concurring in the result.
The majority opinion holds that Idaho state courts have jurisdiction over the crime of a non-Indian driving under the influence of alcohol or drugs, I.C. § 18-8004 (1987), within the boundaries of an Indian reservation on a road not maintained by the state. The majority finds two alternative bases for this jurisdiction: an extension of United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1882), and a judicial expansion of I.C. § 67-5101 (1989). While McBratney is a proper basis for state jurisdiction, I.C. § 67-5101 is not.
I. UNITED STATES V. MCBRATNEY JURISDICTION
When determining issues of jurisdiction in Indian country one must begin with 18 U.S.C. § 1152 (1984):
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 stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
*380The federal government’s jurisdiction over Indian country derives from its constitutional treaty-making and commerce powers, and from the judicially created theory of the federal government as trustee of the Indian people and Indian lands. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 503, 504 (1976).
An exception to the federal jurisdiction defined by 18 U.S.C.A. § 1152 was carved out in United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1882), which held that states have jurisdiction over crimes committed by non-Indians against non-Indians in Indian country. In creating this exception
[t]he Court paid scant attention to the language of section 1152, relying instead on the inherent jurisdiction exercised by the states over Indian lands within their borders as a consequence of their admission to the Union without an express disclaimer of jurisdiction. Although this logic would apply equally well to interracial or even intra-Indian crimes committed on Indian lands, the Supreme Court has applied the McBratney analysis only to crimes committed on Indian lands between non-Indians. Indeed, dicta in later cases suggest that the non-ward status of the accused and victim divests the federal government of any interest in .prosecution despite the occurrence of the crime in Indian country. Accordingly, McBratney and its progeny are expressly limited in application to crimes between non-Indians on Indian lands.
Clinton, 18 Ariz.L.Rev. at 525 (footnotes omitted).
Whether states have jurisdiction over “victimless” crimes committed by a non-Indian in Indian country has yet to be addressed by the United States Supreme Court. Several state courts, to which the majority has cited in today’s opinion, have decided that states do have jurisdiction over these crimes. Of these, only State v. Thomas, 233 Mont. 451, 760 P.2d 96 (1988), has offered a rationale for making the jurisdictional leap from non-Indian against non-Indian crimes to victimless crimes committed by a non-Indian: “In practice, victimless offenses by non-Indians have been treated in a number of cases as subject to state jurisdiction under McBratney and Draper [v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896)], on the theory that neither Indians nor their property are affected.” 760 P.2d at 98 (quoting M.B. West, Manual of Indian Criminal Jurisdiction 99 (1977 & Supp.1982)).
The key to the McBratney exception to federal jurisdiction in Indian country, and the key to resolving the issue of extending McBratney to victimless crimes by non-Indians, is whether the principle of federal protection of Indians and tribal interests is violated by replacing federal with state jurisdiction. Thus in the present case, the pivotal question is whether allowing the state of Idaho to exercise jurisdiction over a DUI offense by a non-Indian on an Indian reservation will affect Indians, Indian property, or tribal interests.
The defendant asserts that the DUI offense on the Nez Perce Indian Reservation is a crime against the general Indian populace. The purpose of the DUI statute is to protect bystanders and other drivers, as well as the intoxicated driver himself, from the intoxicated driver. The people who are primarily affected by a person driving under the influence on the reservation are the Indians who live on the reservation. In some sense then, this offense must be considered a crime by a non-Indian against Indians.
The primary rationale for federal jurisdiction over interracial crimes in Indian country is that a local state court or jury might be prejudiced in favor of the non-Indian defendant or victim and prejudiced against the Indian defendant or victim. While this danger of prejudice is clear in a murder trial, for example, it is not so evident in a prosecution for driving under the influence. In the case of a DUI prosecution, it can be reasonably assumed that the state court or jury will approach a DUI offense committed on a reservation with the same seriousness and concern with which they would approach a DUI offense committed off a reservation. Therefore, in *381the narrow instance of a non-Indian driving under the influence in Indian country, state court jurisdiction is not improper and can be taken through a limited extension of the McBratney holding.
II. I.C. § 67-5101 JURISDICTION
In the concluding paragraph of its opinion the majority asserts that the state has jurisdiction over the operation of motor vehicles in Indian country on roads not maintained by the state. A quick reading of I.C. § 67-5101 shows that this is incorrect:
67-5101. State jurisdiction for civil and criminal enforcement concerning certain matters arising in Indian Country. — The state of Idaho, in accordance with the provisions of 67 Statutes at Large, page 589 (Public Law 280) hereby assumes and accepts jurisdiction for the civil and criminal enforcement of state laws and regulations concerning the following matters and purposes arising in Indian country located within this state, as Indian country is defined by title 18, United States Code 1151, and obligates and binds this state to the assumption thereof:
A. Compulsory school attendance
B. Juvenile delinquency and youth rehabilitation
C. Dependent, neglected and abused children
D. Insanities and mental illness
E. Public assistance
F. Domestic relations
G. Operation and management of motor vehicles upon highways and roads maintained by the county or state, or political subdivisions thereof.
(Emphasis added). Idaho’s jurisdiction over the operation of motor vehicles on roads in Indian county is expressly limited to those roads maintained by the state.
In 1953, Congress enacted Public Law 280, 18 U.S.C. § 1162 (1984), which empowered states to assume jurisdiction over Indian affairs by affirmative legislative action. Pursuant to P.L. 280, Idaho assumed jurisdiction over Indian affairs in certain substantive areas by the enactment of I.C. § 67-5101. In 1968, Congress passed the Indian Civil Rights Act, 25 U.S.C. § 1321(a) (1983), which amended P.L. 280 to require formal tribal consent to the assumption of any additional state jurisdiction over Indians. In addition to the federal statute which requires tribal consent to additional state jurisdiction, Idaho itself has a statute which requires tribal consent for the assumption of additional state jurisdiction. I.C. § 67-5102 (1989).
Despite all of this, the majority opinion states that:
It is settled beyond dispute that the state of Idaho has jurisdiction over certain acts, including the operation of motor vehicles, occurring on an Indian reservation. State v. McCormack, 117 Idaho 1009, 793 P.2d 682 (1990); State v. Michael, 111 Idaho 930, 729 P.2d 405 (1986). Accordingly, we hold that the State’s interests in maintaining traffic safety and protecting the travelling public, Indian and non-Indian alike, controls the issue regardless of whether the motor vehicle is being operated on a road maintained by the State or a political subdivision.
Op. at 379, 807 P.2d at 58 (emphasis added). While the state does have jurisdiction over the operation of motor vehicles in Indian country on roads maintained by the state, it does not have jurisdiction over roads not maintained by the state. Neither McCormack nor Michael purport to expand jurisdiction over roads not maintained by the state. Such expansion of state jurisdiction contravenes the tribal consent requirements of the Indian Civil Rights Act and I.C. § 67-5102, and impermissibly erodes tribal sovereignty. The state legislature cannot expand state jurisdiction over Indian affairs without tribal consent — and this Court most certainly cannot do so on its own and without tribal consent, even if it believes that the state has an overriding interest in protecting the travelling public.