No 12244 

IN THE 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 L Deschamps, 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!? 1 9 1972 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an original appl ication for an appropriate extraordinary 

writ to determine the jurisdiction of a state district court over criminal 

proceedings against an Indian for alleged crimes committed on the Flathead 

Indian Reservation. The district court of Mi ssoul a County, the Honorable 

Jack L. Green, district judge, held that the district court had such criminal jurisdiction and denied defendant's motion to dismiss. Defendant now 

seeks review of the district court's ruling in the proceeding before us. 

Thomas E. McDonald, relator here, and the defendant in the district 

court, is an enrolled member of the Confederated Sal ish 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 sale of dangerous drugs and one count of criminal possession of 

dangerous drugs. Each of the four alleged offenses is a 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 a motion to dismiss the criminal 

action against him on the ground that the state courts of Montana do not have 

jurisdiction. Following hearing thereon, the district court of Missoula 

County denied defendant's motion to dismiss. On March 21, 1972 McDonald 

applied to this Court for an appropriate extraordinary writ to review the 

district court's ruling. 

This court set the matter for adversary hearing on April 10, 1972 

and invited briefs and oral argument from the United States district attorney, the area director of the Bureau of Indian Affairs, the superintendent 

of the Flathead Indian Reservation, as we1 1 as counsel for the respective 

parties. Subsequently leave was granted to file briefs 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 

for McDonald; 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 state district court 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 acquire jurisdiction over such criminal proceedings pursuant to legislative enactments by the United States Congress and 

the Montana 1 egislature? 

(2) Did the Flathead Tribal Council subsequently revoke their 

consent to state jurisdiction? 

The historical background to these legal issues is necessary as a 

preface to their determination. In 1889 when 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 absolute jurisdiction and control of 

the congress of the United States". Ordinance I, Sec. 6 provided "That the 

ordinances in this article shall be irrevocable without the consent of the 

United States and the people of the state of Montana." 

In 1953 the Congress of the United States enacted Public Law 280 

(Act of August 15, 1953, 67 Stat. 588, 590, 18 U.S.C., § 1162, 28 U.S.C., g 

1360). Among other things, Public Law 280 provided a procedure whereby the 

state 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 part: 

"Notwithstanding the provision of any Enabling Act 

for the admission of a State, the consent of the 

United States is hereby given to the people of any 

State to amend, where necessary, their State Constitution or existing statutes, as the case may 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 in pertinent part: 

"The consent of the United States is hereby given, 

to any other State not having jurisdiction with 

respect to criminal offenses * * *, as provided for 

in this Act, to assume jurisdiction at such time 

and in such manner as the people of the State shall, 

by affirmative legislative action, obligate and bind 

the State to 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 in substance obligates and binds the state of 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 the manner in which the state may assume criminal jurisdiction; provides for the assumption of such jurisdiction 60 days following 

the governor's proclamation; and permits the Indian Tribe to withdraw its 

consent to such jurisdiction within two years of the date of issuance of the 

governor ' s procl amati on. 

Tribal consent to the assumption of criminal jurisdiction by the 

state courts 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 procl amation on June 30, 1964. Almost a year later on May 5, 1965 Tribal Ordinance 

40-A (Revised) was enacted. This Ordinance was similar to the original 

Ordinance 40-A except for clarifying language limiting its scope to criminal 

laws and repealing the original Ordinance 40-A. The governor of Montana 

thereafter issued another proclamation accordingly dated October 8, 1965. 
Several months later on June 22, 1966, Tribal Resolution 1973 

was enacted expressly rescinding Tribal Ordinances 40-A and 40-A (Revised). 

There is no evidence that this Tribal Resolution was ever transmitted to 

or received by the governor of Montana; nor was any proclamation of the 

governor made in connection with this 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 requesting the governor of Montana to extend the time limit for withdrawal from 

state jurisdiction for an additional year after October 7, 1967, and withdrawing its consent to such state jurisdiction. It further provided that this 

Tribal Resolution was null and void if the governor extended such time limit 

as requested. On October 8, 1967 the governor 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, the Tribal Council passed a motion "to 

seek retrocession on State Concurrent Jurisdiction". The record discloses 

no further action in conformity with this motion. 

Additionally, we take judicial notice that the state of 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 state district courts and justice courts. 

The foregoing state of affairs existed at the 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 first issue for review, relator 

contends that the state of Montana has never legally acquired jurisdiction 
over 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 absolute jurisdiction and control of 

the congress of the United States" bars state criminal jurisdiction over 

crimes committed by Indians thereon until such time as this bar is removed 

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 state of Montana" to 

amendment of Ordinance I, Sec. 2, providing that all 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 state have 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 state for their approval or rejection" at an 

election following approval by 213 of each house of the 1 egislature. 

The foregoing contention is premised on the proposition that a 

constitutional amendment is required, and accordingly the "consent of the 

people of the state of 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 a precondition of statehood. 

Over 60 years later the United States Congress, in the exercise of its absolute jurisdiction 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, to remove any legal impediment. Congress could 

at any time repeal Public Law 280 and terminate any jurisdiction of the 

state courts of Montana over crimes committed by Indians on Indian kservations. Thus Indian lands "remain under the absolute jurisdiction and 

control of the congress of the United States" within the meaning of Montana 

Constitution, Ordinance I, Sec. 2. Accordingly, no constitutional amendment is necessary or required. 

The necessity of amending a state constitution to remove any legal 

impediment to assumption of criminal jurisdiction in accordance with Public 

Law 280 is solely a matter of state law, and federal courts are bound by the 

state 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 ic Law 280 was not the manner in which 

the impediments are removed, but that such impediments be removed in a valid 

and binding manner under state law. Quinault, supra. Amendment of the state 

constitution is not required under Public Law 280. Quinault, supra. 

The state of Washington, under like constitutional provisions as 

Montana's, has held that the "consent of the people" necessary to revoke Washington's constitutional requirement that Indian 1 ands "shall remain under the 

absolute jurisdiction and control of the Congress of the United States" may 

be accomplished by legislative enactment 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 are not bound by this determination and that "consent 

of the people" does not necessarily mean 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 to the contrary are not 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, 128 Mont. 462, 279 P.2d 393. Still remaining is a statute originally enacted in 1895 which 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 (Pioneer Motors, Inc. v. ~icjhRkk., 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), it is 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 first place, the consent of the people required for a constitutional amendment is not required 

under Montana Constitution, Ordinance I, Sec. 6 because a constitutional 

amendment is unnecessary. Secondly, the consent of the people of the state 

required by Pub1 ic Law 280 does not require a constitutional amendment but 

simply requires removal of any impediment to state jurisdiction in some way 

that is valid and binding under state law. Quinault, supra. Finally, if 

the people as a pol i tical 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 state legislature? Accordingly we hold that Ch. 81, 1963 Session Laws, 

is a valid and binding consent of the people of Montana to criminal jurisdiction by state courts 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 Counci 1 revoked their consent to such state criminal jurisdiction by 
Tribal Resolution 1973, dated June 22, 1966, or Tribal Resolution 2318, 

dated September 15, 1967. 

The privilege of withdrawal of such consent is not required 

under Pub1 ic Law 280, but was gratuitously extended to the Flathead Tribe 

by the provisions of Ch. 81, 1963 Session Laws of the Montana legislature. 

It is 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 1973 of 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 this Tribal Resolution eight days after its enactment. For those 

reasons we hold that this Tribal Resolution did not constitute a valid withdrawal of Tribal consent. 

Tribal Resolution 2318 on September 15, 1967 was 1 i kewise ineffective to withdraw Tribal consent under section 83-806, R.C.M. 1947. It was 

enacted more than two years after the state assumed jurisdiction. The governor had no power or authority to extend the time 1 imi t for withdrawal of 

Tribal consent for an additional year under section 83-806, R.C.M. 1947 or 

otherwise. On September 15, 1967 state jurisdiction 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 state criminal jurisdiction over 

Indians committing offenses on the Flathead Indian Reservation. 

County. Accordingly, we hold that the district court of Missoula/has jurisdiction over criminal cause #3817 wherein Thomas E. McDonald is charged 

with four counts of violation of Montana's Dangerous Drug Act. This cause 

is remanded to the district court of Missoula County for further proceedings 

therein. 

- 8 - 
Associate Justice