No 12244 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, ex rel., THOMAS 

### E McDONALD, Petitioner,

THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, in and for the County of Missoula, JUDGE JACK L GREEN, presiding, Respondent.

ORIGINAL PROCEEDING

### : Counsel of Record: For Petitioner: Edward A Cummings, argued, Missoula, Montana. For Respondent: Hon Robert L Woodahl, Attorney General, Helena, Montana. David V Gliko, Assistant Attorney General, Helena, Montana. Robert LDeschamps, 111, County Attorney, Missoula

## ,Montana. Michael G McLatchey, Deputy County Attorney, argued, Missoula, Montana. Amicus Curiae David J Patterson, argued, Missoula, Montana. Barney Reagan, argued, Helena, Montana.

Submitted: April 10, 

### 1972 Decided

### : 

## APR 

## 1 9

## 1972

Filed: 

## AP!? 

## 19 

### 1972

### Mr. Justice Frank I. Haswell delivered the Opinion of theCourt. This isan original application for an appropriate extraordinary 

### writ to determine the jurisdiction of a statedistrictcourt over criminal proceedings against an Indian foralleged crimes committed on the Flathead Indian Reservation. The districtcourt of Missoula County, the Honorable Jack L. 

### Green, districtjudge, held that the districtcourt had such criminal jurisdiction and denied defendant's motion todismiss. Defendant now seeks review of the districtcourt's ruling in

### the proceeding before us. Thomas E. 

### McDonald, relator here, and the defendant in

### the district court, isan enrolled member of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation. On 

### June 12, 1971 he was arrested at his home on the reservation and subsequently charged with three counts of criminal saleof dangerous drugs and one count of criminal possession of dangerous drugs. Each of the four alleged offenses isa felony under Montana's Dangerous Drug Act, sections 54-132, 54-133, R.C.M. 

### 1947; and each

was alleged to have been committed on that part of the Flathead Indian Reservation lying within Missoula County. On 

### July 12, 1971, McDonald filed amotion todismiss the criminal action against him on the ground that the statecourts of Montana do not have jurisdiction. Following hearing thereon, the districtcourt of Missoula County denied defendant's motion todismiss. On 

### March 21, 1972 McDonald applied to this Court foran appropriate extraordinary writ to review the districtcourt's ruling. This court setthematter for adversary hearing on April 10, 1972 and invited briefs and oral argument from the United States districtattorney, the area directorof the Bureau of Indian Affairs, the superintendent of the Flathead Indian Reservation, as we11as counsel fortherespective parties. Subsequently leavewas granted tofilebriefs and participate in oral argument as amicus curiae to

### Mr. Barney Reagan, director of Montana Legal Services, and to

### Mr. David J. Patterson, Montana Defender Project.Briefs were filed and oral argument heard from Edward A. Cummings, attorney forMcDonald; M. Gene McLatchy, deputy county attorney of Missoula County; David J. Patterson, amicus curiae; and Barney Reagan, amicus curiae. Additionally David Gliko appeared for the Montana attorney general, and documentary material was filed 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 this proceeding is whether the statedistrictcourt has jurisdiction of a criminal case charging a Flathead Indian with alleged crimes committed on the Flathead Indian Reservation. Two issues underlie this ultimate question: (1) Did Montana acquirejurisdiction over such criminal proceedings pursuant 

### tolegislative enactments by the United States Congress and the Montana 

### 1egislature? (2) Did the Flathead Tribal Council subsequently revoke their consent to statejurisdiction? The historical background to these legal issues isnecessary as a preface to their determination. In 1889when Montana was admitted to statehood, the Montana Constitution contained, among other things, two provisions pertinent to the present controversy. Ordinance I, Sec. 2 provided that all Indian lands "shall remain under the absolutejurisdiction and control of the congress of the United States". Ordinance I, Sec. 6provided "That the ordinances in this articleshall be irrevocable without the consent of the United States and the people of the stateof Montana." In 1953the Congress of the United States enacted Public Law 280 (Actof August 15, 1953, 67 Stat. 588, 590, 18U.S.C., § 1162, 28 U.S.C., g 1360). Among other things, Public Law 280 provided a procedure whereby the stateof 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 bySec. 6 of Public Law 280, providing in pertinent part: "Notwithstanding the provision of any Enabling Act forthe admission of a State, the consent of the United States ishereby given tothe people of any Statetoamend, where necessary, their StateConstitution or existing statutes, as the casemay be, to remove any legal impediment to the assumption of 

## ** * criminal jurisdiction in accordance with the provisions of this Act 

## **

## *." Additionally, Sec. 

### 7 of Public Law 280 provides inpertinent part: "The consent of the United States ishereby given, to any other Statenot having jurisdiction with respect to criminal offenses

## * **, as provided for inthis Act, to assume jurisdiction atsuch time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the Stateto assumption thereof." In 1963 the Montana legislature enacted Chapter 81, 1963 Session Laws (now codified as sections 83-801 through 83-806, R.C.M. 1947) relating to criminal offenses by Indians on the Flathead Indian Reservation. 

### This legislation insubstance obligates and binds the stateof Montana to criminal jurisdiction over Indians on that portion of Indian country within the boundaries of the Flathead Indian Reservation in accordance with Public Law 280; describes themanner in which the statemay assume criminal jurisdiction; provides for the assumption of such jurisdiction 60 days following the governor's proclamation; and permits the Indian Tribe towithdraw its consent to suchjurisdiction within two years of the date of issuance of the governor's proclamation. Tribal consent to the assumption of criminal jurisdiction by the statecourts of Montana over Indians committing crimes on the Flathead Indian Reservation was granted by the enactment of Tribal Ordinance 40-A, dated May 16, 1964. The governor of Montana thereafter issued the required proclamation on June 30, 1964. Almost a year later on May 5, 1965Tribal Ordinance 40-A (Revised) was enacted. This Ordinance was similar to the original Ordinance 40-A except for clarifying language limiting itsscope tocriminal laws and repealing the original Ordinance 40-A. The governor of Montana thereafter issued another proclamation accordingly dated October 8, 1965.

### Several months lateron June 22, 1966, Tribal Resolution 1973

was enacted expressly rescinding Tribal Ordinances 40-A and 40-A (Revised). There isno evidence that this Tribal Resolution was ever transmitted to

orreceived by the governor of Montana; nor was any proclamation of the governor made in connection with

### this Resolution. On 

### June 30, 1966 Tribal Resolution 1997was enacted which expressly rescinded Tribal Resolution 1973enacted eight days previously. Again no governor's proclamation was issued concerning Tribal Resolution 1997. On 

### September 15, 1967 Tribal Resolution 2318 was enacted requesting the governor of Montana toextend the time limit forwithdrawal from statejurisdiction for an additional year after October 7, 1967, and withdrawing itsconsent to such statejurisdiction. Itfurther provided that this Tribal Resolution was null and void if the governor extended such time limit

as requested. On 

### October 8, 1967 thegovernor issued a third proclamation extending the time limit for the Tribe's withdrawal of their consent to state jurisdiction for an additional year from October 7, 1967. Finally, on April 30, 1971, theTribal Council passed amotion "to seek retrocession on StateConcurrent Jurisdiction". The record discloses

no further action in conformity with thismotion. Additionally, we takejudicial notice that the stateof Montana has exercised criminal jurisdiction over Indians charged with 

### committing crimes on the Flathead Indian Reservation for several years prior to the instant case. An 

### unknown number of Indians have been tried, convicted, sentenced, imprisoned and fined for a variety of felonies and misdemeanors by statedistrictcourts and justice courts. The foregoing stateof affairs existed atthe time relator McDonald

was arrested and charged with four counts of violation of Montana's Dangerous Drug Act, all of which offenses were allegedly committed on the Flathead Indian Reservation. Directing our attention to the firstissue forreview, relator contends that the stateof Montana has never legally acquiredjurisdictionover criminal offenses committed by Indians on the Flathead Indian Reservation pursuant to United States Public Law 280. Relator argues that the provisions of Ordinance I,Sec. 2 of the Montana Constitution that all Indian lands "shall remain under the absolutejurisdiction and control of the congress of the United States" bars statecriminal jurisdiction over crimes committed by Indians thereon until such time as this bar isremoved by repeal or amendment of the Montana Constitution. According to relator,

a constitutional amendment by popular vote is necessary under Public Law 280 requiring appropriate constitutional or statutory amendment by "the people of the State";under Montana Constitution, Ordinance I, Sec. 6, requiring "the consent of 

## * ** the people of the said stateof Montana" to amendment of Ordinance I, Sec. 2, providing that all Indian lands "shall remain under the absolutejurisdiction and control of the congress of the United States"; under Montana Constitution, Art. 111, Sec. 2, providing that "The people of the statehave the sole and exc1usiv.e right

## *** to alter and abolish their constitution 

## ** *";and under Montana Constitution, Art. XIX, Sec. 9, requiring submission of constitutional amendments "to the qualified electors of the statefor their approval or rejection" atan election following approval by 213 of each house of the 1egislature. The foregoing contention ispremised on the proposition that a constitutional amendment isrequired, and accordingly the "consent of the people of the stateof Montana" cannot be granted by legislative enactment. 

### But is a constitutional amendment required? Ordinance I, Sec. 2 of the Montana Constitution simply provides that all Indian lands "shall remain under the absolute jurisdiction and control of the congress of the United States". This requirement was imposed by the United States upon the people of Montana as aprecondition of statehood. Over 60 years later the United States Congress, in the exercise of itsabsolutejurisdiction and control over Indian lands, enacted Public Law 280 granting the state of Montana criminal jurisdiction over offenses committed by

### Indians on Indian ~servations upon amendment of its constitution or statutes,where necessary, toremove any legal impediment. Congress could atany time repeal Public Law 280 and terminate any jurisdiction of the statecourts of Montana over crimes committed by Indians on Indian kservations. Thus Indian lands "remain under the absolutejurisdiction and control of the congress of the United States"within themeaning of Montana Constitution, Ordinance I, Sec. 2. Accordingly, no constitutional amendment isnecessary orrequired. The necessity of amending a stateconstitution to remove any legal impediment to assumption of criminal jurisdiction in

### accordance with Public Law 280 is 

### solelyamatter of statelaw, and federal courts arebound by the statesupreme court determination thereof. QuinaultTribe of Indians 

### v. Gallagher, 368 F.2d 648, (CCA, 1966) Cert. den. 387 U.S. 907. The underlying concerntof Congress in enacting Pub1icLaw 280 was not the manner in which the impediments areremoved, but

### thatsuch impediments be removed in a valid and binding manner under statelaw. Quinault, supra. Amendment of the state constitution isnot required under Public Law 280. Quinault,supra. The stateof Washington, under likeconstitutional provisions as Montana's, has held that the "consentof the people" necessary to revoke Washington's constitutional requirement that Indian 1 ands "shall remain under the absolutejurisdiction and control of the Congress of the United States"may be accomplished by legislativeenactment and does not require a vote of the people on a constitutional amendment. State

### v. Paul, 53

### Wash.2d 789, 337 P.2d 33 (1959);Makah Indian Tribe 

### v. State, 76 Wash.2d 485, 457 P.2d 

### 590 (1969). While we recognize we arenot bound by this determination and that "consent of the people" does not necessarilymean the same thing 

### in Washington's constitution as it

### does in

### Montana's constitution, the reasoning in Paul and Makah 

### is nonetheless persuasive. The constitutional provisions and case authorities cited in

### the brief of ami'cus curiae tothe contrary arenot controlling where, as here,we have held no constitutional amendment necessary. Montana Constitution, Art. 111, Sec. 2; Art. XIX, Sec. 9, Art. 111, Sec. 1;Jones 

### v. Land Commissioners, 128Mont. 462, 279 P.2d 393. Still remaining is a statuteoriginally enacted in 1895which was reenacted and is

### now codified as section 83-301, R.C.M. 1947, providing that the people, as a political body, consists of electors and citizens not electors. Fron this and miscellaneous constitutional provisions (Art. 111; Art. V, Sec. 1;Art. VIII, Sec. 2) and cited cases (PioneerMotors, Inc. 

### v. ~icjhRkk.,118Mont. 333, 165 P.2d 796; Thomas 

### v. Bd. of Examiners, 122 Mont. 564, 207 P.2d 553; Cottingham 

### v. StateBd. of Exam., 134 Mont. 1,328 P.2d 907), itis argued that the state legislature is not the "people" whose consent is required to revoke Montana Constitution, Ordinance I, Sec. 2. We cannot concur in this contention. In the firstplace, the consent of the people required for a constitutional amendment is not required under Montana Constitution, Ordinance I, Sec. 6 because a constitutional amendment isunnecessary. Secondly, the consent of the people of the state required by Pub1icLaw 280 does not require a constitutional amendment but simply requires removal of any impediment to statejurisdiction in some way that isvalid and binding under statelaw. Quinault, supra. Finally, if the people as a political body consist of both (1) electors and (2) citizens who are not electors, how can the latter give their consent except through the representatives and senators from the district in which they reside in the statelegislature? Accordingly we hold that Ch. 81, 1963Session Laws, is a valid and binding consent of the people of Montana to criminal jurisdiction by statecourts over Indians committing criminal offenses on the Flathead Indian Reservation pursuant to Public Law 280. We further hold that such state court criminal jurisdiction attached 60 days after the governor's proclamation, dated May 16, 1964, pursuant to Ch. 81, 1963 Session Laws. Proceeding to the second issue, relator contends that the Flathead Tribal Counci1 revoked their consent to such statecriminal jurisdiction byTribal Resolution 1973, dated June 22, 1966, orTribal Resolution 2318, dated September 15, 1967. The privilege of withdrawal of such consent isnot required under Pub1icLaw 280, butwas gratuitously extended to the Flathead Tribe by the provisions of Ch. 81, 1963Session Laws of the Montana legislature. Itis exclusively governed by the provisions of such legislation,now codified as section 83-806, R.C.M. 1947, authorizing withdrawal of consent by the Tribe within two years after the state assumed jurisdiction. Tribal Resolution 1973of June 22, 1966 was ineffective and did not constitute a valid withdrawal of such consent. This Tribal Resolution

was never transmitted to the governor nor was any gubernatorial proclamation ever issued concerning this Tribal Resolution. The superintendent of the Flathead Indian Reservation refused to approve it. The Tribal Council rescinded thisTribal Resolution eight days after itsenactment. For those

reasons we hold that thisTribal Resolution did not constitute a valid withdrawal of Tribal consent. Tribal Resolution 2318 on September 15, 1967was 1 ikewise ineffective towithdraw Tribal consent under section 83-806, R.C.M. 1947. Itwas enacted more than two years afterthe state assumed jurisdiction. The governor had no power or authority toextend the time 1 imi

### t forwithdrawal of Tribal consent for an additional year under section 83-806, R.C.M. 1947 or otherwise. 

### On September 15, 1967 statejurisdiction had been in effect for

more than two years. For the foregoing reasons we hold that the Flathead Tribal Council did not validly withdraw their consent to statecriminal jurisdiction over Indians committing offenses on the Flathead Indian Reservation. County. Accordingly, we hold that the districtcourt of Missoula/has jurisdiction over criminal cause #3817 wherein Thomas E. McDonald ischarged with four counts of violation of Montana's Dangerous Drug Act. This cause is remanded to the districtcourt of Missoula County forfurther proceedings therein. 

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