No. 13332 

IN THE 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, in and 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 : JpL - 8 1976 

Filed: iqj!f!- - 8 

TBL!;**~ L A. rt~-:iies~ \! I: . . 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is a challenge to the jurisdiction of the district 

court, presented to this Court on a petition for a writ of 

supervisory control or other appropriate writ. Relator is the 

defendant in a criminal action in the district court, Big Horn 

County. Relator is an enrolled member of the Crow Tribe of Indians 

and resides within the exterior boundaries of the Crow Indian 

Reservation. The Crow Tribe of Indians appeared and argued as 

Amicus Curiae. 

On November 27, 1975, at the Hilltop Tavern located approximately one mile west of Hardin, Montana, outside the exterior 

boundary of the Crow Indian Reservation, a shooting occurred in 

which one John Matt Bell was killed by a high powered rifle. 

The Big Horn County sheriff's de~artment~pursuant to an 

investigation, had reason to believe that Sharon Old Elk, Jr. was 

involved in the commission of the crime and that his vehicle, a 

green 1971 Plymouth Duster bearing Big Horn County, Montana, 

license plates 22-4259, was also involved and at the time of the 

homicide the car of Sharon Old Elk, Jr. was extensively damaged 

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 at Hardin, Montana. An arrest warrant 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 to be used during the homicide was 

spotted within the exterior boundaries 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 arrest warrant, and in the 

presence of a Bureau of Indian Affairs Special Officer proceeded 

to the Crow Indian Tribal Judge, Fredrick Knows His Gun. 

As a matter of formality and courtesy and knowing there was 

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 similar warrant for the arrest and apprehension of 

Sharon Old Elk, Jr. Judge Knows His Gun did not issue such a 

warrant and in fact refused to do so. 

Sheriff Robert L. Brown together with other deputies and 

Bureau of Indian Affairs 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 state arrest warrant, and advised him of his 

constitutional rights, served a copy of the warrant and the complaint 

upon relator and transported him back to Big Horn County Courthouse 

at Hardin, Montana, where the relator was arraigned before Judge 

Kenneth Snively, Justice of the Peace. 

There is no federal, state or Crow Indian statute, ordinance 

or regulation authorizing the procedure of extradition to and from 

an Indian reservation within the exterior boundaries of the state of 

Montana. 

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All the 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 arrest was illegal since it was made pursuant to a state 

arrest warrant, 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 is invalid, illegal and in violation 

of his constitutional rights. 

Relator has cited all of the recognized cases which establish 

the unique status of the American Indian as a citizen and the 

relationship between 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 exclusive jurisdiction of the 

tribal courts or federal courts unless falling specifical2y within 

the state's jurisdiction as directed or allowed by an act of Congress. 

There is no disagreement as a general proposition with this argument of relator. Relator relies on McClanahan v. State Tax 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 to make 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 State of Arizona 

ex rel. Merrill v. Turtle, 413 F.2d 683,686 (9th Cir. 1969). 
In Turtle, a Cheyenne Indian, who resided on the Navajo 

Indian Reservation in Arizona, was sought by the State of Oklahoma 

for trial on a charge of second degree forgery. Oklahoma first 

applied to the Navajo Tribal Council for extradition 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 in the tribal jail. The Ninth 

Circuit Court held that Arizona's exercise of claimed jurisdiction 

would clearly interfere with the rights essential to the Indian's 

self-government. 

The Ninth Circuit Court reached its decision by considering 

the criteria of whether the claimed right by Arizona to exercise 

jurisdiction by means of extradition would infringe on the right 

of reservation Indians to make their own laws and to be ruled by 

them or whether the application of state authority to extradite 

would interfere with 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, it would take a great deal more from our Indian 

citizens than it would bestow, if in fact we had the power to do 

so, which in fact we do not. 

We agree with the proposition that in the absence of governing 

acts of Congress, the question has always been whether state action 

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infringed on the right of reservation Indians to make their own 

laws and to be ruled by them. 

We disagree with relator's application of the Turtle 

case to the instant facts to demonstrate an interference in the 

right of the Indians to make 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 in regard to an extradition 

proceeding. The Court stated: 

"In 1956 the Navajo Tribal Council, the tribal 

legislative body, adopted a Resolution providing 

procedures for Indian extradition. While this 

tribal extradition law by its terms specifically 

provides for extradition only to the states of 

Arizona, Utah, and New Mexico, it has been approved 

by the Commissioner for Indian Affairs as provided 

for by federal law and is now part of the Navajo 

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 to make their own laws and 

be ruled by them.' Williams v. Lee, supra at p. 220 of 

358 U.S., at p. 271 of 79 S.Ct." (Emphasis supplied). 

The Crow Tribe of Indians had no extradition code at any 

time pertinent to this matter and hence Turtle would not apply. 

Further, the New 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 state court could obtain jurisdiction 

over Indian defendants by issuing and sewing process upon them 

while they were on the reservation. It is interesting to note 

the New Mexico Supreme Court indicates that it had made a survey 

of the jurisdictional question and stated: 

"In an attempt to determine whether Indian immunity from 

process is necessary in this case to protect the right 

of reserva.tion Indians to make 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 which may therefore be necessary for 

Indian self-government, are: jurisdiction to try an 

offense committed on the reservation by or against an 

Indian, Williams v. United States, 327 U.S. 711, 66 

S.Ct. 778, 90 L 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, 90 S.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 first have codified 

and exercised its own extradition laws before the rule in Turtle 

would apply. 

Further, this Court in Bad Horse v. Bad Horse, 163 Mont. 

445, 451, 452, 517 P.2d 893, in a related matter involving service 

of process within the exterior boundaries of the Fort Peck Indian 

Reservation, said: 

"Art. 111, Sec. 6 of the 1889 Montana Constitution 

provides : 

"'Courts of justice shall be open to every person, 

and a speedy remedy afforded for every injury of person, 

property or character; and that right and justice shall 

be administered without 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 such places as are 

under the exclusive jurisdiction of the United States.' 

"Service was obtained pursuant to Rule 4, Montana Rules 

of Civil Procedure. Once the district court has assumed 

jurisdiction over the subject matter 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 the marriage 'contract' took place 

off the reservation. There has been no preemption by 

the federal government which 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 served within the 

Fort Peck Reservation. State Securities, Inc. v. Anderson, 

84 N.M. 629, 506 P.2d 786. 

"The myth of Indian sovereignty has pervaded judicial 

attempts by state courts to deal with contemporary 

Indian problems. Such rationale must yield to the 

realities of modern 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---neither more 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 on Anderson, the New Mexico 

case discussed heretofore. 

Relator terminates his petition before this Court with this 

final plea: 

"CONCLUSION: This Honorable Court should take 

jurisdiction hereof and grant relator relief under 

an appropriate writ. The matter 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 citizens 
not only those residing within the exterior boundaries of an 

Indian reservation. The citizens of Montana generally and Big 

Horn County particularly would be grossly deprived if under the 

guise of individual due process they not only had no speedy, 

adequate, remedy but no remedy at all. This in effect is the 

position of relator. The federal authorities have no jurisdiction pursuant to 18 U.S.C. 55 1151 through 1165, as the crime was 

not committed in Indian country as defined in 18 U.S.C. 5 1151. 

Here, we do not have the situation to meet the requirements of 

Unlawful Flight to Avoid Prosecution, 18 U.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 state of Montana for the crime of deliberate 

homicide. 

Finding no interference with tribal self-government and 

that the state of Montana proceeded under the only remedy available,