author: . GRIMSON, Judge. MORRIS, Judge

text:
    STATE of North Dakota, Plaintiff, v. Leonard LOHNES, Defendant.
    Cr. 264.
    Supreme Court of North Dakota.
    Feb. 18, 1955.

      Paul Benson, Atty. Gen., and Honorable Melvin Christianson, State’s Atty., Minne-waukan, for plaintiff.
    John B. Hart, Rolla, for defendant.
    Clyde Duffy, Devils Lake, amicus curiae.
   . GRIMSON, Judge.

This matter comes before us on a certified question under Chapter 32-24, NDRC 1943. An information was filed on the 25th day of October, 1954 in the County Court o.f Increased Jurisdiction of Benson County, North Dakota. The information charged the defendant with the commission of the crime of assault and battery. To this information the defendant entered a plea of guilty. Thereupon his attorney filed a motion in arrest of judgment on the ground that the court had no jurisdiction of the offense charged in the information for the reasons that the defendant and the complaining witness were both Indians enrolled upon the records of the Devils Lake Sioux Indian Reservation as members of the Devils Lake Sioux Indian tribe and wards of the government of the United States of America; that the offense charged “was committed on lands allotted to an Indian, the title to which is held in trust by the United States of America and is within the exclusive jurisdiction of the government of the United States of America”.

Thereafter the attorneys filed briefs and argued the motion before the court. On November 23, 1954, the court denied the motion. Counsel, both for the state and the defendant, then made application to the court for the certification to the supreme court of the following question:

“Does the Benson County Court, being a Court of increased jurisdiction, have jurisdiction over the offense charged in the information filed herein in view of The Organic Law (Chapter 86, 12 U.S.Stat. 239), the Enabling Act (25 U.S.Stat. 676), Article 16, Section 203 of the Constitution of North Dakota, the Act of Congress of May 31, 1946 (60 Stat. 229), the Act of Congress of February 19, 1867 (15 Stat. 505), the Act of Congress of February 14, 1873 (17 Stat. 456), and the Act of Congress of June 24, 1874 (18 Stat. 167).”

The court granted the application and certified the question to us for determination, “because this is a public question of great importance to the Indian People of the Fort Totten Indian Reservation, and to the law enforcement officials and the courts of Benson County, North Dakota, and because there is an issue of law involved in this case, the interpretation of which is in doubt and vital, and principally determinative of the issues in this case, * * *”

It' appears clearly that the proceedings were in accordance with the requirements of Chapter 32-24, NDRC 1943. State v. Elkin, 68 N.D. 93, 277 N.W. 89. . We will therefore proceed to answer the question.

What, is now North Dakota was in early times occupied and controlled by bands of roving Sioux Indians.

On March 2, 1861, Congress enacted Chapter 86, 12 U.S.Statutes at Large, page 239, providing for the organization of the Territory of Dakota and for temporary government thereof. That statute is known as the Organic Law. Among the provisions thereof is the following:

“Provided, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, * * * or to affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this act had never passed * *

In 1867 the Devils Lake Indian Reservation was established by a treaty with the Sissiton and Warpeton Bands of the Dakota or Sioux Indians. According1 to that treaty those bands had been friendly during the Sioux Indian outbreak in 1862 and had been of assistance to the United States. Furthermore, Sioux annuities and reservations had been confiscated without any provision having been made by congress for the support of those friendly bands who had consequently suffered from want of subsistence and clothing. Now they had asked, through their representatives, for recognition and some help to enable them to take up agricultural life. In consideration of these matters the Devils Lake and other North Dakota reservations were set up .for those friendly bands of Indians. In that treaty provisions were made for the gradual allotment of such lands to individual Indians who desired to engage in agriculture and funds were to be provided for their needs and assistance in making such change in their method of living. Provision was also made authorizing the Indians to adopt rules and regulations for the security of their lives and property and for the advancement of the civilization and agricultural prosperity of members of said bands. All such rules, however, were subject to the sanction of the government agent. This treaty was ratified by the Act of Congress April IS, 1867, 15 U.S. Statutes at Large, page 505.

On June 7, 1872, 17 Stat. 281, that treaty was amended to include a provision in which these-bands of Sioux Indians ceded, sold, .and relinquished to the United States all their right, title, and interest in the territory described in the Treaty of April-15, 1867, excepting therefrom that portion particularly described as a permanent reservation for occupancy and cultivation by them which was at that time being occupied and alloted to them under that treaty. In consideration of the amended treaty, an appropriation was made for the payment of the first installment of eighty thousand dollars to be used for the development of farming and civilization on the reservation. 17 U.S.Statutes at Large, page 456. A second installment payment under the Treaty of April 15, 1867, was made by the Act of Congress of June 22, 1874, 18 U.S.Statutes at Large, page 167. No other promises were made to the Indians in those treaties as to the disposition or government of the lands ceded.

By these various acts the Devils Lake. Sioux Indian tribes ceded to the United States all their right, title and interest to the lands constituting the Devils Lake Sioux Indian Reservation and congress was given absolute authority not only over the lands but also over the Indians occupying them as shown by the provision of the Organic Law heretofore quoted.

In 1889 congress provided for the division of the territory of Dakota into two states, North Dakota and South Dakota, and for the admission into the Union of North Dakota, South Dakota, Montana and Washington. 25 U.S.Statutes at Large, Chapter 180, page 676. This law, known as the Enabling Act, provided for the holding of constitutional conventions in the different states and made provisions for the states to be admitted into the Union “on an equal footing with the original States”.

It is also provided therein:

“And said conventions shall provide, by ordinances irrevocable without the consent of the United States and the people of said States:
“First. * * *
“Second. That the people inhabiting said proposed States do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said India» lands shall remain under the absolute jurisdiction and control of the Congress of the United States; * *

Then follow provisions to keep said lands tax exempt except as provided in the act or by other acts of congress.

In accordance therewith Article XVI, Section 203 of the Constitution of North Dakota provided the following with the same preamble of irrevocability:

“The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subj ect to the disposition of the United States, and that said Indian lands shall ■ remain under the absolute jurisdiction and control of the congress of the United States; * *

It is contended on behalf of the defendant that because of the provisions' in the Enabling Act and the Constitution, which we have italicized, North Dakota has no jurisdiction in any manner over the Indian lands or the Indians on the reservation.

Montana and South Dakota, admitted under the same enabling act as North Dakota, have the above provision in their Constitutions. Different aspects of the question here involved have been before the federal courts and the courts of these states.

A study of those sections of the Enabling Act and the Constitution and the interpretation thereof as given in those cases shows that congress retained for the United States, and the people of North Dakota disclaimed all right, title, and interest to the unappropriated public lands and to the Indian lands within the state and that it was agreed that such Indian lands should remain subject to the disposition and control of the United States and should never be taxed as long as the title remained in the United States.

There is no reservation, however, of jurisdiction or control in the United States over any part of the unappropriated public lands as distinguished from Indian lands. It has been repeatedly held that people settling on those public lands were subject to the laws of the state and that their personal property was subject to taxation. See State ex rel. Tompton v. Denoyer, 6 N.D. 586, 593, 72 N.W. 1014.

r The meaning of the provision in the Enabling Act and the Constitution that “said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States” is not so iidear, That such provision was not nec.es-sary .for the retention of title.to those lands in the United States, or the disclaimer thereof by the state, is shown by the fact mat such jurisdiction was not reserved e ver the unappropriated public lands.

To get the legislative intent in the use of that provision the facts existing as the background for its use may be considered. Hoellinger v. Molzhon, 77 N.D. 108, 41 N.W.2d 217, 19 A.L.R.2d 1147; 16 C.J.S., Constitutional Law, § 30, page 68.

The United States had taken over possession of these lands from the Indians and in return had assumed obligations to help the Indians change from a nomadic life to a life of agriculture. The government had bound itself by treaties to aid the Indians in the progress of that change in their habits of life and to protect them during that time. The government had in a sense assumed the position of guardian of. the Indian people. Under its guardianship the government had to provide civilizing influences like schools and churches. It had to teach them the rudiments of agriculture and aid them in the development thereof. The government had to protect them from being defrauded in their dealings with their more able and aggressive white neighbors as. long as they were not sufficiently advanced in their new method of life to take care of themselves. It also was the duty of the government to see that justice prevailed if they got into trouble, either among themselves or with others. Finally the government had agreed to allot those lands severally to the Indians when they were sufficiently advanced in civilization to take care of themselves.

This history must be taken into consideration in determining the meaning of the phrase “absolute jurisdiction and control over Indian lands.” That means more than the title to the Indian lands which was secured for the United States in the first part of the section. On these lands the United States was caring for its wards, the Indians, and aiding them in. acquiring the habits of civilization. During that time the jurisdiction over the Indians and'their lands had been absolute in the United States. The Organic Law under which-the Territory of Dakota was organized provided that nothing in the act should impair the rights of the Indians in the territory or “affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this act had never passed * * The provision in the Enabling Act and the Constitution is that the title to the Indian lands shall "remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States”. Webster’s New International Dictionary defines “remain” as “To continue unchanged in place, form or condition or undiminished in quantity, or to abide; endure; last; continue;”

Undoubtedly congress and the constitu-j tional convention intended this reservation; of jurisdiction over the Indian lands toi cover jurisdiction over the Indian peoplJ living on them as well as the lands theml selves as provided in the Organic Lawl That was necessary in order to give the government the opportunity to control and protect the Indian people living on them and thus carry out and fulfill its obligations under the treaties without hindrance.

There was sound reason for the reservation by congress of jurisdiction over the Indians to that extent. The Indians had at least possessory rights over the lands constituting the territory of Dakota. They had ceded those lands to the United States on the promise of the United States that they would be protected and aided in learning and becoming established in the new ways of life. The government owed them that obligation. When viewed in this light it is clear that the Indians were-the responsibility of the United States and that the United States should retain complete control over them and their lands until that obligation was fulfilled.

There also appears to have been a very good reason why the members of the .constitutional convention in behalf of their constituents were just as anxious to refrain from all responsibility for the Indians until the government had fulfilled its obligations so that further guardianship was not necessary. During the time of that tutelage there would necessarily be considerable expense and trouble. During that time the state was prohibited from taxing the Indian lands and Indian property. There was good reason why the pioneers of Dakota were unwilling to assume any responsibility for the conduct and care of people in that state of em'bryo civilization then existing among the Indians.

The case of State ex rel. Tompton v. Denoyer, 6 N.D. 586, 594, 72 N.W. 1014, 1017, supports this interpretation. In that case Judge Bartholomew thoroughly reviews the situation regarding Indians at the time o.f the enactment of the Constitution and the cases bearing on that section. After quoting the first part of the section he says:

“Thus far the statute is dealing with the title to the land only, and the unappropriated public lands and lands owned or held by an Indian or Indian tribes are placed upon the same basis or footing so far as the right of the ..United States to dispose of the title is concerned. Bui the statute immediately adds, ‘and that said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States.’ This provision applies to the Indian lands only, and it is not confined to the matter of title. It deals with a jurisdiction that extends to the lands themselves, and must have intended a more enlarged jurisdiction than was conferred . by the preceding language. * * * The reasons which actuated congress in thus retaining the broader jurisdiction over the Indian lands are perfectly apparent. These Indian lands are now universally held by the Indians under some treaty or contract with the United States, and common .good faith required congress to retain all the jurisdiction over these lands, necessary to enable the United States, to fulfill its treaty and contract obligations. Moreover, a well-recognized moral obligation rests upon the general government to care for these unfortunate wards of the nation. This duty cannot be performed unless the general government retains the right to exclude the white race from the Indian lands; otherwise, the Indian will be speedily dispossessed. Government must retain the power to establish agencies, erect school houses and churches, and introduce all desired civilizing influences, without being in any manner dependent upon the state. This increased jurisdiction was required for the best welfare of the Indian, and was in line with the government policy which seeks to convert the nomadic savage into the civilized citizen.” (Emphasis supplied.) •

In the South Dakota case of United States v. Ewing, D.C., 47 F. 809, 813, the federal court says:

“The reservations and provisions found in the act creating the territory ef Dakota and the state of South Dakota, whereby there is reserved to the United States the absolute jurisdiction and control over the Indian lands, were unquestionably included therein for the purpose of preventing any question arising as to the continued power and control of the United States over the Indian country, such continued power and control being necessary to enable the United States to discharge its treaty obligations and duties to the Indians. It is argued by counsel that the reservation of absolute jurisdiction and control over the Indian lands contained in the omnibus act is to be confined to the mere matter of the ownership of the title and control of the right of taxation, but such limited construction is not admissible. The reservation was meant to be as broad as the duty which the United States assumed in regard to these lands, which was to secure to the Indians the peaceful possession thereof as their home, and to protect their persons and property thereon.”

Montana was admitted under the same Enabling Act as North Dakota and its constitution contains the same clause with regard to jurisdiction over Indian lands. In the case of United States v. Partello, C.C., 48 F. 670, 675, the court analyzes the meaning of those clauses.

While in the final decision in that case the court erred in holding that the jurisdiction retained by the United States was in excess of that necessary to perform its treaty obligations to the Indians, and included jurisdiction of crimes committed by non-Indians against non-Indians on Indian lands, we nevertheless believe the reasoning of the court is valid in demonstrating that the intention of the provision under consideration was to retain in the United States the jurisdiction to fulfill its treaty obligations by prosecuting crimes by and against Indians, when committed on Indian lands, the court said:

“The question here presented is, what did congress intend by the clause, ‘and said Indian lands shall remain under the absolute jurisdiction and control of the United States;’ and what did the convention that framed the Montana constitution intend by it? * * * In the first part of the portion of section 4 of said act quoted above it appears that, as an individual proprietor, the United States was fully protected in regard to its rights to Indian lands, and the Indians were protected in their rights of occupancy. It does not seem that the clause under consideration could add anything to the rights of the United States in regard to these lands as a proprietor. * * * It was agreed by the ordinance above referred to that congress was to retain the absolute jurisdiction and control over these Indian lands within the Indian reservations in Montana. The word ‘jurisdiction,’ as used in the above clause, when applied to congress, means the power of governing such lands; to legislate for them; the power or right of exercising authority over them. * * * When we say congress has the right to legislate for a place within its exclusive jurisdiction, we mean for the people who are there, as well as concerning the land itself.”

That this jurisdiction was limited to, and included jurisdiction to enforce all laws upon Indian lands in so far as required by its treaty obligations to the Indians, we think is well settled.

In State v. Denoyer, supra, Judge Bartholomew, says:

“These authorities establish firmly the proposition that the jurisdiction reserved by the enabling act was not an exclusive jurisdiction. It did not take Indian lands out of the jurisdiction of the state where located, in the sense that the lands in another state are excluded. The United States retained all jurisdiction necessary for the disposition of the land and the title thereto ; all jurisdiction necessary to enable it to carry out all treaty and contract stipulations with the Indians; all jurisdiction necessary to enable it to protect and civilize its unfortunate wards. But the state had jurisdiction to tax the property of its citizens within the reservation, to enter thereon for the purpose of enforcing, by levy and sale, the collection of such tax. It had jurisdiction to punish its citizens for crimes committed one against the other thereon.”

This holding was confirmed in State ex rel. Baker v. Mountrail County, 28 N.D. 389, 393, 149 N.W. 120, 121, where Judge Fisk, speaking for the court, says:

“While it still retains a limited or qualified jurisdiction for certain purposes over such lands, the Congress of the United States relinquished to the territory of Dakota by the Organic Act, and to the state of North Dakota by the Enabling Act, all jurisdiction and governmental authority over these lands and the inhabitants residing thereon not thus specially reserved to itself(Emphasis supplied.)

Our latest holding on this matter is in State v. Kuntz, N.D., 66 N.W.2d 531, where we said:

“State courts generally have jurisdiction over offenses committed on Indian reservations by persons who are not Indians against other persons who are not Indians,” but “do not have jurisdiction over crimes committed on the Fort Berthold Indian Reservation by one who is not an Indian against one who is an Indian.”

This court has also held that where others than Indians occupied the Indian lands they were subject to state laws. In La Duke v. Melin, 45 N.D. 349, 177 N.W. 673, 676, it is held that:

“Even if such lands be deemed part of an Indian reservation, the property of persons other than Indians situated thereon might be subjected to taxation by the laws of this state.”

In the case of Anderson v. Brule County, 67 S.D. 308, 313, 292 N.W. 429, 431, the court says regarding this matter:

“That these and similar provisions in other enabling acts and constitutions of the several states were inserted for the purpose of maintaining ample supreme powers on the part of the United States to permit it to fully respond to its legal and moral obligations to the Indians rather than for the purpose of withholding power from the states to exercise jurisdiction over the reservations, and that it was intended the states should exercise a limited jurisdiction over Indian reservations within their exterior boundaries, are settled propositions. Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; Lebo v. Griffith, supra (42 S.D. 198, 173 N.W. 840); King v. McAndrews, supra, C.C., 104 F. 430; State ex rel. Tompton v. Denoyer, 6 N.D. 586, 72 N.W. 1014; State ex rel. Baker v. Mountrail County, 28 N.D. 389, 149 N.W. 120; Porter v. Hall, 34 Ariz. 308, 271 P. 411; Red Hawk v. Joines, 129 Or. 620, 278 P. 572, 577 ; 31. C.J. 531.”

After reviewing the authorities on jurisdiction over Indian lands, Judge Bartholomew, in State ex rel. Tompton v. Denoyer, supra, 6 N.D. 586, 72 N.W. 1019, says-:

“And the principles of these decisions logically and necessarily lead further, and give the state the right to extend to its citizens lawfully upon such Indian lands all the privileges and immunities of the laws of the state, where the same in no manner conflict with the reserved jurisdiction of the United States. And this construction places the enabling act in entire harmony with the Dawes bill.” (Emphasis supplied.)

Other cases holding that all jurisdiction over Indian affairs on the reservation is reserved in congress but all other matters are subject to the jurisdiction of the state are Draper v. United States, 164 U.S. 240, 17 Sup.Ct. 107, 4 L.Ed. 419; State v. Monroe, 83 Mont. 556, 274 P. 840; Truscott v. Hurlbut Land & Cattle Co., 9 Cir., 73 F. 60.

The United States Government has pursued a policy of aiding the Indians and trying to prepare them for a life that would make them self supporting and independent at which time United States obligations to the Indians would be completed.

The 'information in this case, after alleging the crime of assault and battery charges:

“That at said time and place and upon Indian land, the title to which is held in trust by the United States of America for the surviving heirs of the original allottee, one Frowling, The Indian title to which has not been extinguished, and which Indian allotment, is located within the Devils Lake Sioux Indian Reservation and within the said County of Benson, the said Leonard Lohnes residing upon said reservation, did -wilfully, wrongfully - and unlawfully heat and slap.one Mary Lohnes' about’ the ■ body with his hands, the said Leonard Lohnes and Mary-Lohnes at-said time both being enrolled Indians of the Devils Lake Sioux Indian Reservation and wards of the Government of the United States of America.”

The defendant’s plea of guilty to the charge containing that statement is an admission that he is a ward of the government. Consequently, the reservation of jurisdiction and control over him is within the reservation 1 of jurisdiction in the United States made in the Enabling Act and agreed to by the state in the Constitution.

It is contended, however, on behalf of the state in this case that congress has by the Act of May 31, 1946, transferred to the State concurrent jurisdiction over criminal offenses by or against Indians on the Devils Lake Sioux Indian Reservation. The Act reads as follows:'

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred on the State of North .Dakota over offenses committed by or against Indians on the Devils Lake Indian Reservation in North Dakota to the same extent as its courts have jurisdiction generally over offenses committed within said State outside of Indian reservations: Provided, however, That nothing herein contained shall deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United States committed by or against Indians on said reservation/ nor shall anything herein contained deprive any Indian of any protection afforded by Federal law, contract, or treaty against the taxation or alienation of any restricted property.” 60 U.S. Statutes at Large, page 229.

While this grants the state' only concurrent jurisdiction it does grant jurisdiction to the state over offenses committed by or against Indians on the reservation generally. It makes a change from the exclusive jurisdiction over Indians reserved .in the United States by the Enabling Act, and granted by the Constitution. It transfers! some of that exclusive jurisdiction from the United States to the state.

The'Enabling Act provided that the constitutional conventions should enact certain ordinances under the condition that they should be “irrevocable without the consent of the United States and the people of said States”. Section 4, Chapter 180, 25 U.S. Statutes at Large, page 676. Article XVI of the Constitution of North Dakota accepted that condition. One of the ordinances provided by’ the Enabling Act and enacted by the Constitution under that condition is Section 203, Article XVI, North Dakota Constitution, heretofore quoted, including the provision “that said Indian lands shall remain under the, absolute jurisdiction and control of the congress of the United States”. It was thereby required by Congress, agreed to by the Constitutional Convention and approved by a vote of the people in adopting the constitution that absolute jurisdiction and control of the Indian lands and people was retained in the United States and that that provision should not be changed without the consent of the United States and the people of North Dakota. That is’ a compact between the United States and the people of North Dakota that needs the consent of both'parties for any change in the jurisdiction over Indians.

There was good reason for that agreement. Both parties should have a say in whether the government had fulfilled its obligations and whether the Indians in North Dakota had become sufficiently advanced in civilization to become self-supporting, tax paying citizens.

The Act of May 31, 1946, conferring upon the State of North Dakota concurrent jurisdiction over all offenses by or against Indians on the Devils Lake Sioux Indian Reservation is a consent by the United States to that change in the original provision governing jurisdiction over the Indians. There is, however, no consent to that change by the people of North Dakota. Before that change as provided by the Act of May 31, 19.46, can become effective consent thereto has to be given by the people of North Dakota. Until that is done jurisdiction. over the Indian offenses on the Devils Lake Sioux Indian Reservation is absolute in the United States.

It follows that the answer to the certified question must be, No. The County Court of Increased Jurisdiction of Benson County, does nqt have jurisdiction in the case at issue.

BURKE, C. J.,' and JOHNSON, J.; concur.

MORRIS, Judge

(dissenting).

On July 1, 1954, the defendant, Leonard Lohnes, committed assault and battery upon the person of Mary Lohnes. At the time of the assault both were enrolled Indians-of .the Devils Lake Sioux Indian Reservation and wards of the Government of the United States of: America. The assault took place upon Indian land, the title ,to which is held in trust by the United States of America for the surviving heirs of the original allottee. This land was located within the Devils Lake Sioux Indian Reservation and the Indian title thereto had not been extinguished.

On May 31, 1946, the Congress of the United States enacted the following statute:

“That jurisdiction is hereby conferred on the State of North Dakota over offenses committed by or against Indians on the Devils Lake Indian Reservation in North Dakota to the same extent as its courts have jurisdiction generally over offenses committed within said State outside of Indian reservations : Provided, however, That nothing herein contained shall deprive the courts of the United States of jurisdiction over offenses defined by the laws of the United 'States committed by or against Indians on said reservation, nor shall anything herein contained deprive any Indian of any protection afforded by Federal law,’ contract or treaty , against the .taxation or aliena■tion of any restricted propertyl” 60 U.S. Statutes at Large, page 229.

The Devils Lake Indian Reservation is “Indian country.” Title 18, U.S.C.A. § 1151.

It is the general rule that the jurisdiction of a state extends over Indian country within its borders except as limited or reserved by Indian treaties or federal laws. State v. Jackson, 218 Minn. 429, 16 N.W.2d 752; State ex rel. Du Fault v. Utecht, 220 Minn. 431, 19 N.W.2d 706, 161 A.L.R. 1316; People v. Carmen, Cal., 265 P.2d 900. See also State ex rel. Olson v. Shoemaker, 73 S.D. 120, 39 N.W.2d 524.

On the other hand, it is the general rule that in the absence of legislation by congress conferring jurisdiction upon state courts they have no jurisdiction of crimes committed by tribal Indians on Indian reservations. State v. Rufus, 205 Wis. 317, 237 N.W. 67; United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228; Konaha v. Brown, 7 Cir., 131 F.2d 737; Williams v. United States, 327 U.S. 711, 66 S. Ct. 778, 90 L.Ed. 962; Nephew v. State, 178 Misc. 824, 36 N.Y.S.2d 541; State v. Kuntz, N.D., 66 N.W.2d 531.

But in the case before us we have the act of May 31, 1946, above quoted, which purports to confer jurisdiction on the State of North Dakota over offenses committed by or against Indians on the Devils Lake Indian Reservation. This jurisdiction is not exclusive but concurrent, and it would seem at this point that the statute settles the matter and that effective concurrent jurisdiction has been conferred upon the courts of North Dakota over offenses committed by or against Indians. But solution of our problem is not so easy.

It is pointed out that there is embedded in the Enabling Act which authorized North Dakota’s admission into the Union and in the Constitution ■ of the State of North Dakota a disclaimer of jurisdiction “irrevocable without the consent of the United States and the people of this state” which it is contended prevents the effective vesting in the courts of North Dakota of criminal jurisdiction over the defendant in this case. Chapter 180, 25 U.S. Statutes at Large, page 676, Section 4; North Dakota Constitution, Section 203. I quote the paragraph containing the disclaimer from the state constitution:

“Second. The people inhabiting this state do agree and declare that they forever disclaim all right and title to' the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subj ect to the disposition of the United States, and that said Indian lands shall remain tmder the absolute jurisdiction and control of the Congress of the United States; that the lands belonging to citizens of the United States residing without this state shall never be taxed at a higher rate than the lands belonging to residents of this state; that no taxes shall be imposed by this state on lands or property therein, belonging to, or which may hereafter be purchased by the United States or reserved for its use. But nothing in this article shall preclude this state from taxing as other lands are taxed, any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person, a title thereto, by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any acts of congress containing a provision exempting the lands thus granted from taxation, which last mentioned lands shall be exempt from taxation so long, and to such an extent, as is, or may be provided in the act of congress granting the same.”

I have italicized the language which it is contended thwarts the vesting of criminal jurisdiction involved in this case.

! The entire paragraph of the state constitution quoted above deals primarily with lands, not with people. It deals with the soil, not with those residing thereon. If people are affected, it is because of some rights which they have or duties that they owe arising out of or incident to their ownership or occupation of the lands. It is strenuously asserted , that the italicized language was inserted for a purpose and must be given effect and to give it effect it must be construed to disclaim something more than the right and title to the land which was already under the exclusive ownership and jurisdiction of the United States. To this proposition I agree. But to give it effect does not require that it be construed to disclaim the sovereign police powers of the state or the right of the state to enforce its criminal laws whenever and . wherever jurisdiction to do so has been relinquished to the state by the federal government.

It has long since been conclusively determined that the disclaimer in question was not territorial in import and effect. It did not exclude the jurisdiction of the state from the land as a territory within which the state might never exert its laws or make persons or property found therein amenable to its legal processes. It did not make Indian lands foreign soil with respect to the state and its courts. This was first determined in Truscott v. Hurlbut Land & Cattle Co., 9 Cir., 73 F. 60, which arose in the State of Montana. Montana was admitted to the Union under the same Enabling Act as North Dakota and its constitution contains the same disclaimer. In that case it was held that the disclaimer did not prevent the State of Montana or its counties from taxing cattle of a corporation grazing upon an Indian reservation under a contract with the Indians which was sanctioned by the United States.

Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 108, 41 L.Ed. 419, involved the murder of one negro by another on the Crow. Indian Reservation in the State of Montana. Draper was convicted in the state court. Upon review in the United States Supreme Court he contended that the Enabling Act and the disclaimer provision of the Montana Constitution deprived the courts of the state of jurisdiction over all offenses committed on the Crow Indian Reservation. In denying the contention the court said:

“As equality of statehood Is the rule," the words relied on here to create- an - exception cannot be construed as doing so, if, by any reasonable meaning, they can be otherwise treated. The mere reservation of jurisdiction and control by the United States of ‘Indian'lands’ does not of necessity signify a retention of jurisdiction in the United States to punish all offenses committed on such lands by others than Indians or against Indians. It is argued that as the first portion of the section in which the language relied on is found disclaims all right and title of the state to ‘the unappropriated public lands lying within the boundaries thereof and of all lands lying within said limits, owned or held by an Indian or Indian tribes, and until the title thereof shall be extinguished by the United States, the same shall be and remain subject to the disposition of the United States,’ therefore the subsequent words, ‘and said lands shall remain under the absolute jurisdiction and control of the United States,’ are rendered purely tautological-and meaningless, unless they signify something more than the reservation of,authority of the United States over the lands themselves and the title thereto. This argument overlooks, not only the particular action of congress as to the Crow reservation, but also the state of the general law of the United States, as to Indian reservations, at the time of the admission of Montana into the Union.”

The court then discusses Indian allotment statutes and particularly the act approved February 8, 1887, 24 U.S. Statutes at Large, page 388, which the court said “contemplated the gradual extinction of Indian reservations and Indian titles by the allotment of such lands to the Indians in sever-alty.” It also noted that Indians not residing on a reservation or for whose tribe no reservation had been provided were authorized to enter a designated quantity of unappropriated public land and to have patents therefor, under certain regulations and restrictions comparable to the allotments on reservations. Then the court says:

“From these enactments it clearly follows that at the time of the admission of Montana into the Union, and the use in the enabling act of the restrictive words here relied upon, there was a condition of things provided for by the statute law of the United States, and contemplated to arise, where the reservation of jurisdiction and control over the Indian lands would become essential to prevent any implication of the power of the state to frustrate the limitations imposed by the laws of the United States upon the title of lands once in an Indian reservation, but which had become extinct by allotment in sever-alty, and in which contingency the Indians themselves would have passed under the authority and control of the state.”

It seems clear that the court in Draper v. United States looked upon the disclaimer as pertaining to Indian lands and the rights incident thereto rather than as disclaiming complete jurisdiction over the Indians themselves to the extent of forever forswearing in behalf of the state the right to enforce its criminal laws or to assert its police powers.

The majority opinion quotes from the case of United States v.'Partello, 48 F. 670, in which it was held that the United States Circuit Court, District of Montana, rather than the courts of the State of Montana had jurisdiction over the crime of rape committed by a white man upon a white woman within the limit of .the Crow Indian Reservation in the-State of . Montana. In so holding that case pursues to its logical conclusion the reasoning of the majority. But the case has been thoroughly discredited. Five years later the supreme court in Draper v. United States, supra, held that the state courts of Montana rather than the federal court had jurisdiction of the crime of murder on, this same Crow Indian Reservation by a negro against another negro.

The majority also quotes from United States v. Ewing, 47 F. 809. It was there held that the United States District Court had jurisdiciton of an indictment against a white man for stealing the horses of an Indian on the Yankton Reservation in South Dakota. That decision is undoubtedly correct as to result but not as to the reason for it. The same result has been arrived at by the United States Supreme Court for different reasons where no disclaimer such as ours was involved. See Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820, Ann.Cas.1913E, 710. I have been unable to find where United States v. Ewing has been cited with approval.

In Porter v. Hall, 34 Ariz. 308, 271 P. 411, 414, the right to vote of certain Indians residing on reservations was challenged on the ground that they were not residents of the State of Arizona. The Enabling Act by which Arizona was admitted to the Union has a provision regarding Indian lands similar to ours and contains this language:

“ ‘that until the title of such Indian or Indian tribe shall have been extinguished the same shall be and remain subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States.’ ”

After quoting at length from Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419, the Arizona court said:

“We have no hesitancy in holding, therefore, that all Indian reservations in Arizona are within the political and governmental, as well as geographical, boundaries of the state, and that the exception set forth" in our Enabling Act applies to the Indian lands considered as- property, and not as a territorial area withdrawn' from the sovereignty of the state of Arizona.”

The second point in that case was based upon the argument that the Indians were not entitled to vote because they were under guardianship. The . court reviewed cases holding that Indians are wards of the nation and pointed out that the federal statutes provide that Indians of the class of those under consideration, in case they commit a crime while on the • reservation, are subject to the laws of the United States and not the laws of the State of Arizona and the court then said:

“And this is based on the fact that they are wards of the United States, and not that they are without the territorial jurisdiction of the State.”

That is my position in this case. The federal criminal jurisdiction exercised over Indians in North Dakota by the federal government is based on the status of Indians as such rather than upon the lands on which they reside. When that jurisdiction is relinquished it falls to the state which has general criminal jurisdiction within its borders.

In commenting on Porter v. Hall, supra, in Harrison v. Laveen, 67 Ariz. 337, 196 P.2d 456, 458, it is said:

“The opinion in the last-mentioned case laid at rest the contention there made that members of Indian tribes residing on Indian reservations were not ‘residents of the state of Arizona’, as it was held that Indian, reservations in Arizona are within political and governmental boundaries of the state, and limitations on state’s jurisdiction in Enabling Act apply only to Indian lands considered as property, but do not withdraw territorial area from sovereignty of state and control of its laws.”

In State ex rel. Tompton v. Denoyer, 6 N.D. 586, 72 N.W. 1014, 1017, this court held that under the act of February 8, 1887, 24 U. S. Statutes at Large, page 388, Indians and persons of Indian descent residing upon lands allotted to them in severalty and upon which preliminary patents had been issued were citizens of the United States and qualified electors of the state and that it was the duty of the county commissioners of Benson County to establish a voting precinct for them which was on the Devils Lake Indian Reservation and within the boundaries of Benson County. Thus the court reached the conclusion that the disclaimer under consideration did not affect the right or the duty of the county commissioners to establish on Indian lands a voting precinct in which the - citizen residents of those lands might vote. In discussing the disclaimer the court says:

“This provision applies to the Indian lands only, and it is not confined to the matter of title. It deals with a jurisdiction that extends to the lands themselves, and must have intended a more enlarged jurisdiction than was conferred by the preceding language. Does it thereby create a jurisdiction as exclusive as in cases of lands ceded to the United States by a state for specific purposes, as hereinbefore considered? The reasons which actuated congress in thus retaining the broader jurisdiction over the Indian lands are perfectly apparent. These Indian lands are now universally held by the Indians under some treaty or contract with the United States, and common good faith required congress to retain all the jurisdiction over these lands necessary to enable the United States to fulfill its treaty and contract obligations. Moreover, a well-recognized moral obligation rests upon the general -government to care for these unfortunate wards of the nation. This duty cannot be performed unless the general government retains the right to exclude the white race from the Indian lands; otherwise, the Indian will be speedily dispossessed.”

Here, as in Draper v. United States, the court appears to have had in mind that by the provision under discussion there was placed beyond the power of the state any interference which would be detrimental to the Indians who occupied it with respect to their rights incident to or growing out of the land. The case is not authority for the proposition that the state disclaimed all jurisdiction with respect to crimes committed by Indians any more than it disclaimed jurisdiction of the crime of murder committed on Indian land by one negro against another, as was the fact in Draper v. United States, supra.

In State ex rel. Baker v. Mountrail County, 28 N.D. 389, 149 N.W. 120, 121, the court had before it the question of the right of the state to exercise political and-governmental jurisdiction and control over the Fort Berthold Indian Reservation sufficient to authorize it to include a part of the reservation within the political subdivision of the state known as Mountrail County. It was argued that the provision of Section 4 of the Enabling Act and subdivision 2 of Section 203 of our state constitution that ■“said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States” was exclusive as to the state’s right to include Indian lands within boundaries of a county. Relying upon State- ex rel. Tompton v. Denoyer, supra, the question was determined in favor of the right of inclusion and the court said:

“While it still retains a limited or qualified jurisdiction for certain purposes over such lands, the Congress of the United States relinquished to the territory of Dakota by the Organic Act, and to the state of North Dakota by the Enabling Act, all jurisdiction and governmental authority over these lands and the inhabitants residing thereon not thus specially reserved to itself.”

Here again we find the court considering the jurisdiction retained as pertaining to the land while the jurisdiction relinquished to the State of North Dakota included both the land and the inhabitants residing thereon.

It might be well to also bear in mind that in those states in which the constitutional provision under consideration is not found the division of criminal jurisdiction with respect to crimes committed on a reservation is exactly the same as it is in those states containing the specific reservation of jurisdiction over lands which we are now considering. It is the rule stated in State v. Kuntz, N.D., 66 N.W.2d 531:

“State courts generally have jurisdiction over offenses committed on Indian reservations by persons who are not Indians against other persons who are not Indians.” But “The courts of the State of North Dakota do not have jurisdiction over crimes committed on the Fort Berthold Indian Reservation by one who is not an Indian against one who is an Indian.”

My conclusion is that the provisions of the Enabling Act and our constitutional disclaimer have no effect whatever upon the criminal jurisdiction of the state; that the state has general jurisdiction over reservations wholly within the state, excluding however, that jurisdiction which has been retained by the federal government over “Indian country” as long and only as long as that jurisdiction is asserted by the federal government and when the federal government cedes or confers criminal jurisdiction over Indian country to the state the federal restraint on the state’s jurisdiction is removed and to the extent of that removal the jurisdiction of the state is automatically extended. My answer to the certified question is yes.

SATHRE, J., concurs in the foregoing dissent.


source: Caselaw Access Project

author: GRIMSON, Judge. GRIMSON, Judge.

license: Public Domain

text:
    Leona GUNSCH, Plaintiff and Respondent, v. Dan GUNSCH, John Gunsch, and David Gunsch, Defendants and Appellants.
    No. 7397.
    Supreme Court of North Dakota.
    Dec. 18, 1954.
    Rehearing Denied April 21, 1955.

      J. K. Murray, Bismarck, for appellants.
    Floyd B. Sperry, Golden Valley, for respondents.
   GRIMSON, Judge.

This is one of a series of related actions arising out of the unfortunate troubles of the David Gunsch family. The plaintiff, Leona Gunsch, commenced this action on April 2, 1953, for an injunction, for an accounting and to quiet title. She alleges that she is the owner of the South Half (S%) and the Northeast Quarter (NEj4) of Section Thirteen (13), and the South Half (5½) of the Southeast Quarter (SE^4) and the South Half (3½) of the Southwest Quarter (SW^Q o-f Section Twelve (12), all in Township One Hundred Forty-three (143, North, Range Eighty-nine (89) -West of the 5th. P.M. Mercer County, North Dakota, subject to a balance due on the purchase price; that said land had been 'bought by her husband, Tony Gunsch, from his father, David Gunsch; that she obtained a divorce from Tony Gunsch in which action the court decreed and transferred unto her said real estate subject to the rights of said David Gunsch .under the contract for deed; that there has been paid on said contract $4,000; that plaintiff has offered to pay the balance of $12,000 and interest which was refused ,by said David Gunsch; that the defendants have, without any authority or right, removed the 1952 crops from the premises and pastured the land; that the defendants kept her tenants off of the premises by threats of force and violence; that they removed a portion of the buildings therefrom and continued repeated trespasses thereon; that they have instituted numerous legal proceedings for the purpose of vexing and annoying the plaintiff and that unless restrained they will continue to keep the plaintiff and her tenant from possession of the property and deprive her of the income therefrom; that she will suffer irreparable damages from their actions and that she has no adequate remedy at law. She asks for a temporary injunction pending the action and a permanent injunction thereafter restraining the defendants from interfering with the plaintiff or her agents in the possession and enjoyment of these premises. She further asks for an accounting of the crops for 1952 and that the defendants be required to set forth their claims to the land and that the same be declared null and void. That has been done in other actions.

Upon the filing of the complaint and the supporting affidavits of plaintiff’s tenant and her attorney, an order to show cause why a temporary restraining order should not be granted was issued. The court concluded, “That it satisfactorily appears to the court that good cause exists for an injunction, pending said action, and that from said complaint and said affidavits, and the records herein, the defendants shall be so restrained and enjoined.” On the hearing on the order to show cause the restraining order was continued.

The defendants filed a joint answer alleging ownership in the land in question in the defendants, John Gunsch and Dan Gunsch, subject to the contract for deed with the defendant, David Gunsch; alleging they purchased the land and some cattle and machinery from Tony Gunsch on or about the 1st day of April 1951 and that prior action is pending to determine the conflicting claims thereto and counterclaiming for the value of improvements in the way of breaking and seeding the land for 1953.

The evidence shows that Tony Gunsch had farmed the land in question for several years and was in possession thereof. On February 19, 1951, Tony bought it from his father, David Gunsch, on contract, for $16,000. On March 10, 1951, the plaintiff Leona Gunsch, Tony’s wife, commenced a divorce action against him. On that' date a temporary injunction was issued restraining Tony from disposing of any of his property. On June 25, 1952, the divorce action was heard and on June 28, 1952, a judgment was filed granting Leona Gunsch a divorce from Tony Gunsch and in a division of the property she was awarded Tony’s interest in the section of land bought 'by him from his father, subject to that contract of purchase and some cash, cattle and household furniture. The evidence further shows that the defendants, after the divorce was granted put forth the claim that John Gunsch and Dan Gunsch had bought the land from Tony on March 15, 1951. Tony denied that and made arrangements for the farming of the premises in 1951.

In the spring of 1951, Tony leased 60 or 70 acres to one Carl Neuberger, and was to get one-third of the crop. Then he made arrangements for the seeding of the remainder of the fields and secured the assistance of Neuberger and his brothers, Dan Gunsch and John Gunsch, to seed the crop. Tony was to receive one-third of the crop Neuberger seeded and harvested. His brothers were to use Tony’s combine in harvesting the crop they put in for him and have the use of that combine for their own crop in return for the assistance to Tony in raising the crop that year. Tony was to receive all of the crop. Out of that crop $4,100 was paid to David Gunsch as a first payment on the land contract. Tony did not receive anything.

In the spring of 1952 Tony continued his attempt to exercise control and entered into a lease with Carl Neuberger for the farming of most of the farm land on the section. David, Dan and John, however, interfered with the carrying out of that lease. The defendants, Dan Gunsch and John Gunsch, entered upon the land early in the spring and farmed it in 1952.

As soon as Leona Gunsch acquired Tony’s interest in the land by divorce decree in 1952, she engaged one Kees to look after this section of land and the cropping of it for her. John Gunsch, however, interfered and told Kees to stay away from that land in rather threatening language.

On January 22, 1953, Leona leased the land to one Fred Flemmer. He made preparations to farm it but was prevented by John and Dan Gunsch. He testified they told him that, “If I didn’t want to get hurt I had better stay out.” Again Dan and John entered upon the land early. “They came out like a cyclone and they came out with five tractors, didn’t give anyone a chance.” Counsel for Dan and John wrote Neuberger letters warning him to keep off the land or “you are liable to get hurt.”

In addition to the claimed trespasses by the defendants upon the real property in question they instituted two actions against plaintiff involving her possession of and right to the cattle that had been awarded to her by the divorce decree. Furthermore, John Gunsch and Dan Gunsch brought an action to determine adverse claims to this land, and David Gunsch brought an action to foreclose the contract.

All these actions, together with the instant case, were by stipulation, tried together in July 1953. No objection was made to the form of any of the actions. Different judgments were entered determining the principal issue raised in each case. All of these actions were decided favorably to the plaintiff in this action and have been appealed to this court.

In the case of Gunsch v. Gunsch, N.D., 67 N.W.2d 311, 325, to determine adverse claims, this court very thoroughly discussed the evidence as bearing on the ownership and possession of the premises. Reference is hereby made thereto. Dan and John, after the divorce decree, claimed to have bought under an oral contract the premises and the other property involved, from Tony Gunsch on March 15, 1951. On that this court says:

“The evidence is voluminous, often conflicting, contradictory and even confusing. When the evidence is considered as a whole it does not spell out a clear-cut agreement between th parties. If any negotiations took place it appears that whatever talks there were between the plaintiffs and Tony and their father, David Gunsch, their primary purpose was to attempt to keep Leona Gunsch from procuring an interest in Tony’s property; but the negotiations, whatever they were, never amounted to an oral agreement between the parties. * * * The plaintiffs obtained possession of the property without the knowledge and consent of Tony Gunsch; retained possession in 1952 and 1953 by coercion and threats. Their possession of the land * * * was illegal and they are, and have been trespassers upon the property.”

The court found:

“Leona Gunsch is the equitable owner of the section [the land in question] as the successor in interest of Tony Gunsch pursuant to the judgment and decree granted her in the divorce action against Tony Gunsch and by which she received the interest of Tony Gunsch in the contract for deed with his father, David Gunsch, involving the ‘section’ and she is entitled to immediate possession thereof”.

This court thereupon determined the conflicting claims to this real estate in favor of the plaintiff, Leona Gunsch. Her ownership, therefore, is established and the claims of John Gunsch and Dan Gunsch found invalid. It is further held therein that they were trespassers on the land in 1951, 1952 and 1953.

In the action by David Gunsch to foreclose his contract this court found that Leona Gunsch as successor of Tony’s interest in that contract had the right to pay the ■ balance due thereon. Gunsch v. Gunsch, 'iN.D., N.W.2d - — .

Leona Gunsch has, therefore, been found.to be the owner of the real estate since June 28, 1952. It followed that the defendants were repeated trespassers upon the land; that they had interfered with the plaintiff’s right to the enjoyment and the fruits of said land. The evidence fully warrants that finding. The evidence also shows the continued threat of the defendants to trespass upon such property and to deprive the plaintiff of the fruits of its production for the year 1953. The plaintiff had been protected by a preliminary restraining order up to the time of entry of judgment in this case. With the entry of that judgment the preliminary restraining order ceased and was merged in the final judgment. Martinson v. Marzolf, 14 N.D. 301, 307, 103 N.W. 937. The danger of trespass by tíre defendants, John Gunsch and Dan Gunsch, and the threatened loss to the plaintiff of the 1953 crops clearly continued. It would at least be very doubtful if she could find out how much grain was raised or what became of it. A remedy for damages would be insufficient as it would be extremely difficult to ascertain the amount that would afford adequate relief. In such cases Section 32-0504, NDRC 1943, authorizes a final injunction.

The jurisdiction to prevent threatened disturbance in the peaceable use and enjoyment of real property is inherent in a court of equity. Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 93 A.L.R. 1170. A court of equity will protect the rightful claimant’s possession or right to possession against a trespasser. Zimmerman v. McCurdy, 15 N.D. 79, 84, 106 N.W. 125.

“After the establishment of his legal right and of the fact of its violation, the plaintiff is in general entitled as of course to a perpetual injunction to prevent the recurrence of the wrong, unless there be something special in the, circumstances of the case, such as laches, ■ or where the interference with the plaintiff’s right" is trivial.” Kerr' on Injunctions, p. 32.

In the instant case there are no such circumstances. Qearly the court had the right to order a final injunction in the instant case.

Contempt

On the 28th day of May 1953, Leona Gunsch filed her affidavit setting forth the issuance of the preliminary restraining order in this matter and its due service upon the defendant. She then claims that the defendants had violated such restraining order and proceeded upon the premises for farming operations thereon, and also that they had taken steps to prevent her tenant from operating said premises. She alleges further that the defendants kept a lock on the gate to the buildings on the premises; erected a sign for the purpose of keeping plaintiff off of the land.

On the 18th day of July 1953, an order to show cause was issued thereupon by Judge Wigen. Before it could be heard, however, he was disqualified and Judge Amundson designated in his place. Leona Gunsch filed another affidavit alleging defendants had further entered upon the premises for the farming thereof, and she prayed for an order to show cause directing Dan Gunsch and John Gunsch to show why they should not be punished for contempt.

Upon the affidavits of Leona Gunsch, the summons, complaint and all the files in the case, Judge Amundson granted an order to show cause on the 22nd day of July 1953 at 10:00 o’clock A.M. why the defendants should not be punished for contempt of court by farming the land in question in the spring of 1953.

This order to show cause was served upon the defendants. John Gunsch and Dan Gunsch filed a return to said order denying that it- had been properly served; admitting the farming of the land under the claimed purchase from Tony and claiming that counsel had advised them that they were equitable owners of the property; that injunction could not be used to throw them off; that they were in possession and farming the land under contract of purchase; that the restraining order was void and of no effect, and that they were absolutely safe to stay in possession of said land; that the plaintiff had never attempted to take possession; that Fred Flemmer told them of his lease but that they told him they had bought the land from Tony; that they, in good faith, took the advice of their attorney and continued in possession, farming the land.

Upon the joint trial of the cases it was stipulated:

“That between the parties in the three (3) contempt proceedings now pending before the court, that all the evidence received in the trial of the six (6) cases which we are now trying jointly, be considered by the court in determining these contempt actions;”

and it was further stipulated:

“That all the affidavits of either opposing parties be admitted in evidence and that the identification of them by exhibits are hereby waived, that the respective exhibits are in the files of the cases bearing their respective titles.”

Upon this submission of the contempt cases the court passed upon the matter. Clearly, if there was any irregularity in the service of the order to show cause it was waived.

The restraining order granted by Judge Wigen on April 4, 19S3 reads as follows:

“It is further ordered that the defendants, Dan Gunsch, John Gunsch, and David Gunsch are hereby, until further order of this court, enjoined and restrained from entering or going upon said premises, or any part thereof, which are described in the complaint, from trespassing thereon, or in any - way interfering with the operation thereof by the plaintiff, by her tenant, Fred Flemmer, or by any of her agents or employees, said defendants being hereby ordered to remain off of said premises, and to refrain from interfering with the plaintiff’s operations thereon, pending the trial of said action, or the final order of the court herein.” ¡

Then follows a description of the property, and an order for $1,000 undertaking which was furnished. This restraining order was duly served on the defendants on April 6, 1953.

Section 32-0602, NDRC 1943, provides that an injunction may be granted:

“When it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation will produce injury to the plaintiff”.

Section 32-0603, NDRC 1943, provides, that an injunction may be granted at the commencement of an action if it appears satisfactorily to the court “by the affidavit .of the plaintiff, or any other person, that sufficient grounds exist therefor.”

In Brace v. Steele County, 77 N.D. 276, 282, 42 N.W .2d 672, this court holds’:

“In an action for injunctive relief a temporary injunction may be granted to the plaintiff to restrain the defendant from the commission or continuance of some act against which the in-junctive relief is sought pending the final determination of the case on the merits, when it is necessary to protect the rights of the plaintiff during the litigation.” See also Burton v. Walter, 13 N.D. 149, 100 N.W. 257; Forman v. Healey, 11 N.D. 563, 93 N.W. 866; McClure v. Hunnewell, 13 N.D. 84, 99 N.W. 48; Gillies v. Radlce, 78 N.D. 974, 54 N.W.2d 155.

The sole purpose of a temporary injunction is to maintain the cause in status quo until a trial on the merits. Brace v. Steele County, 77 N.D. 276, 42 N.W.2d 672. See 43 C.J.S., Injunctions, § 2, p. 406, 28 Am.Jur., Injunctions, § 12, p. 204.

From the allegations of the complaint it appears that plaintiff is the owner of the property; that the defendants are not in legal possession of the premises. It is alleged that they are trespassers and that they are by force preventing the plaintiff and her tenant from further farming the premises. The prayer is to keep them off the premises, not to remove them. This is not a mandatory injunction. It is merely to restrain them from entering upon and interfering with the plaintiff's operation of the premises during the pendency of the action. Plaintiff claims that otherwise she is irreparably damaged and has no adequate remedy at law therefor.

We find that the trial court did not abuse its discretion in issuing a temporary restraining order upon the complaint and affidavits submitted.

Defendants, John Gunsch and Dan Gunsch, and their counsel now plead advice of counsel as a defense to their violation of the restraining order. Generally that is not considered good defense in contempt proceedings.

“The fact that a contemner acted under the advice of counsel is generally no defense to a proceeding for contempt ; but that fact will be considered in mitigation of the offense, or the punishment therefor, at least where the contemner has acted on the advice in good faith, or where an injustice will result. However, if the facts and circumstances show that the excuse is merely a pretense and that the action . was deliberate, willful, and contumacious, it will not be considered in mitigation; nor, it has been held, may an attorney urge the excuse of advice of counsel in mitigation of punishment.” 17 C.J.S., Contempt, § 38, p. 52.

In Brown v. Brown, 335 Mich. 511, 56 N.W.2d 367, 371, it is held:

“It is not a defense that one who violated an injunction did so upon the advice of counsel.” See Chapel v. Hull, 60 Mich. 167, 26 N.W. 874.

Counsel for defendants cites the case of Forman v. Healey, 11 N.D. 563, 93 N.W. 866, as his authority for the advice given the defendants. The facts, however, in that case were different. Both parties were living upon different portions of a quarter section of government land, each claiming residence and right to perfect title under the homestead laws of United States. Their rights were pending on contest before the Interior Department of the United States. Decision had not been made. Each party was attempting to oust the other by mandatory injunction and it was held that could not be done.

In the case at bar the defendants were not residing upon the premises and as this court has held in Gunsch v. Gunsch, supra, had no right to possession thereof. They were trespassers. They were not acting in good faith and “their primary purpose was to attempt to keep Leona Gunsch from protecting her interest in Tony’s property.” They clearly violated the restraining order of the court.

In the case of State v. Simpson, 78 N.D. 360, 49 N.W.2d 777, 780, this court held:

“‘An injunctional order in an equity case, pendente lite, issued by a court having full equity powers and complete jurisdiction of the subject matter, must be obeyed while it remains in force, however irregularly or erroneously it may have issued.’ ” See also Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 12 A.L.R.2d 1051; Glein v. Miller, 45 N.D. 1, 176 N.W. 113.

Section 27-1003, NDRC 1943, provides that every court of record may punish as for civil contempt any person guilty of misconduct by which a right or remedy of the party to a civil action may be defeated, impaired or prejudiced or (Subd. 3) for any disobedience to any lawful order, judgment or process of the court.

The evidence shows that the defendants, John Gunsch and Dan Gunsch, in this case were guilty of misconduct by which the rights of the plaintiff in this action were prejudiced. They disobeyed the lawful order of the court. The order finding such defendants guilty of contempt of court was proper.

Receivership.

On July 21, 1953, a motion was made by the defendants for the appointment of a receiver ■ for the real estate in question. This was based upon the affidavit and application of Leona Gunsch reciting the history of the real .estate since February 19, 1951, her ownership thereof under the divorce decree, the trespassing and farming of the land by the defendants in 1952 without any accounting, the danger of her losing the 1953 crop; that the only way of protecting her rights and interest in the crops and property was to appoint a receiver to take charge of the same pending final disposition of the litigation over the land in question. The defendants filed an objection and written resistance to said petition reciting their claims to the property under the alleged purchase from Tony.

The court upon the evidence in the five cases appointed a receiver giving him possession of the land and authority to take care of the land and the farming and the receipts therefrom.

Section 32-1001, Subdivision 1, NDRC 1943, provides that a receiver may be appointed by the court in which an action is pending between parties jointly interested in the property involved on the application of “any party whose right to or interest in the property or fund or proceeds thereof is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially' injured”.

The defendants argue that the 'appointment of a receiver is not necessáry or proper in a case where the claimant of title is in possession in good faith.

' The evidence in this case shows that legal title to the premises is in David Gunsch subj ect to the contract between him and Tony; that Tony’s interest was decreed by the court to the plaintiff. The defendants Dan and John, claim equitable ownership under an alleged purchase from Tony. Two-thirds of the crop raised on the premises were to be applied on the contract to David to protect the equitable title of either Dan and John or the plaintiff whoever was finally found to be the rightful owner thereof. If not so applied David could foreclose and deprive the other parties to this action of their interest. The court found that the plaintiff was the owner of the equitable title under the decree of divorce and that the defendants were not in good faith but were trespassers and had no legal right to. the property. In this case all of the parties to this lawsuit claim an interest in the crops.’ These facts bring this appointment within the provisions of Section 32-1001, supra.

The case of Olson v. Union Central Life Ins. Co., 58 N.D. 899, 228 N.W. 223, 225’, involved the appointment of a receiver for certain crops and restraining the plaintiff from disposing of the same. The defendant had foreclosed on certain real estate in 1924 and no redemption had been made by the plaintiff. Plaintiff began the action to set aside and vacate the sale. He remained in possession in 1926 and 1927 and farmed the premises. The action came for trial and judgment was entered for the defendants in June 1927. The defendants then applied for the appointment of a receiver for the 1927 crops which plaintiff had seeded. The court says:

“The main case had been tried and disposed of by the trial court. The judgment entered by that court was in favor of the respondent, quieting title in it and awarding the possession of the premises in question to it. • The crop involved in the receivership proceeding, with respect to which the order from which this appeal was taken was entered, was crop about to mature on the premises. At the time the application -for the order was made, no ■ appeal had' been perfected. At that time the court unquestionably had jurisdiction1 and authority to appoint a receiver to conserve it, if it were necessary that this be done.”
“A receiver will be ‘ appointed over crops where parties are contesting the title of the land, each claiming to be in possession, and where each is interfering with the other in harvesting crops grown by him,' and threatening forcible resistance.”. 1 Tardy’s Smith on Receivers, Section 203, p. 505.

It has been generally recognized by this court as well as other authorities that equity jurisdiction will give ancillary aid to an action in court by the appointment of a receiver when the facts show such remedy necessary to preserve the status quo of the property in issue until the proper disposition thereof has been determined in the litigation providing irreparable damage .may result if the existing status of the property is not preserved. Sec. 32-1001, Subdivision 6, NDRC 1943, provides that •a receiver may be appointed in all cases, “where receivers heretofore have been appointed'by the usages of court of equity.” See also, Martin v. Harnage, 26 Okl. 790, 110 P. 781, 38 L.R.A.,N.S., 228; Dale v. Duffy, 44 N.D. 33, 176 N.W. 97; Olson v. Union Central Life Ins. Co., 58 N.D. 899, 228 N.W. 223.

“Where crops are planted by a trespasser who wrongfully assumes to hold possession and threatens to harvest and market the crops for his own bene- . fit, the appointment of a receiver is authorized in appropriate proceeding.” Barnes v. Morrison, 102 Cal.App. 152, 282 P. 986, 989.
“If plaintiff has a lien, charge or other interest in the defendant’s property, and there is reasonable ground to apprehend that, pending the litigation, the property, the subject of such lien, charge or other interest will be disposed of fraudulently or in such a way as to deprive the complaining party of the fruits of his recovery, then a court of equity will , step in and preserve the property by injunction or by the appointment of a receiver.” Vol. 1, Clark on Receivers, Second' Addition, Sec. 187; p.245.

In Ingwalson v. Aney, 54 N.D. 627, 210 N.W. 498, 500, it is said:

“Whether in any given case a situation exists which justifies or requires the appointment of a receiver is one-addressed to the sound legal discretion of the district court and its order will not be disturbed on appeal unless clearly wrong. 2 Tardy^s Smith on Receivers, 2d ed. p. 1954”. See also Dale v. Duffy, 44 N.D. 33, 176 N.W. 97, 45 Am.Jur. Receivers, Sec. 47, p. 43.

Defendant’s counsel argues that when the district court had made its order fixing the amount of undertaking on appeal and stay as to money parts of the judgment his jurisdiction ceased and that when an appeal was taken it had no more power or duty as to the receivership. He claims that no application was pending for the reappointment of a receiver at the time the “Modified Order Fixing Conditions and Amount of Undertaking on Appeal, Staying Execution and Proceedings to Enforce Judgment Pending Appeal” dated March 24, 1954, was issued. There was no stay of the receivership granted in said order. Instead it was provided that possession of the real estate in question should remain in the receiver appointed to take possession thereof and of the 1953 crops, and that he should continue in possession under said order and “take possession of the 1954 crops upon said real estate, and all crops raised thereon thereafter, until further order of the court.” This was done for the purpose of protecting and saving the crops of 1954 for the same reason that the receiver was appointed in the first place. The litigation was still pending on appeal.

In Olson v. Union Central Life Insurance Co. supra [58 N.D. 899, 228 N.W. 225], this court holds:

“When the'appeal was perfected the trial court was thereby divested of the power to hear the parties further upon any question involved in the determina- ' tion of the main action but it retained jurisdiction to protect and preserve' the property which was the subject of' the litigation. See section 7588 C.L. 1913; Mitchell v. Roland, 95 Iowa 314, 63 N.W. 606; Brinkman v. Ritzinger, 82 Ind. 358; Beard v. Arbuckle, 19 W.Va. 145; Penn Mut. Ins. Co. v. Semple, 38 N.J.Eq. 314; and generally the note in 72 Am.St.Rep. page 39; High on Receivers, § 110; 3 C.J. 1268 et seq.”

The court was fully warranted in the appointment of a receiver in this action.

The judgment of the district court is affirmed.

MORRIS, C. J., and JOHNSON, BURKE and SATHRE, JJ., concur.

On Petition for Rehearing.

GRIMSON, Judge.

The defendants filed a petition for rehearing claiming that the trial court had had no authority tor issue the preliminary injunction because the defendants were -in possession of the land involved under a claim of ownership; that an injunction could not be substituted for an action at law for possession of real property and that the plaintiff instead of suffering an irreparable injury received a benefit from the defendants’ farming the land in 1953.

This is an action to quiet title in the plaintiff and for an injunction and an accounting. A temporary restraining order was issued on the filing of the complaint. A temporary injunction may be issued by the court in its discretion at the commencement of an action if by the pleadings and supporting affidavits the court deems sufficient grounds exist therefor. Sec. 32-0603, NDRC 1943. “This provision vests in the trial court the discretion to determine in the first instance whether a temporary injunction shall be granted * •* Gillies v. Radke, 78 N.D. 974, 985, 54 N.W.2d 155 162. See also Donovan v. Allert, 11 N.D. 289, 297, 91 N.W. 441, 58 L.R.A. 775; Sand v. Peterson, 30 N.D. 171, 176, 152 N.W. 271; 43 C.J.S., Injunctions, § 14, p. 420. An order to show cause including a restraining order may be issued if it is “shown in the moving papers that there exists such an exigency or occasion as requires- the immediate issuance of an order so that the rights of the parties may be preserved.” 32-0607, NDRC 1943. The purpose of such restraining order is to keep matters in status quo until a determination is made whether a temporary injunction should issue.

“A temporary restraining order, while in effect a species of injunction, is in some respect to be distinguished therefrom. It is an interlocutory order or writ issued by the court upon an application for an injunction, and is intended as a restraint on the defendant until the propriety of granting a preliminary injunction can be determined, thus going no further in its operation than to preserve the status quo until that determination. When that determination is made, the whole force of the-temporary restraining order, ceases by its own limitations.” 28 Am.Jur. Sec. 11, p. 203, See also 43 C.J.S., Injunctions, § 8, p. 415.

In the case at'bar statements were made in the complaint and affidavits that the plaintiff was the owner of the land involved; that the defendants were trespassing upon said land; that they had illegally removed the 1952 crops off the premises and a portion, of the buildings; that they were by force keeping the plaintiff’s tenant, who was ready to go on and farm the premises in 1953, off the land; that this could cause the plaintiff irreparable injury for which she had no adequate remedy at law. These allegations would seem to raise an exigency justifying the district court in the exercise of its discretion to issue its order on April 4, 1953, to the defendants to show cause on May 8, 1953,

why the temporary injunction should not he granted and to determine the propriety thereof, restraining the defendants in the meantime from interfering with plaintiff’s possession so as to preserve the status quo until such hearing.
“It is not necessary that the complainant’s rights be clearly established, or that the court find complainant is entitled to prevail on the final hearing. It is sufficient if it appears that there is a real and substantial question between the parties, proper to be investigated in a court of equity, and in order to prevent irremedial injury to the complainant, before his claims can be investigated, it is necessary to prohibit any change in the conditions and relations of the property and of the parties during the litigation.” Goldfield Consolidated Mines Co. v. Goldfield Miners’ Union No. 220, C.C., 159 F. 500, 511.

When an injunction is granted without notice the defendant may at any time before trial apply to the court to vacate or modify the same. Sec. 32-0609, NDRC 1943.

In the case at bar, the defendants, on April 6, 1953, were served with the restraining order and accompanying papers. On April 16, 1953, the defendants answered on the merits claiming ownership of the premises and asked that the title thereto be quieted in them and that “the complaint be dismissed and that plaintiff take nothing.” No motion was made that the temporary restraining order be dissolved. On April 24, 1953, an affidavit of prejudice was filed against Judge Wigen. On May 1 Judge Amundson was designated by the supreme court to hear the case. On May 2, 1953, the defendants, Dan and John Gunsch, filed their return to the order to show cause making reference to and incorporating their answer therein. No request was made.for.a dissolution of the temporary - restraining order. On May 6, 1953, Judge Amundson set a new hearing on the order to show cause and. restraining order for May. 18, 1953. On May 13, 1953, plaintiff filed a reply to defendant’s counterclaim making general denial and specific denial of defendant’s ownership of the land in question. . On May 18, the defendants filed “return to application for temporary injunction,” praying that it be denied and plaintiff granted no temporary relief whatsoever. Both parties filed further affidavits in support of their claims. There is no, record, however, of any hearing being had on May 18, 1953, or of any order having been entered in the matter and certainly no appeal was taken from any action of the court on that order to show cause.

In the case of Gillies v. Radke, 78 N.D. 974, 54 N.W.2d 155, the situation was somewhat similar to the one at bar except that the claims of the defendants were stronger. The plaintiff obtained a deed to the premises. Defendants had been leasing the land for some years past and were lawfully in possession. The plaintiff brought suit for an injunction to restrain the defendants from interfering with the plaintiff’s possession under his deed alleging the defendants were trespassers. The court forthwith granted a preliminary injunction .restraining the defendants from interfering with plaintiff’s ' use and occupancy of the premises and directed the defendants to show cause why such an order should not be continued until final judgment. The plaintiffs went into possession. The defendants claimed to have a right to possession of the premises under a lease with an option to buy which they claimed to have exercised. A hearing on the order to show cause was had upon which the court continued the temporary injunction. No appeal was taken from that order. The court says:

“It may be as the defendants contend that the trial court improvidently issued the temporary injunction and that instead of preserving the status quo it disturbed it by placing the plaintiffs in possession of the land. However, both the original issuance of the injunction and its subsequent continua- ■ .tion at the close of the hearing of May 10 were orders issued by a court that had jurisdiction of both the subject • matter and the parties. No appeal was taken from the order continuing the injunction, as might have been done under the provisions of Section 28-2702, NDRC 1943. * * *”

The defendants in the instant case did not have to wait until May 18th. They could have made a motion at once to dissolve the preliminary restraining order. They did not do that. In 43 C.J.S., Injunctions, § 247, p. 986, it is said: “A formal motion to dissolve ordinarily is necessary, unless the answer contains a prayer for dissolution.” In Manhatten Mfg. & Fertilizing Co. v. Van Keuren, 23 N.J.Eq. 251, the court holds that:

“The existing injunction can be removed only upon notice and motion to dissolve. Without such notice and motion I shall not assume to consider the propriety of its continuance.”

In the instant case the defendants made no motion to dissolve the restraining order or to force a decision so that an appeal could be taken on the propriety thereof.

It is clear that if there was any question about the propriety of the trial court issuing the temporary restraining order that was waived by the failure of the defendants to move that it be quashed, Sec. 32-0609, NDRC 1943, and by the failure to insist on a dissolution upon the hearing set for May 18, and finally by the submission of the whole matter for trial on the merits.

In the petition for a rehearing the defendants further contend that the court had no jurisdiction in the contempt proceedings because of irregular procedure and the invalidity of the temporary injunction.

On May 28 plaintiff made application for an order to show cause why the defendants should not be punished for contempt of court, setting forth the violation of the restraining order issued by Judge Wigen on April 4, and filed affidavits in support thereof. On June 1 Judge Wigen issued an order to show cause on June 10 why defendants should not be punished for contempt of court for failing to obey such restraining order. On June 8 plaintiff filed an affidavit of prejudice against Judge Wigen in the contempt matter and on June 12 Judge Amundson was designated in his place. On July 21, 1953, Judge Amundson issued an order to show cause on July 22 why the defendants should not be punished for contempt. On July 23, defendants filed a “return to injunction and contempt” in which they admit farming the land but claim they did so on advice of their counsel to the effect that the injunctional order was void. Thereafter it was stipulated that the contempt proceedings be submitted on the evidence received in the joint trial of six related cases then pending. Upon the evidence so received the trial court issued the final injunction prayed for, appointed a receiver and found the defendants guilty of contempt.

The procedure for the contempt proceedings was in accordance with the statute. The court may punish as for civil contempt any person guilty of violation of an order by which the pending proceedings may be impaired. 27-1003, NDRC 1943. The procedure was in accordance with subdivision 1, Sec. 27-1007, NDRC 1943, by the issuance of an order to show cause.

Instead of bringing the contempt matter on for hearing the defendants, claiming the advice of counsel, proceeded contemptuously to do the things they had been enjoined from doing.

As already stated, the restraining order was not void. We have also held that even if its issue were irregular it had to be obeyed until it was vacated by the court.

In Glein v. Miller, 45 N.D. 1, 176 N.W. 113, 115, we said:

“To hold that an order improvidently issued can be violated with impunity is to invite litigants to resort to the use of force sufficient to maintain their rights as they understand them -to be. Such a policy should not be adopted in the system of law that prides itself upon having a remedy for every wrong.”

In State v. Markuson, 7 N.D. 155, 73 N.W. 82, this court held: “An injunc-tional order in an equity case, pendente lite, issued by a court having full equity powers and complete jurisdiction of the subject-matter, must be obeyed while it remains in force, however irregularly or erroneously it may have been issued.” In State v. Simpson, 78 N.D. 360, 366, 49 N.W. 2d 777, 783, we said: “The defendant is given the right to move for the vacation of an injunction at any time, but until he does so, and the court finally grants his application the injunction prevails and a violation thereof would constitute contempt of court.” See also Hodous v. Hodous, 76 N.D. 392, 36 N.W.2d 554, 12 A.L.R.2d 1051.

We find the proceeding initiating the contempt regular and the preliminary restraining order the defendants were charged with violating valid. We adhere to our original decision.

The petition for a rehearing is denied.

BURKE, C. J., and JOHNSON, SATHRE and MORRIS, concur.