specially concurring.
Having joined the majority opinion, I write only to observe that this case, of necessity, must be applied narrowly to the precise facts before the Court today— abuse of an Indian child by its Indian parent or legal custodian. My area of concern is that energetic and resourceful county prosecutors around the state might misinterpret our opinion to mean that the state may properly file a criminal action in state court against any Indian under I.C. § 18-1501 for felony injury to any child. For the reasons stated below, I believe that such an assertion of state court jurisdiction would be improper, and any judgment of conviction issuing therefrom would be void.
As the majority opinion observes at page 1319, our legislature responded to Public Law 280 by enacting I.C. § 67-5101 in 1963. By this statute, the state assumed jurisdiction, civil and criminal, within Indian country with regard to dependent, neglected and abused children. A significant problem arises, however, from the fact that the statute under which Marek was convicted, I.C. § 18-1501, was passed in 1977.
A companion provision of I.C. § 67-5101 provides that assertions of state court jurisdiction subsequent to 1963 require tribal consent:
67-5102. Additional state jurisdiction with consent of tribe governing body. — Additional state jurisdiction in criminal and civil causes of action may be extended to particular reservations or Indian country with the consent of the governing body of the tribe occupying the Indian country effected [affected] by the assumption of such additional jurisdiction. This may be achieved by negotiation with the tribe or by unilateral action by the tribe. In every case the extent of such additional jurisdiction shall be determined by a resolution of the tribal governing body and become effective upon the tribe’s transmittal of the resolution to the attorney general of the state of Idaho. Such resolution may effectively accept jurisdiction as to any particular field of criminal or civil jurisdiction. All state jurisdiction extended by virtue of this act shall be concurrent (and not exclusive) with jurisdiction in the same matters existing in the tribes or the federal government.
Moreover, since 1968, further assertions of state court jurisdiction must comply with the Indian Civil Rights Act amendment to Public Law 280, 25 U.S.C. § 1326 which requires Indian consent via a special election. Cf. F. Cohen, Handbook of Federal Indian Law, pp. 362-63 (1982 ed.). Because “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the states,” Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980), quoted in California v. Cabazon Band of Mission Indians, — U.S. —, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987), a blanket application of I.C. § 18-1501 is proper only if the tribe has consented pursuant to 25 U.S.C. § 1326.
The root of the problem discussed here is the very broad wording of our Felony Injury to Children statute which refers to any person inflicting harm upon, or endangering, any child. In contrast, the language of I.C. 67-5101 refers only to “[dependent, neglected and abused children.” While the statute contains no definitional section, it is revealing that Idaho Code Title 16, Chapter 20, “Termination of Parent and Child Relationship,” also passed in 1963, defines “neglected” and “abuse” as follows:
d. “Neglected” used with respect to a child refers to those situations in which the child lacks proper support or parental care necessary for his health, morals, and well-being.
e. “Abuse” used with respect to a child refers to those situations in which physical cruelty in excess of that required for reasonable disciplinary pur*870poses has been inflicted by a parent or other person in whom legal custody of the child has been vested. I.C. § 16-2002(d) and (e) (emphasis added).
Thus, it is exceedingly likely that the pertinent provision of I.C. § 67-5101 was intended by our legislature to apply only to abuse of an Indian child by its Indian parent or legal custodian.
Between 1963 and 1977, there appears to have been only one Nez Perce Tribal Resolution, passed on April 13, 1965, consenting to additional state jurisdiction:
NOW, THEREFORE, BE IT RESOLVED, by the Nez Perce Tribal Executive Committee, the governing body of the Nez Perce Indian Reservation, in the aforesaid counties of the State of Idaho, at a duly constituted meeting of said Committee, that consent is given to the assumption by the State of Idaho of concurrent criminal jurisdiction within the Nez Perce Indian Reservation over the following offenses:
Drunkness, Disturbing the peace, Contributing to the delinquency of minors, Procuring intoxicants for minors, Simple assault, Battery, Kidnapping, Embezzlement, Fraud, Forgery, Receiving stolen property, Extortion, Indecency and obscenity, Vagrancy, Trespassing and malicious injuries to property, Public nuisance and abatement thereof, Cruelty to animals, and carrying concealed and dangerous weapons in public places (the carrying of firearms in pursuit of treaty hunting rights expressly excluded).
Tribal Resolution 65-126, quoted in State v. Major, 111 Idaho 410, 418, 725 P.2d 115, 123 (1986).
No area of criminal jurisdiction listed in this Tribal Resolution encompasses the type of behavior specified by Idaho’s felony injury to children statute.
Moreover, in this case, the state has made no showing, and there is nothing in the record to establish, that the Nez Perce tribe has conducted the special election procedures mandated by 25 U.S.C. § 1326. Indeed, as of the publication of the 1982 edition of Felix Cohen’s Handbook, no tribe in the United States has consented to additional state jurisdiction pursuant to 25 U.S.C. § 1326. Cf. Cohen, supra, p. 363, note 127.
It is critical to note that the state bears the burden of establishing its jurisdiction over an Indian in Indian country. State v. Major, 111 Idaho 410, 418, 725 P.2d 115, 123 (1986); State v. Allan, 100 Idaho 918, 920, 607 P.2d 426, 428 (1980); see also, Sheppard v. Sheppard, 104 Idaho 1, 15, 655 P.2d 895, 909 (1982). Because of the definitions of “abuse” and “neglected” contained in I.C. § 16-2002(d) and (e) quoted above, and for the foregoing reasons, it is unlikely that the state can sustain its burden of proving that the very broad wording of our felony injury to children statute establishes state court jurisdiction over any Indian defendants in Indian country other than parents or legal guardians of alleged victims.