisdiction.")
Greenwalt, 663 P.2d at 1182-83.
In Greenwalt the remaining charges were later dismissed
for insufficient evidence. However, that is irrelevant to
the issue of jurisdiction in the present case because those
charges did not involve a crime against an Indian. I
conclude that the facts of Greenwalt are not distinguishable
and the holding should control the present case. We further
note that the majority can find no comfort in the language
quoted from State ex rel. Kennerly, since that case involved
a civil dispute.
Concurrent State and federal jurisdiction may lie where
the crime is "victimless." See, Cohen, Felix S., Handbook -of
Federal Indian Law, 353, n.4 (1982); State v. Flint
(Ariz.App. 1988), 756 P.2d 324. The majority opinion
analogizes to Thomas in concluding that the present case
involves a victimless crime. In Thomas we determined that
the crime was "the failure to discharge a reporting duty, not
infliction of damage upon property belonging to an Indian."
We concluded that the crime was therefore victimless for
purposes of determining jurisdiction. In the present case, I
fail to see how charging interest of 869% to 1228% is a
victimless crime. Examples of victimless crimes include
possession of illegal drugs, pornography, violation of
motorcycle helmet laws, gambling or tax evasion. The Indians
doing business at Mr. Schaefer's pawn shop, who were being
charged interest in excess of 800%, certainly must be classed
as victims.
The opinion states that the Indian citizens of our State
are entitled to the protection of laws regulating
pawnbrokers, yet concludes that the crime is victimless.
This is inconsistent. While I understand the desire of this
Court to provide a means by which this defendant may be
punished, I simply cannot agree that this is a victimless
crime or that the State has jurisdiction. Our desire to see
justice done stems from the fact that there - victims in
are
the present case. I would affirm the District Court.
Justice William E. Hunt, Sr., concurs in the foregoing dissent.
Justice