United States v. Johnnie Lee Bowman, Jr.

dissenting:

The basic premise underlying the majority opinion is that the Supreme Court implicitly resolved the jurisdictional question adversely to the appellant in Keeble v. United States, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973). The structure of federal jurisdiction over criminal infractions by Indians, as reflected in the Keeble case itself, 412 U.S. at 209-212 , 93 S.Ct. at 1996-1997 , requires that the jurisdictional question be explicitly rather than implicitly resolved. Furthermore, I think it is clear from subsequent Supreme Court opinions that the issue presented here has in fact not been decided either implicitly or explicitly by the Supreme Court. In the absence of *801 controlling Supreme Court authority, I think the considerations articulated in dictum in this Court’s opinion in United States v. Johnson, 637 F.2d 1224, 1243-1244 (1980) compel reversal here. I therefore dissent.

In the absence of an explicit Congressional, not judicial, directive, Indian tribes have exclusive criminal jurisdiction over offenses committed by one Indian against another Indian within Indian country. United States v. Wheeler, 435 U.S. 313, 325 , 98 S.Ct. 1079, 1087 , 55…

Appellant, an Indian, was charged under the Major Crimes Act of 1885, 18 U.S.C. § 1153 , with assault resulting in serious bodily injury to another Indian. He requested and was granted a jury instruction on the lesser included offense of assault by striking, beating, or wounding. The jury convicted him of the lesser included offense, judgment was entered and he was sentenced for that offense. 1 He now contends that the district court lacked jurisdiction to sentence him on any crime not enumerated in § 1153.

We affirm because we conclude that the Supreme Court implicitly resolved the jurisdictional question against appellant’s position when it decided Keeble v. United States, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973). In that case the Eighth Circuit had reaffirmed its earlier holding that jurisdiction to convict of lesser included offenses could not be inferred from the Major Crimes Act, which was to be strictly construed. 3 For that reason, the Court of Appeals concluded that the defendant was not entitled to a jury instruction regarding a lesser included offense. The Supreme Court reversed. It held that when the facts and the evidence merit such an instruction, the…

679 F.2d 798 UNITED STATES of America, Plaintiff-Appellee, v. Johnnie Lee BOWMAN, Jr., Defendant-Appellant. No. 81-1257. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 14, 1981. Decided June 17, 1982. Colin F. Campbell, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant. Arthur G. Garcia, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before WALLACE and SCHROEDER, Circuit Judges, and HENDERSON, * District Judge. SCHROEDER, Circuit Judge: 1 Appellant, an Indian, was charged under the Major Crimes Act of 1885, 18 U.S.C. § 1153 , with assault resulting in serious bodily injury to another Indian. He requested and was granted a jury instruction on the lesser included offense of assault by striking, beating, or wounding. The jury convicted him of the lesser included offense, judgment was entered and he was sentenced for that offense. 1 He now contends that the district court lacked jurisdiction to sentence him on any crime not enumerated in § 1153. 2 2 We affirm because we conclude that the Supreme Court implicitly resolved the jurisdictional…