dissenting.
The majority concludes that defendant’s challenge to the circuit court’s authority to enforce state criminal law against him for his conduct at the Wildhorse Casino on the Umatilla Indian Reservation presents a challenge to the court’s subject matter jurisdiction and, hence, is a challenge that he can raise for the first time on appeal. I respectfully disagree. Federal law limits Oregon’s authority to apply its criminal law against people who commit crimes at the Wildhorse Casino, but that limit affects who can be subjected to state criminal law in state court, which, as I will explain, is a matter of personal rather than subject matter jurisdiction. Because defendant’s challenge presents a challenge to the court’s authority over him, rather than to the court’s subject matter jurisdiction, it is a challenge that cannot be raised for the first time on appeal. The majority errs in concluding otherwise and, as a result, in vacating defendant’s convictions and remanding the case to the trial court to resolve defendant’s belated jurisdictional challenge.
As the majority correctly notes, federal law limits the application of state criminal law against people who *772commit crimes in Indian country. See, e.g., State v. Jim, 178 Or App 553, 556-57, 37 P3d 241, rev dismissed, 335 Or 91 (2002). The question that we must decide is whether the effect of that limit is to alter the subject matter jurisdiction of state courts in the affected states or, instead, to identify people against whom states cannot apply their criminal law.
I believe that the answer to that question begins with ORS 131.215, which identifies who is subject to prosecution in state court for state criminal offenses. It provides that
“a person is subject to prosecution under the laws of this state for an offense that the person commits by the conduct of the person * * * if:
“(1) Either the conduct that is an element of the offense or the result that is an element occurs within this state [.] ”
The Supreme Court identified ORS 131.215 in State v. Terry, 333 Or 163, 186 n 14, 37 P3d 157 (2001), cert den, 536 US 910 (2002), as among the Oregon statutes that address “principles of personal jurisdiction in criminal matters.”
The court’s identification of ORS 131.215 as a personal-jurisdiction statute fits the basic distinction that Oregon courts have consistently drawn between personal and subject matter jurisdiction. In Oregon, the circuit court is the court that has subject matter jurisdiction over the prosecution of state criminal offenses. See Terry, 333 Or at 186; see also Greeninger v. Cromwell, 127 Or App 435, 438, 873 P2d 377 (1994) (discussing principles of subject matter jurisdiction). Whether a particular person is subject to prosecution in circuit court for a criminal offense, that is, whether the person is someone whose conduct brings the person within the reach of ORS 131.215, presents a question of personal rather than subject matter jurisdiction.
In that light, the limitation imposed by federal law on Oregon’s authority to prosecute Indians who commit crimes in Indian country can be seen to affect personal rather than subject matter jurisdiction. The effect of that law is to limit the reach of ORS 131.215 by preempting its application to Indians who commit crimes in Indian country. That limitation does not alter the subject matter jurisdiction *773of the circuit court, which continues to be the court that has jurisdiction over the prosecution of state criminal offenses.
My understanding of the effect of federal law on state jurisdiction over criminal offenses committed by Indians in Indian country is consistent with the Oregon cases that have grappled with that issue. State v. Smith, 277 Or 251, 560 P2d 1066 (1977), for example, involved the prosecution of an enrolled member of the Warm Springs Indian Tribe for escape from custody while on the Warm Springs Indian Reservation. The defendant had been in state custody in Jefferson County and had been transported by jail staff onto the reservation to obtain dental services, where he had escaped. In response to the state’s suggestion that the crime of escape might have been committed partially on the reservation and partially off the reservation, the court observed:
“We do not necessarily disagree with such contentions or with the underlying assumption that the crime of escape may be a continuing crime, depending upon the facts. According to the record in this case, however, the conduct of this defendant in escaping from the custody of the officer occurred solely and entirely upon the Warm Springs Indian Reservation. * * *
“* * * There was no evidence that in the course of his escape defendant went upon any portion of Jefferson County except that portion on which the Warm Springs Indian Reservation is located. Under this evidence, we hold that the State of Oregon had no jurisdiction to prosecute, try and convict this defendant.”
Id. at 257-58. In short, the factual issue in the case concerned the location of the crime, which governed whether Oregon could apply its criminal law to the defendant.
The determination in Smith that the state lacked jurisdiction “to prosecute, try and convict [the] defendant” does not mean that the circuit court lacked subject matter jurisdiction over the case. It means only that the circuit court had erred by failing to dismiss the indictment or grant a judgment of acquittal because the defendant was not someone against whom the state could impose criminal liability for his conduct on the Warm Springs Reservation. *774The circuit court was the state court that had subject matter jurisdiction to impose that liability, if the state otherwise had the authority to do that, because it was the state court that had jurisdiction to adjudicate cases involving the application of state criminal law to people accused of crime. In other words, the lack of state jurisdiction to impose criminal liability against the defendant in Smith does not equate with a lack of subject matter jurisdiction of the circuit court to adjudicate a case that seeks to impose that liability.
Defendant cites State v. Jim, 81 Or App 189, 725 P2d 372 (1986) (Bruce Jim), for the proposition that the state must prove facts establishing jurisdiction. That unremarkable proposition, however, does not answer the question presented here. Under ORS 161.055(1), when a defense other than an affirmative defense is “raised at a trial,” the state has the burden of disproving it. However, under subsection (3) of that statute:
“The state is not required to negate a defense as defined in subsection (1) of this section unless it is raised by the defendant. ‘Raised by the defendant’ means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant’s case in chief.”
ORS 161.055(3). Several cases concerning the intersection between state criminal law and tribal jurisdiction support the notion that certain matters pertaining to state jurisdiction are, in fact, treated as defenses that must be raised by a defendant.
In State v. Smith, 51 Or App 223, 625 P2d 1321, rev den, 291 Or 118 (1981), several defendants, members of the Warm Springs tribes, were charged in state court with unlawful possession of fish that had been unlawfully caught in another state. They moved to dismiss the charges, arguing that the state “lacked subject matter and personal jurisdiction in the case.” Id. at 227. The state’s theory of the case was that the fish had been illegally gill-netted. The defendants argued in support of their motion to dismiss that they had lawfully obtained the fish from Yakama Indians for ceremonial purposes, as permitted under a series of treaties between the federal government and various tribes of the *775Pacific Northwest. Id. at 226-28. In response to that argument, we stated:
“Defendants contend that according to federal case law, treaties and tribal resolutions, jurisdiction could only lie in the U. S. District or tribal courts. This position not only misinterprets federal Indian fishing law, it also confuses matters of jurisdiction with matters of defense?
Id. at 227 (emphasis added). We went on to describe at length the various tribal and federal laws governing the fishing at issue in the case, concluded that the defendants’ possession of the fish was not, in fact, governed by the treaties on which the defendants relied, and determined that Oregon had personal jurisdiction over the defendants because they had unlawfully transported the fish within the state of Oregon. Id. at 230; see also State v. Hendon, 61 Or App 123, 655 P2d 630 (1982), rev den, 294 Or 682 (1983) (concluding that trial court had erred in granting defendants’ motion to dismiss for lack of jurisdiction over the crime of unlawfully transporting fish based on assertions similar to those advanced in Smith, noting that “the trial court confused matters of jurisdiction with matters of defense”).
Those cases, though not spelling it out explicitly, all implicitly indicate that, when a factual issue is raised by the defendant about whether a tribal or a state (or a federal) court has jurisdiction over the defendant, we treat it as a matter of defense, and the state has the burden of disproving such a defense. Accord ORS 161.055. Those cases, however, simply do not support the proposition that defendant posits here—viz., that the state must disprove potential defenses even though they were not raised by defendant.
Bruce Jim is not to the contrary. In Bruce Jim, the defendant was convicted of unlawful sale of wildlife. He argued that, “because he is a member of a tribe that has reserved hunting rights (including the right to sell game) on off-reservation ceded lands, the state [had] no authority to enforce its wildlife laws against him.” 81 Or App at 191. Following precedent from the United States Supreme Court, we held that “there are three requirements that must be met before a state has the authority to impose its game regulations on treaty hunters in ceded territory.” Id. at 193. The *776state was required to show that the regulation is “reasonable and necessary” that the application of the regulation to the defendant is “in the interest of conservation,” and that the regulation does “not discriminate against treaty hunters.” Id. at 193-94. We noted that there had been no evidence presented that the regulation had a conservation purpose, “because the trial court [had] agreed with the state’s contention that [the state] need not present evidence to support [the state’s] jurisdiction over defendant.” Id. at 195. Accordingly, we reversed the defendant’s conviction. That case, like the others discussed above, can be said to stand for the unremarkable proposition that, when a defendant raises an issue concerning the state’s jurisdiction over the defendant (and specifically, an issue based on his or her status as an Indian), it is treated as a matter of defense that the state must disprove. Indeed, the court explicitly described the issue there as “jurisdiction over defendant” which is not the same as subject matter jurisdiction. Id. (emphasis added); accord State v. Jim, 81 Or App 177, 725 P2d 365 (1986), rev den, 302 Or 571 (1987) (Warner Jim) (discussing similar issue concerning the unlawful sale of fish by a tribal member and faulting the state’s proof of a conservation purpose, but nonetheless affirming the conviction after taking judicial notice of a case establishing conservation purpose).
My understanding of the interplay between federal Indian law and state jurisdiction over crimes committed in Indian country, that is, the effect of federal law on state jurisdiction, is consistent with the principles that apply to state long-arm jurisdiction. The Fourteenth Amendment to the United States Constitution limits the power of a state to subject a nonresident defendant to civil liability in its courts. As the Supreme Court has explained,
“a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State. ⅜ * * The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable functions. It protects the defendant against the burdens of litigating in a distant and inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond *777the limits imposed on them by their status as coequal sovereigns in a federal system.”
World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 291-92, 100 S Ct 559, 62 L Ed 2d 490 (1980).
The limit imposed on state power by the Fourteenth Amendment is understood to be a limit on the power of a state court to assert jurisdiction over a defendant, that is, as a limit on personal rather than subject matter jurisdiction. In that respect, ORCP 4, which specifies the circumstances in which an Oregon court may assert jurisdiction over a defendant in a civil case, is the counterpart of ORS 131.215, which specifies the circumstances in which an Oregon court may assert jurisdiction over a defendant in a criminal case. Both provisions are addressed to personal jurisdiction, as is the limit imposed by federal law on the authority of a state court to assert jurisdiction over an Indian for crimes committed in Indian country.
In sum, the issue that defendant attempts to raise here concerns whether the state can apply its criminal law against him for his conduct at the Wildhorse Casino, which depends on whether he is an Indian—who under federal law is not subject to state criminal liability for that conduct—or he is not an Indian—who is subject to that liability. That presents a question of personal rather than subject matter jurisdiction that defendant cannot raise for the first time on appeal.1
*778The majority relies for its contrary conclusion on a variety of authorities that do not directly address the question whether the federal limit on state authority to impose criminal liability against people for crimes committed in Indian country alters the subject matter jurisdiction of state courts. No Oregon case answers that question, and, as I have explained, all of the Oregon cases can be understood to be consistent with my understanding of federal law.2 None of the secondary sources cited by the majority answers the question, either. Finally, the federal cases cited by the majority provide no guidance because federal courts, by their nature, are courts of limited jurisdiction in which litigants must plead and prove that the claims that they seek to litigate come within the subject matter jurisdiction of the federal courts. See, e.g., Kokkonen v. Guardian Life Ins. Co., 511 US 375, 377, 114 S Ct 1673, 128 L Ed 2d 391 (1994).
Because the challenge that defendant raises is not a challenge to the trial court’s subject matter jurisdiction, the challenge is not one that defendant can raise for the first time on appeal. I respectfully dissent from the majority’s contrary conclusion.
The effect of federal law in that context is the same as the effect of diplomatic immunity on a state’s authority to prosecute people for crimes committed in the state. Diplomatic immunity in the United States is based on the Diplomatic Relations Act, 22 USC §§ 254a-254d, which makes the Vienna Convention applicable to the United States. The Vienna Convention, in turn, provides that a “diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” Vienna Convention on Diplomatic Relations, Apr 18, 1961, Art 31.1, 23 UST 3227. “Thus, under the * * * statute, if, at the time he was arrested, [the defendant] was entitled to diplomatic immunity under Article 37.1 of the Vienna Convention, the criminal proceedings against him must be dismissed.” United States v. Al-Hamdi, 356 F3d 564, 569 (4th Cir 2004); see also Diallo v. State, 413 Md 678, 700, 994 A2d 820 (2010) (“[I]f Petitioner was entitled to diplomatic immunity under the UN Convention and the Vienna Convention at the time the offense occurred or when he was arrested, the [Maryland] trial court should have dismissed the charges against him”). That limitation on state prosecutorial authority is a limit on a state court’s jurisdiction over a person whose status entitles the person to diplomatic immunity; it does not alter the court’s subject matter jurisdiction.
The only Oregon case cited by the majority that I have not discussed, State v. Columbia George, 39 Or 127, 65 P 604 (1901), adds nothing to the analysis. The defendant in Columbia George was an Indian who was convicted under Oregon law for murder for killing another Indian on the Umatilla Indian Reservation. The court reversed the conviction because federal law barred the state from prosecuting Indians for crimes committed in Indian country and, hence, the state court lacked jurisdiction over the offense. Columbia George is equivalent in its import to State v. Smith, which, as I have explained, see 277 Or App at 773-74, is consistent with my understanding of the effect of federal law on the prosecution of people in state court for crimes committed in Indian country.