¶1(dissenting).
¶2On 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.
¶3On 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.
¶4*518The Devils Lake Indian Reservation is “Indian country.” Title 18, U.S.C.A. § 1151.
¶5It 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.
¶6On 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.
¶7But 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.
¶8It 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.”
¶9I have italicized the language which it is contended thwarts the vesting of criminal jurisdiction involved in this case.
¶10! 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 *519owe 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.
¶11It 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.
¶12Draper 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.”
¶13The 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 allot*520ments 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.”
¶14It 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.
¶15The 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.
¶16The 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.
¶17In 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.’ ”
¶18After 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.”
¶19The 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 *521statutes 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.”
¶20That 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.
¶21In 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.”
¶22In 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.”
¶23Here, 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.
¶24*522In 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.”
¶25Here 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.
¶26It 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.”
¶27My 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.