Ze Zheng v. Eric H. Holder, Jr.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3718
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Joseph Joshua Jackson, *
*
Defendant - Appellant. *
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Submitted: May 18, 2012
Filed: October 2, 2012
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Before LOKEN and BEAM, Circuit Judges, and PERRY,* District Judge.
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LOKEN, Circuit 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
*The Honorable Catherine D. Perry, Chief Judge of the United States District
Court for the Eastern District of Missouri, sitting by designation.

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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.
I.
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). 1 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).
1§ 1151(b) and (c) broaden the definition of Indian country, but the government
in this appeal relies exclusively on § 1151(a).
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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
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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.
II.
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
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to” over two million acres. Second, in a 1902 agreement ratified by the Act of
February 20, 1904, ch. 161, 33 Stat. 46, the Band agreed to “cede, surrender, grant,
and convey to the United States all claim, right, title and interest in and to” over
250,000 additional acres of the Reservation.
Although the 1889 and 1904 Acts provided for allotment of the remaining
Reservation land to individual Indians, the Band successfully resisted allotment; tribal
members today continue to hold nearly all Reservation land communally. See Nord
v. Kelly, 520 F.3d 848, 858 (8th Cir. 2008) (Murphy, J., concurring); State v. Lussier,
130 N.W.2d 484, 486 (Minn. 1964). In Minnesota Indian country, the federal
government’s jurisdiction over major crimes is exclusive only within the modern
boundaries of the Red Lake Reservation. See 18 U.S.C. § 1162(a), (d).
We deal here with a different type of statute. By mid-1903, the Secretary of the
Interior had granted the Minneapolis, Red Lake and Manitoba Railway Company a
narrow right-of-way to operate a railroad through a portion of the Red Lake
Reservation, as authorized by the Act of March 2, 1899, ch. 374, 30 Stat. 990 (now
codified at 25 U.S.C. § 312). The 1905 Act was enacted, after the railroad began
operations, “to enable [the railroad] to acquire some more land for further terminal
facilities.” 39 Cong. Rec. 1854 (1905). The Act provided in relevant part:
Be it enacted . . . That there is hereby granted to the Minneapolis, Red
Lake and Manitoba Railway Company . . . its successors and assigns,
owning and operating . . . a line of railroad in the State of Minnesota,
having its northern terminus at a point on the shore of Lower Red Lake,
Minnesota . . . in the Red Lake Indian Reservation, as more particularly
shown upon a map of definite location approved by the Secretary of the
Interior . . . the right to select and take from the lands of the Red Lake
Indian Reservation grounds adjacent to its northern terminus . . . not to
exceed in extent three hundred and twenty acres.
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Sec. 2. That before titles to said lands shall vest in the said
railway company, and before said company shall occupy or use said
lands, compensation therefor shall be made to the tribes of Indians
residing upon the said reservation and to any individual occupant of any
said lands. The amount of compensation . . . shall be . . . determined in
such manner as the Secretary of the Interior may direct and be subject to
his final approval.
Sec. 3. That said company shall file maps . . . showing the definite
location of the grounds so selected and taken, which said maps shall be
subject to the approval of the Secretary of the Interior; but no right of
any kind shall vest in said railway company . . . until the maps showing
the same shall have been approved by the Secretary of the Interior and
until compensation aforesaid shall have been fixed and paid.
Sec. 4. That the right herein granted shall be forfeited by said
company unless the maps showing the grounds authorized to be taken .
. . shall be filed and compensation aforesaid made within one year after
the passage of this Act.
Sec. 5. The laws of the United States now in force, or that may
hereafter be enacted, prohibiting the introduction and sale of intoxicating
liquors in the Indian country, shall be in full force and effect throughout
the territory hereby granted, until otherwise directed by Congress or the
President of the United States, and for that purpose said tract shall be
held to be and to remain a part of the diminished Red Lake Indian
Reservation.
Act of February 8, 1905, ch. 556, 33 Stat. 708. Following the Act’s passage, the
railroad selected and purchased for $6,816.20, with the Secretary of the Interior’s
approval, 300.5 acres of Reservation land (excluding the railroad’s prior right-of-way)
in present-day Redby; for unexplained reasons, the Department of the Interior denied
the railroad’s application for a patent covering this land. See Ann. Rep. of the Dept.
of the Interior for Year Ended June 30, 1905, H.R. Rep. Doc. No. 59-5, at 93 (1906).
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In his motion to dismiss the indictment, Jackson argued that the Act diminished
the Red Lake Reservation, relying primarily on the “select and take from” language
in Section 1, and Section 5’s liquor prohibition and reference to “the diminished Red
Lake Indian Reservation.” As the incident occurred on land in Redby that was
removed from the Reservation, Jackson argues, the alleged offenses did not occur in
Indian country, and the federal government lacked jurisdiction to prosecute. In
support, Jackson submitted documents showing that some Redby properties are
privately owned and Beltrami County tax assessments on Redby properties. In
response, the government argued that private ownership does not eliminate federal
jurisdiction, Congress in the 1905 Act had not clearly diminished the Red Lake
Reservation, and the court “can take judicial notice that Redby is within the
reservation boundary.”
Precisely where the alleged offenses occurred is a disputed fact, but for
purposes of this appeal, it is undisputed they occurred on privately owned land in
Redby. The record on appeal does not include document(s) conveying title of the
300.5 acres from the United States to the railroad, nor any information concerning the
subsequent ownership history of the land conveyed. Neither party provided probative
evidence regarding the current Indian character of the land. The State of Minnesota
has exercised no criminal jurisdiction over this land since the Supreme Court of
Minnesota held that it remained Indian country in Lussier, 130 N.W.2d at 488.2
The magistrate judge’s Report and Recommendation noted the absence of
evidence relating to the subsequent ownership and treatment of the land granted under
the 1905 Act. The court concluded that neither the 1905 Act nor its sparse legislative
history “evince any clear congressional intent to diminish the Red Lake Reservation”
because the “select and take from” language in Section 1 refers only to a change of
2Lussier’s interpretation of federal law, while relevant extrinsic evidence under
Yankton Sioux, obviously does not control our interpretation of a federal statute.
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ownership, and Section 5’s liquor prohibition is inconclusive standing alone.
Therefore, the alleged offenses occurred in Indian country even if committed on
privately owned land in Redby.
III.
The issue on appeal is whether the 1905 Act diminished the boundaries of the
Red Lake Indian Reservation. In response to Jackson’s motion to dismiss, the district
court resolved this issue in the government’s favor, prior to trial, as a matter of law,
and on a minimal factual record, without discussing the propriety of doing so.
Construing an ambiguous statute is no doubt an issue of law (though we do not decide
that question). But even if it is, if statutory ambiguity requires consideration of
extrinsic evidence under the Supreme Court’s diminishment jurisprudence, then ruling
that the offenses occurred in Indian country as a matter of law based on a record
consisting of little more than the statute’s text was prejudicial error.
Turning to the merits of the issue, the Supreme Court’s surplus lands Act
decisions instruct us to look first to the language of the 1905 Act, mindful that
diminishment is not lightly presumed. See United States ex rel. Condon v. Erickson,
478 F.2d 684, 689 (8th Cir. 1973) (“a holding favoring federal jurisdiction is required
unless Congress has expressly or by clear implication diminished the boundaries of
the reservation”) (emphasis in original). When a surplus lands Act provides that a
Tribe cedes its entire interest in land to the United States for a sum certain, “a nearly
conclusive, or almost insurmountable, presumption of diminishment arises.” Yankton
Sioux, 522 U.S. at 344 (quotations omitted). As previously described, the 1899 and
1904 Acts contained such provisions and thus “clearly diminished” the Red Lake
Reservation. Red Lake Band v. Minnesota, 614 F.2d 1161, 1162 & n.2 (8th Cir.),
cert. denied, 449 U.S. 905 (1980); United States v. Minnesota, 466 F. Supp. 1382,
1385 (D. Minn. 1979). By contrast, Section 1 of the 1905 Act granted a private
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railroad the right to “select and take” up to 320 acres of “grounds adjacent to its
northern terminus” on the Red Lake Reservation.
The district court concluded that Section 1, on its face, like the surplus lands
Acts in Mattz, Seymour, and Solem, “simply provided that parcels of land, within the
respective Reservations, could be sold to non-Indians,” and therefore “does not even
suggest, let alone ‘present an explicit expression of,’ congressional intent to diminish
the Red Lake Reservation.” Jackson, Rept. & Rec. at 15, quoting Solem, 465 U.S. at
476. Our difficulty with this analysis is that it ignores the distinct context of the 1905
Act -- relations between the federal government, railroads, and Indian tribes.
During the nineteenth century, to foster development of the western United
States, Congress acted to aid the construction of railroads through grants of public
lands to companies that would commit to building railroads and telegraph lines. See,
e.g., Act of July 1, 1862, ch. 120, 12 Stat. 489, relating to construction of the trans-
continental railroad; Act of Mar. 3, 1875, ch. 152, 18 Stat. 482, generally delegating
to the Secretary of the Interior authority to grant public lands to railroads. The Act of
Mar. 2, 1899, extended the Secretary’s authority to grant railroad rights-of-way to
include rights-of-way “through any Indian reservation in any State or Territory.”
Indian consent was not a necessary prerequisite to these grants.
Rights-of-way are typically easements that do not convey fee title and may be
limited to a specific use or purpose. Thus, the Act of Mar. 3, 1875, gave the Secretary
authority to grant railroad rights-of-way through public lands “to the extent of one
hundred feet on each side of the central line of said road.” Section 2 of the Act of
Mar. 2, 1899, limited the Secretary’s authority to grant rights-of-way through Indian
reservations to “fifty feet in width on each side of the center line,” or one hundred
feet “where there are heavy cuts and fills.” And Section 2 of the Act of Feb. 28, 1902,
ch. 134, 32 Stat. 43, granting a right of way through Indian Territory in Oklahoma,
was even more limited, authorizing the railroad “to take and use for all purposes of a
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railway, and for no other purpose, a right of way one hundred feet in width . . . and
when any portion thereof shall cease to be so used such portion shall revert to the
nation or tribe of Indians.” We would not construe a statute granting land for this type
of railroad right-of-way as diminishing the reservation through which the line will run,
even if the railroad is built in accordance with the grant, later abandoned, and the
railroad or its successor in interest retains title to the right-of-way land after it is no
longer used for railroading.3
But our conclusion that a railroad right-of-way would not diminish an Indian
reservation does not resolve the issue in this case. Congress in these statutes granting
rights-of-way conveyed even more land to the railroads. For example, in the Act of
July 1, 1862, the grant included “all necessary grounds for stations, buildings, [etc.],”
§ 2, plus “every alternate section of public land . . . to the amount of five alternate
sections per mile on each side of said railroad,” § 3. In the Act of Mar. 3, 1875, the
grant included “the right to take, from the public lands . . . ground adjacent to such
right of way for station-buildings, depots [etc.] not to exceed in amount twenty acres
for each station, to the extent of one station for each ten miles of its road.” And § 2
of the Act of Mar. 2, 1899, provided that a grant of Indian reservation land “may
include ground adjacent [to the right-of-way] for station buildings, depots [etc.] not
to exceed one hundred feet in width by a length of two thousand feet, and not more
than one station to be located within any one continuous length of ten miles of road.”
The 1905 Act did not grant the railroad a right-of-way; as the legislative history
makes clear, the railroad already had its right-of-way and was operating. The words
3This conclusion is consistent with the express inclusion of rights-of-way in the
boundaries of an Indian reservation as defined in 18 U.S.C. § 1151(a). However, it
may be uncertain whether this 1948 statute could have restored to reservation status
land conveyed for a railroad right-of-way in a prior act of Congress that reflected the
requisite “clear and plain” intent to diminish a reservation. We suspect that interesting
question will never need to be litigated.
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“select and take from” in Section 1 of the 1905 Act mirror and were obviously derived
from earlier Acts granting lands in addition to rights-of-way to railroads. See Stalker
v. Or. Short Line R.R., 225 U.S. 142, 148-50 (1912). The absence of a “sum certain”
in the 1905 Act is of no significance because inclusion of a sum certain, often feasible
in surplus lands Acts, was replaced in these railroad statutes, with no change in
substance, by requiring the Secretary of the Interior to price the land selected and to
collect the determined price for the benefit of the Indians before conveying land to the
railroad. And it was well-established by 1905 that, upon approval of the railroad’s
selection by the Secretary, “the grounds so selected were segregated from the public
lands” and “withdraw[n] . . . from the market.” Id. at 153. The analysis of Section 1
in this railroading context does not establish that it is “language evidencing the present
and total surrender of all tribal interests,” Solem, 465 U.S. at 470. But it puts the
question of congressional intent-to-diminish far more in doubt than the district court
acknowledged.
We look next at the liquor prohibition in Section 5. As Jackson plausibly
argues, the prohibition was unnecessary if the Act did not diminish the Reservation
because the Act of July 23, 1892, ch.234, 27 Stat. 260-61, already prohibited the
introduction and sale of intoxicating liquors in Indian country. See Yankton Sioux,
522 U.S. at 350-51; Rosebud Sioux, 430 U.S. at 613 n. 47. 4 Adding to that inference
is the language Congress used in Section 5 to impose the liquor prohibition -- the land
selected and taken by the railroad “shall . . . remain a part of the diminished Red Lake
Indian Reservation” for the purpose of enforcing the “laws of the United States . . .
prohibiting the introduction and sale of intoxicating liquors in the Indian country”
(emphasis added). Just one year earlier, in the Act of 1904, Congress had used the
4On the other hand, because non-Indian ownership was a more significant factor
in that era, Congress in 1905 may have believed (or been concerned) that the 1892 Act
would not apply to land conveyed to the railroad whether or not the conveyance
diminished Reservation boundaries. See Bates v. Clark, 95 U.S. 204, 208-09 (1877);
Gaffey, 188 F.3d at 1024.
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term “diminished reservation” five times in provisions that clearly referred to the Red
Lake Reservation as diminished by that Act. See Art. I, Art. IV, Art. VI § 3.
Although it is possible to construe “the diminished reservation” in Section 5 of the
1905 Act as referring to the Reservation as diminished by the 1904 Act, it is far more
plausible to conclude that Congress used the term consistently in the two statutes, in
which case “the diminished reservation” in Section 5 refers to the Reservation as
diminished by the 1905 Act. Cf. Mattz, 412 U.S. at 504 & n.22. 5
Based on this broader statutory review, we conclude that Section 1 and Section
5 of the 1905 Act do not provide clear and plain evidence of congressional intent to
diminish the Red Lake Reservation’s boundaries by the grant of this rather substantial
Reservation acreage to expand the railroad’s terminal facilities. Thus, the district
court properly denied Jackson’s motion to dismiss the indictment. But the text of the
statute gives considerable indication of an intent to diminish, and the diminishment
issue appears never to have been considered in the context of a congressional grant of
land beyond the minimum needed for a railroad’s right-of-way.
With the statute’s text and legislative history inconclusive, Supreme Court
precedents mandate consideration of “the historical context surrounding the passage
of the [1905 Act], and, to a lesser extent, the subsequent treatment of the area in
question and the pattern of settlement there.” Yankton Sioux, 522 U.S. at 344
(quotations omitted); see also the additional factors discussed in Hagen, 510 U.S. at
420-21; Solem, 465 U.S. at 471-72; and Rosebud Sioux, 430 U.S. at 604-05. Here,
the government, having the burden to prove this element of the offense, failed to come
forward with extrinsic evidence of these additional factors that would permit a court
to conclude, as a matter of law, that the reservation was not diminished by the 1905
5Another question making proper interpretation of Section 5 even more
uncertain is whether the 1905 Congress in referring to the diminished reservation was
“referring to diminishment in common lands and not diminishment of reservation
boundaries.” Solem, 465 U.S. at 475 n.17, citing Erickson, 478 F.2d at 687.
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Act. Therefore, on this record, the district court erred in precluding Jackson’s Indian
country defense. In these circumstances, we conclude that Jackson should be granted
an opportunity to withdraw his guilty plea, consistent with his conditional plea
agreement.
The judgment of the district court is vacated and the case is remanded for
further proceedings not inconsistent with this opinion.
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