Appeal from the United States * District Court for the * District of Minnesota.
The opinion of the court was delivered by: Loken, Circuit Judge.
Before LOKEN and BEAM, Circuit Judges, and PERRY,*fn1 District Judge.
Joseph Joshua Jackson, an Indian, was charged with brutally assaulting Danielle King in Redby, Minnesota, a town within the original boundaries of the Red Lake Indian Reservation. The district court denied Jackson's motion to dismiss the indictment, concluding as a matter of law that the alleged assault occurred within the boundaries of the Reservation and therefore in "Indian country." United States v. Jackson, Crim. No. 10-151, Report and Recommendation (D. Minn. Aug. 5, 2010), adopted by Order dated Aug. 23, 2010. Jackson then entered a conditional plea of guilty to assault with a dangerous weapon, 18 U.S.C. §§ 113(a)(3) and 1153(a), and to discharging a firearm during the commission of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii). The plea agreement provided that Jackson may appeal the order denying his motion to dismiss and, if he prevails, "may withdraw his plea." Reviewing this issue de novo, we conclude the district court made its Indian country ruling on an inadequate record and remand with directions to permit Jackson to withdraw his guilty plea. We therefore need not address Jackson's additional contention that the court imposed a substantively unreasonable sentence.
The federal government has jurisdiction over major crimes committed by Indians in Indian country, including assault with a dangerous weapon. 18 U.S.C. § 1153(a). As this is an element of the offense, the government has the burden to prove that a crime was committed in Indian country. United States v. Jewett, 438 F.2d 495, 497 (8th Cir. 1971). "Indian country" includes "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." 18 U.S.C. § 1151(a).*fn2 Jackson argues the assault occurred on land that Congress conveyed to the Minneapolis, Red Lake and Manitoba Railway Company in a 1905 statute that diminished the Red Lake Reservation ("the 1905 Act"), depriving the district court of subject matter jurisdiction because "the situs of the offenses is no longer a part of the reservation." United States v. Wounded Knee, 596 F.2d 790, 792 (8th Cir.), cert. denied, 442 U.S. 921 (1979); see Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, 1030 (8th Cir. 1999), cert. denied, 530 U.S. 1261 (2000).
Indian reservation lands are owned by the United States and held in trust for the benefit of specific tribes or bands. "Congress can unilaterally alter reservation boundaries." Hagen v. Utah, 510 U.S. 399, 404 (1994), citing Lone Wolf v. Hitchcock, 187 U.S. 553, 567-68 (1903). In 1887, responding to tribal financial difficulties and westward migration of white settlers, Congress enacted the General Allotment Act (known as the Dawes Act), ch. 119, 24 Stat. 388, which authorized allotments of reservation land to individual Indians and the sale of surplus, unalloted reservation land to non-Indians. See Mattz v. Arnett, 412 U.S. 481, 496-97 (1973). In modern times, the Supreme Court has decided seven cases raising the question whether various surplus lands Acts diminished or entirely terminated particular reservations. In three cases, the answer was no. Solem v. Bartlett, 465 U.S. 463, 481 (1984); Mattz, 412 U.S. at 506; Seymour v. Supt. of Wash. State Pen., 368 U.S. 351, 356 (1962). In the other four, including the most recent two, the answer was yes. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 358 (1998); Hagen, 510 U.S. at 521; Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 614-15 (1977); DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425, 445 (1975).
In its most recent decision, Yankton Sioux Tribe, 522 U.S. at 343-44, a unanimous Court summarized the relevant inquiry:
[I]f a surplus land Act simply offered non-Indians the opportunity to purchase land within established reservation boundaries, then the entire opened area remained Indian country. Our touchstone to determine whether a given statute diminished or retained reservation boundaries is congressional purpose. Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights. Accordingly, only Congress can alter the terms of an Indian treaty by diminishing a reservation, and its intent to do so must be clear and plain.
. Our inquiry is informed by the understanding that, at the turn of [the twentieth] century, Congress did not view the distinction between
acquiring Indian property and assuming jurisdiction over Indian territory as a critical one . . . . Congress naturally failed to be meticulous in clarifying whether a particular piece of legislation formally sliced a certain parcel of land off one reservation. Thus, although the most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands, we have held that we will also consider the historical context surrounding the passage of the surplus land Acts, and, to a lesser extent, the subsequent treatment of the area in question and the pattern of settlement there. Throughout this inquiry, we resolve any ambiguities in favor of the Indians, and we will not lightly find diminishment. [Citations and quotations omitted.]
Unlike Yankton Sioux Tribe and the other six Supreme Court decisions, this case does not involve a surplus lands Act. Rather, like Wounded Knee, 596 F.2d at 792-93, which involved Flood Control Act takings, the 1905 Act authorized a sale of reservation land for a purpose other than opening surplus land to white settlers, namely, railroad improvement. And unlike Wounded Knee, the sale at issue here was to a private party, the railroad, not to an agency of the federal government. Nevertheless, as in Wounded Knee, we conclude the issue is governed by the above- quoted principles developed by the Supreme Court in surplus lands Act cases.
The Red Lake Band of Chippewa Indians once occupied thirteen million acres of land in northwestern Minnesota. Pursuant to an 1863 treaty, the Band ceded approximately ten million acres to the United States, reserving a distinct tract of over three million acres. The reserved land became known as the Red Lake Reservation. See United States v. White, 508 F.2d 453, 456-57 & nn. 3, 4 (8th Cir. 1974). In the half-century following the 1863 treaty, the Red Lake Band ceded two additional large portions of Reservation land to the United States. First, the Nelson Act of January 14, 1889, ch. 24, 25 Stat. 642, implemented the Band's agreement to "grant, cede, relinquish, and convey to the United States all [their] right, title, and interest in and to" over two million acres. Second, in a 1902 agreement ratified by the Act of ...