No. 13332 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

STATE OF MONTANA ex re1 SHARON OLD ELK, JR.

## , Relator,

THE DISTRICT COURT OF THE STATE OF MONTANA, inand for the County of Big Horn, and the HONORABLE CHARLES T.,UEDKE, Presiding Judge, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Appellant: Moses, Kampfe, Tollivcr and Wright, Billings,

Montana Frank Kampfe argued, Billings, Montana For Respondent : Hon. Robert L. Woodahl, Attorney General, Helena,

Montana John F. North, Assistant Attorney General, appeared,

Helena, Montana James Seykora, County Attorney, argued, Hardin,

Montana

Submitted: April 8, 1?76 Decided:

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### 1976 Filed: iqj!f!-

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## TBL!;**~ LA. rt~-:iies~ \! I: .

### . Clerk

### Mr. JusticeGene B. Daly delivered the Opinion of the Court.

This isa challenge to thejurisdiction of the district court, presented tothis Court on a petition for a 

### writ of supervisory control or other appropriate

### writ. Relator 

### is the defendant ina criminal action in the district court, Big Horn County. Relator is an enrolledmember of the Crow Tribe of Indians and resides within the exteriorboundaries of the Crow Indian Reservation. The Crow Tribe of Indians appeared and argued as Amicus Curiae. On November 27, 1975, atthe Hilltop Tavern located approximately one milewest of Hardin, Montana, outside the exterior boundary of the Crow Indian Reservation, a shooting occurred in which one John Matt Bellwas killedby a high powered rifle. The Big Horn County sheriff's de~artment~pursuant to an investigation, had reason tobelieve that Sharon Old Elk, 

### Jr. was involved in the commission of the crime and that his vehicle, a green 1971Plymouth Duster bearing Big Horn County, Montana, license plates 22-4259, was also involved and atthe time of the homicide the car of Sharon Old Elk, 

### Jr. was extensivelydamaged

on the left front door. Pursuant to investigation, a complaint was prepared for deliberate homicide, charging Sharon Old Elk, 

### Jr

# .with the crime and was brought before the Honorable Kenneth Snively

## ,Justice of the Peace atHardin, Montana. An arrestwarrant was issued for one Sharon Old Elk, Jr. The warrant was delivered together with a copy of the complaint to Sheriff Robert L. Brown.The vehicle believed tobe used during the homicide 

### was spottedwithin the exteriorboundaries of the Crow Indian Reservation

on trust property owned by George Old Elk 11. The sheriff of Big Horn County proceeded onto the Crow Indian Reservation armed with a state arrestwarrant, and in the presence of a Bureau of IndianAffairs Special Officer proceeded to the Crow Indian TribalJudge, Fredrick Knows 

### HisGun. As a matter of formality and courtesy and knowing therewas

no formal extradition proceedings within the Crow Tribe and knowing the Crow Tribe had no extradition power or statute, the sheriff of Big Horn County requested the Tribal Judge to issue a tribal court order or similarwarrant for the arrest and apprehension of Sharon Old Elk, Jr. Judge Knows HisGun did not issue such 

### a warrant and in fact refused to do so. Sheriff Robert L. Brown together with other deputies and Bureau of IndianAffairs Special Officer William Snell, proceeded to the George Old Elk I1 residence located approximately three miles south of Crow Agency, Montana, which 

### is located on trust property. Sheriff Brown placed relator, Sharon Old Elk, Jr., under arrest, pursuant to the statearrestwarrant, and advised him of his constitutional rights, served a copy of thewarrant and the complaint upon relator and transported him back toBig Horn County Courthouse atHardin, Montana, where the relatorwas arraigned before Judge Kenneth Snively, Justice of the Peace. There 

### isno federal, stateor Crow Indian statute, ordinance

or regulation authorizing the procedure of extradition to and from

an Indian reservation within the exteriorboundaries of the stateof Montana. 

### -3-Allthe facts necessary to review the issue presented to this Court by relator have been stipulated and admitted as evidence by the parties. Relator contends the facts surrounding his arrest clearly show the arrestwas illegal since it was made pursuant to a state arrestwarrant, executed by a state officer, on an Indian person within the boundaries of an Indian reservation. The arrest and subsequent transportation of relator from the reservation by the sheriff of Big Horn County, establish a de facto extradition procedure which relator believes isinvalid, illegal and inviolation of his constitutional rights. Relator has cited allof the recognized cases which establish the unique status of the American Indian as a citizen and the relationshipbetween the Indian and jurisdictional powers of the tribal government, federal government and the state government. Very simply most matters within the exterior boundaries of an Indian reservation are within the exclusivejurisdiction of the tribal courts or federal courts unless falling specifical2ywithin the state'sjurisdiction as directed or allowed by an act of Congress. There isno disagreement as a general proposition with this argument of relator. Relator relies on McClanahan v. StateTax Commission of Arizona, 411

### U.S. 164, 93 S.Ct. 

### 1257, 36 L.ed 2d 

### 129, 135, for the proposition that: 

# "'*

# ** Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians tomake their own laws and be ruled by them.'" Relator then cites as his principal authority in relation to service of process, arrest or extradition jurisdiction by state authorities

over Indian residents of a reservation the case of Stateof Arizona

ex rel. Merrill 

### v. Turtle, 413 F.2d 683,686 (9th Cir. 1969).InTurtle, 

### a Cheyenne Indian, who resided on the Navajo Indian Reservation inArizona, was sought by the Stateof Oklahoma for trialon 

### a charge of second degree forgery. Oklahoma first applied totheNavajo Tribal Council forextradition of defendant. The Navajo Tribal Court refused to extradite, the defendant. As

a result of a request from Oklahoma officials, the Governor of Arizona ordered the extradition of the defendant, pursuant to Arizona law. The sheriff of Apache County, Arizona, executed the Arizona Governor's warrant by arresting the defendant on the reservation and confining him inthe tribaljail. The Ninth Circuit Court held thatArizona's exercise of claimedjurisdiction would clearly interferewith the rights essential to the Indian's self-government. The Ninth Circuit Court reached 

### its decisionby considering the criteriaof whether the claimed right by Arizona toexercise jurisdiction by means of extraditionwould infringe on the right of reservation Indians tomake their own laws and tobe ruled by them orwhether the application of stateauthority to extradite would interferewith reservation self-government. Relator concludes his argument with the request that this Court regard an Indian reservation, within the state of Montana,

as a co-equal sovereign, such as our 

### 49 sister states. This simplifies the remedy here by application of the Uniform Criminal Extradition Act, sections 95-3101 through 95-3136, R.C.M. 1947. This proposal may have an appealing ring the first time around, however, itwould take a great dealmore from our Indian citizens than itwould bestow, if in factwe had the power todo so, which in factwe do not. We agree with the proposition that inthe absence of governing acts of Congress, the question has always been whether 

### state action 

### -5-infringed on the right of reservation Indians tomake their own laws and tobe ruled by them. We disagree with relator's application of the Turtle

case to the instant facts to demonstrate an interference inthe right of the Indians tomake their own laws and be governed by them. In Turtle the situation 

### is analogous to the question before

us however, the one Cmportant exception 

### is that the Navajo Tribe of Indians had adopted a resolution inregard to an extradition proceeding. The Court stated: "In 1956 theNavajo Tribal Council, the tribal legislativebody, adopted a Resolution providing procedures for Indian extradition. While this tribal extradition law by 

### its terms specifically provides forextradition only to the states of Arizona, Utah, and New Mexico, it has been approved by the Commissioner for IndianAffairs asprovided forby federal law and isnow part of theNavajo Tribal Code. 17 N.T.C., Sections 1841-42. The Tribe has thus codified and does now exercise 

### its extradition power. This power cannot now be assumed by or shared with the State of Arizona without 'infring[ing] on the right of reservation Indians tomake their own laws and be ruled by them.' Williams v. Lee, supra atp. 220 of 358 U.S., atp. 271 of 79 S.Ct." (Emphasis supplied). The Crow Tribe of Indians had no extradition code atany time pertinent to this matter and hence Turtlewould not apply. Further, theNew Mexico Supreme Court reviewed Turtle in State Securities, Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786, 788, wherein it held that the statecourt could obtainjurisdiction

over Indian defendants by issuing and sewing process upon them while they were on the reservation. It is interesting tonote theNew Mexico Supreme Court indicates that ithad made a survey of thejurisdictional question and stated: "In an attempt todetermine whether Indian immunity from process isnecessary inthis case toprotect the right of reserva.tionIndians tomake their own laws and be

### ruled by them,we have surveyed a number of cases and other authorities. According to some court decisions some powers reserved to Indians for their exclusive jurisdiction,and whichmay therefore be necessary for Indian self-government,are: jurisdiction to try an offense committed on the reservationby or against an Indian,Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90L ed. 962 (1946); extradition powers, if a tribe has codified and exercises its own extradition - 

### law,Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th.Cir.1969), cert. denied 396 U.S. 1003, 90S.Ct. 551, 24 L.Ed.2d 494-(1970) 

# *

# * *.I1 

### (Emphasis supplied.) The New Mexico Supreme Court agrees with this Court's interpretation of Turtle in that the tribe must firsthave codified and exercised its own extradition laws before the rule in Turtle would apply. Further, this Court in Bad Horse v. Bad Horse, 163Mont. 445, 451,452, 517 P.2d 893, in a related matter involving service of process within the exteriorboundaries of the Fort Peck Indian Reservation, said: "Art. 111, Sec. 6 of the 1889 Montana Constitution provides: 

### "'Courts of justice shallbe open to every person, and a speedy remedy afforded for every injury of person, property or character;and that right and justice shall be administeredwithout sale, denial or delay.' "Section 83-102,R.C

### .M. 1947,concerning jurisdiction

provides: 

### "'The sovereignty and jurisdiction of this state extend to all places within its boundaries, as established by the constitution, excepting suchplaces as are under the exclusive jurisdiction of the United States.'

"Servicewas obtained pursuant to Rule 4,Montana Rules of Civil Procedure. Once the district court has assumed jurisdiction over the subjectmatter and process has been properly served, the defendant cannot throw up a shield around herself by claiming that the state process server cannot pierce the exterior boundaries of an Indian reservation and serve civil process therein.

### "In the instant case themarriage 'contract' took place off the reservation. Therehas been no preemption by the federal governmentwhich could prevent the transfer of jurisdiction to the state. There is no disclaimer made and there is no infringement on the right of the tribe to govern itself. Indian country is not a federal enclave off limits to state process servers. Service of process extends to an Indian defendant servedwithin the Fort Peck Reservation. State Securities,Inc. v. Anderson, 84N.M. 629,

### 506 P.2d 

### 786. "The myth of Indian sovereigntyhas pervaded judicial attempts by state courts to dealwith contemporary Indianproblems. Such rationale must yield to the realities ofmodern life,both on and off the reservation. As Judge Russell Smith recently observed in United States v. Blackfeet Tribe, (D.C.Mont.), 364 F.Supp. 192, 194: "'The blunt fact, however, is that an Indian Tribe is sovereign to the extent that the United States permits it to be sovereign---neithermore nor less.1 

### "Only by throwing off\the strictures

### of 'Indian sovereignty can state courts enter the arena and meet the problems of the modern Indian. If Congress and the federal appellate cnurts have a better solution, let them come forward." This Court 

### in Bad Horse also relied onAnderson, the New Mexico

case discussed heretofore. Relator terminates his petition before this Court with this finalplea: "CONCLUSION: This Honorable Court should take jurisdiction hereof and grant relator relief under an appropriatewrit. Thematter of the protection of an individual's constitutionally guaranteed right to due process of law,as well as a definitive declaration of the jurisdictional authority and power of the State of Montana in regard to Indian reservations within its boundaries, are of great public 'nterest and directly affect the impartial and effective maintenance of Justice and the public's confidence in and respect for the courts. There is no other appeal or other adequate or speedy remedy at law available to the relator for the disposition of this issue." (Emphasis supplied.) Individual rights, due process, impartial and effective maintenance of justice and the public conhidence in and respect for the courts are paramount in the resolution of these kind of matters. However, these rights and duties afe owed to all citizensnot only those residingwithin the exteriorboundaries of an Indian reservation. The citizens of Montana generally and Big Horn County particularlywould be grossly deprived ifunder the guise of individual due process they not only had no speedy, adequate, remedy but

## no remedy 

### at all. This ineffect isthe position of relator. The federal authoritieshave no jurisdiction pursuant to 

### 18U.S.C. 

### 55 1151through 1165, as the crime was not committed inIndian country as defined in 18U.S.C. 

### 5 1151. Here, we do not have the situation tomeet the requirements of Unlawful Flight toAvoid Prosecution, 18U.S.C. $1073. Tribal Judge Frederick Knows His Gun had no authority to extradite or under Title 25, Code of Federal Regulations, to apprehend relator

on behalf of the stateof Montana for the crime of deliberate homicide. Finding no interferencewith tribal self-government and that the stateof Montana proceeded under the only remedy available,