Summary
holding that New York has jurisdiction to try an Indian who is charged with murdering another Indian on a New York Indian reservation, but not stating that New York had exclusive jurisdiction
Summary of this case from U.S. v. BurnsOpinion
September 26, 1980
Appeal from the Onondaga Supreme Court.
Present — Dillon, P.J., Cardamone, Simons, Doerr and Moule, JJ. [ 104 Misc.2d 305.]
Order unanimously reversed and indictment reinstated. Memorandum: Defendant, an American Indian, was indicted for having committed within the territory of the Onondaga Indian Reservation the crimes of murder, robbery, assault and grand larceny. The indictment was dismissed by the court, sua sponte, at a motion term, upon the finding that "as a matter of law, the federal government has exclusive jurisdiction over the crimes charged". Initially, we reject defendant's contention that the order dismissing the indictment is not appealable by the People. That the order was entered upon the court's own motion and not upon motion of defendant does not divest the People of their historic right to appeal in circumstances where the order is entered before commencement of trial and finally determines the People's case (see former Code Crim Pro, § 518). It is sufficient to preserve the People's right to appeal under CPL 450.20 (subd 1), that the ground upon which the dismissal was based (CPL 210.20, subd 1, par [h]) is one upon which defendant was authorized to move for such relief (cf. People v. Coppa, 45 N.Y.2d 244, 249-250). Turning to the merits, it is clear that the court erred in dismissing the indictment. While it was long recognized in New York that the Federal Government had exclusive jurisdiction to try Indians for crimes committed on Indian reservation lands (People ex rel. Cusick v. Daly, 212 N.Y. 183; U.S. Code, tit 18, § 1153), the power to assert jurisdiction in such cases was granted to New York in 1948 by the enactment of section 232 of title 25 of the United States Code (Washington v. Yakima Indian Nation, 439 U.S. 463; Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 679; Kake Vil. v. Egan, 369 U.S. 60, 73-74; Williams v. Lee, 358 U.S. 217, 220-221; United States v. Devonian Gas Oil Co., 424 F.2d 464, 468; Anderson v. Gladden, 188 F. Supp. 666, 677, affd 293 F.2d 463; People v. Cook, 81 Misc.2d 235, 240-241).