No. 88-152
I N THE STJPREME COURT O F T H E S T A T E O F MONTANA
1988
S T A T E O F MONTANA,
P l a i n t i f f and A p p e l l a n t ,
-vs-
J A M E S THOMAS,
D e f e n d a n t and R e s p o n d e n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of R o s e b u d ,
T h e H o n o r a b l e A l f r e d B . C o a t e , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , Helena, Montana
G e o r g e Schunk, A s s t . A t t y . G e n e r a l , Helena
For R e s p o n d e n t :
G e o r g e T. Radovich, Billings, Montana
S u b m i t t e d on B r i e f s : July 14, 1988
Decided: A u g u s t 25, 1988
Filed: a 62
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
The State appeals the decision of the Sixteenth Judicial
District Court contending that the lower court erred in
construing the limits of its jurisdiction. We agree with the
State and reverse.
The issue is: Do state courts have jurisdiction over a
non-Indian charged with violating S 61-7-108, MCA, on an
Indian reservation? Section 61-7-108, MCA, reads:
Immediate notice of accidents. The driver of a
vehicle involved in an accident resulting in injury
to or death of any person or property damage to an
apparent extent of $250 or more shall immediately
by the quickest means of communication give notice
of such accident to the local police department if
such accident occurs within a municipality,
otherwise to the office of the county sheriff or
the nearest office of the highway patrol.
The relevant facts are as follows: Respondent Thomas
allegedly struck a calf owned by the Parkers, an Indian
family ranching on the Northern Cheyenne Reservation. The
State alleged that Thomas violated the statute by leaving the
scene of the accident without giving notice to law
enforcement.
The District Court held that state courts do not have
jurisdiction for the crime of failing to report an accident
where: the accident occurred within the reservation, the
driver was a non-Indian, and the property involved in the
accident belonged to an Indian. The lower court reached its
conclusion by applying Oliphant v. Suquamish Indian Tribe
(1978), 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, and the
adoption of the enabling act of Montana under Article I of
the Montana Constitution. Oliphant, according to the lower
court, prevents jurisdiction of the offense at issue in
tribal court because respondent Thomas is a non-Indian. The
Montana Constitution, according to the lower court, prevents
jurisdiction in state courts under Montana's enabling act
because the act provides that reservations are under the
absolute jurisdiction of the United States. We disagree with
the lower court and reverse on the authority of United States
v. Wheeler (1978), 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d
303, and Draper v. United States (18961, 164 U.S. 240, 1 7
S.Ct. 107, 41 L.Ed. 419. We hold for the purposes of remand
that the state has jurisdiction.
First, in regard to the lower court's holding on Article
I of the Montana Constitution, the lower court failed to
consider Draper. Draper held that the prohibition in
Montana's enabling act against state jurisdiction on Indian
reservations did not prevent the State from assuming
jurisdiction of crimes committed by non-Indians against
non-Indians. Draper, 164 U.S. at 244.
Construction of the applicable federal jurisdictional
statute also confirms that state courts have jurisdiction of
certain crimes committed on Indian reservations. The
statute, 18 U.S.C. § 1152, reads
Except as otherwise expressly provided by law,
the general laws of the United States as to the
punishment of offenses committed in any place
within the sole and exclusive jurisdiction of the
United States, except the District of Columbia,
shall extend to the Indian Country.
This section shall not extend to offenses
committed by one Indian against the person or
property of another Indian, nor to any Indian
committing any offense in the Indian country who
has been punished by the local law of the tribe, or
to any case where, by treaty stipulation, the
exclusive jurisdiction over such offenses is or may
he secured to the Indian tribes respectively.
18 U.S.C. § 1152 (1983).
According to the United States Supreme Court:
Despite the statute's broad language, it does
not apply to crimes committed by non-Indians
against non-Indians, which are subject to state
jurisdiction.
Wheeler, 435 U.S. at 325 n. 21. Thus, Oliphant ' s rule
mandating federal jurisdiction for crimes committed by
non-Indians against Indians or their property does not apply
unless § 61-7-108, MCA, can be classified as a crime against
an Indian or an Indian's property.
The difficulty here is in classifying an offense under §
61-7-108, MCA, as one by a non-Indian against an Indian or an
Indian's property. The State argues that the offense
constitutes a victimless crime because it makes the
perpetrator culpable irrespective of injury to person or
property. In this situation, the State argues that the
following analysis applies:
[Iln determining whether a state may properly
assert its authority over the conduct of
non-Indians engaging in activity on the
reservation, the court should analyze the nature of
the state, federal, and tribal interests at stake.
See White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 144-45, 100 S.Ct. 2578, 2584, 65 L.Ed.2d
Prosecution of the possessory offense involved
in the case at bar within the state courts involves
no infringement on tribal sovereignty. Burrola is
a non-Indian whose alleged offense did not arise
out of contact with an Indian or Indian property.
State v. Burrola (Ariz. App. 1983), 669 P.2d 614, 615. Other
courts facing inquiries concerning "victimless" crimes, such
as DUT or possession of marijuana, have analyzed the issue in
a similar manner. See State v. Warner (N.M. 1963), 379 P.2d
66; State v. Herber (Ariz. App. 1979), 598 ~ . 2 d1033. ~ n d
one authority has explained that:
Under the logic of United States v. McBratney
and Draper v.United States, victimless crimes by
non-Indians appear to be subject to state
jurisdiction. Those cases held that jurisdiction
over crimes by non-Indians against non-Indians in
Indian country rests with the state. However,
their reasoning and their holdings appear broad
enough to encompass non-Indian victimless offenses
as well. McBratney concluded that the state
maintained iurisdiction over all white persons on
the Ute reservation, and Draper held that the state
had not been deprived of the power to punish crimes
committed on a reservation "by other than Indians
or against Indians." In practice, victimless
offenses by non-Indians have been treated in a
number of cases as subject to state jurisdiction
under McBratney and ~ r a ~ e ron the theory that
,
neither Indians nor their property are affected.
M.B. West, Manual of Indian Criminal Jurisdiction 99 (1977 &
Supp. 1982).
Thomas responds that the crime charged here
distinguishes this case from decisions by other courts on
victimless crimes. Thomas points out that in Burrola, for
example, the court described the crimes as not arising from
contact with Indian property. Here, Thomas argues, the crime
did arise from contact with Indian property, to wit, Parkers'
calf.
First, we agree with the State and hold that the crime
in question cannot be characterized as an offense against
Indian property. The allegedly criminal act is the failure
to discharge a reporting duty, not infliction of damage upon
property belonging to an Indian. Thus, the offense is
analogous to crimes other courts classify as victimless, and
it should be analyzed as a victimless crime for the purposes
of determining jurisdiction.
In determining jurisdiction for victimless crimes, we
agree that federal, tribal, and state interests should be
examined. Burrola, 669 P.2d at 615. We hold here that the
federal and tribal interests in providing a federal forum
fail to outweigh the State's strong interest in traffic
safety. Our reasoning is based on the fact that the policy
of providing a federal forum where criminal prosecutions pit
the interests of non-Indian offenders against Indian victims
is not furthered where, as here, the connection to
destruction of Indian property is only tangential to the
crime charged. Under these circumstances, the State's
interests in highway safety control the issue. Thus, we
reverse and remand for further proceedings.
Thomas, without raising the issue in the lower court,
and without cross-appealing, has improperly attempted to
claim denial of the right to a speedy trial on this appeal.
See Rule 14, M.R.App.P. We refuse to review the issue. 1
Chief Justice
Justices