State v. McCormack

BOYLE, Justice.

James McCormack and Casey Cree, both enrolled members of the Néz Perce Tribe, challenge the jurisdiction of the State of Idaho to require them to submit to breath tests under Idaho’s implied consent statute, I.C. § 18-8002. The cases are consolidated on appeal because similar facts and identical legal issues are presented to the Court.

McCormack was driving a motor vehicle on U.S. Highway 95 within the Nez Perce *1010Indian Reservation in Lewis County when he was stopped by a deputy sheriff, arrested and advised that he must submit to an evidentiary breath alcohol test or, upon refusal to take the test, have his driving privileges suspended for one hundred eighty days. McCormack voluntarily submitted to the evidentiary test. He was charged with driving under the influence of intoxicants, in violation of I.C. § 18-8004. The charge was subsequently reduced to a misdemeanor in violation of I.C. § 18-8005(2) to which McCormack entered a conditional plea of guilty under I.C.R. 11(a)(2), and appeals the magistrate’s denial of his motion to suppress the results of the evidentiary test.

Casey Cree was driving a motor vehicle on Highway 12 within the Nez Perce Indian Reservation in Nez Perce County when he was stopped by a member of the Idaho State Police, arrested and transported to the Lewiston Police Department where he was advised that he must submit to an evidentiary breath test or have his driving privileges suspended for one hundred eighty days. Cree also voluntarily submitted to the evidentiary test. Cree thereafter entered a conditional plea of guilty, and now appeals from the judgment of conviction and the magistrate court’s denial of his motion to suppress the results of his test.

The only issues on appeal before this Court are those specific issues which were reserved in the written conditional plea agreements of each defendant. I.C.R. 11(a)(2) clearly requires that any issue desired to be reserved for appeal must be specified in writing.1 McCormack specifically reserved a challenge to the use of the breath test as being beyond the jurisdiction granted to the state of Idaho,2 and Cree specifically reserved the right to appeal the district court’s decision denying his motion to suppress the breath test because he was an Indian arrested within the boundaries of a reservation.3 In addition, Cree reserved the issue of the increased suspension period in I.C. § 18-8002. We conclude that both defendants properly reserved their rights to appeal the jurisdictional issues.

In both of these consolidated cases, defendants challenge the jurisdiction of the State of Idaho to require them to submit to a test of their breath under the implied consent statute, I.C. § 18-8002, on the grounds that as Indians, arrested within the boundaries of the Nez Perce Indian Reservation, 1) the state has not obtained the consent of the Nez Perce Tribe for any new assumption of criminal jurisdiction; 2) the penalty has been doubled from ninety to one hundred eighty days without the necessary consent of the Nez Perce Tribe; and/or 8) the statute is civil/regulatory in nature and the state has never assumed or been granted that jurisdiction.

Defendants first contend that I.C. § 18-80024 is an increased penalty crime *1011and, as such, is an assumption of a new criminal jurisdiction requiring tribal consent. Defendants assert that the State has not obtained consent from the Nez Perce Tribe for assumption of this new criminal jurisdiction, and consequently I.C. § 18-8002, requiring an evidentiary test, seizure of license and an increased suspension term upon refusal to take the breath test, is not enforceable against tribal members when arrested or cited in Indian Country. Indian Country is defined by Congress as that land within the limits of an Indian reservation. 18 U.S.C. § 1151.

Public Law 280, passed by Congress on August 15, 1953, automatically transferred to five states, and offered all other states, certain limited jurisdiction over Indians within Indian Country. Act of Aug. 15, 1953, ch. 505, § 7, 67 Stat. 590, as amended 25 U.S.C. §§ 1321-1326 (1970), is commonly referred to as Public Law 280. The United States Supreme Court determined that Congress’ motivation for enacting Public Law 280 “was centrally to curb lawlessness on the reservations and secondarily to cure the lack of adequate Indian forums for resolving private disputes.” Sheppard v. Sheppard, 104 Idaho 1, 13, 655 P.2d 895, 907 (1982), citing Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976).

In several prior decisions of this Court we have carefully analyzed the legislative history and policy of Public Law 280 and the various amendments to that statute, as well as the Idaho legislation that has followed since its enactment. Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982); State v. Major, 111 Idaho 410, 725 P.2d 115 (1986); State v. Michael, 111 Idaho 930, 729 P.2d 405 (1986). It is not necessary for purposes of this appeal to restate that legislative process and history in detail, nor is it necessary to restate the entire body of law that has developed in this state as a result of Congress’ enactment of Public Law 280 other than to refer to the guiding canons of construction and the basic legal principles involved when dealing with state jurisdiction over Indians. Indian tribal members are generally under the exclusive jurisdiction of the United States Government; however, states may be given specific authority by Congress over certain Indian affairs that affect the various states. United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938); State v. Michael, 111 Idaho 930, 729 P.2d 405 (1986); Boyer v. Shoshone-Bannock Indian Tribes, 92 Idaho 257, 441 P.2d 167 (1968). When addressing issues of state jurisdiction in Indian Country, we are guided by the canon of construction that state and federal legislation passed for the benefit of Indians is to be construed in the Indians’ favor. State v. Major, 111 Idaho 410, 725 P.2d 115 (1986); Sheppard *1012v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982). Likewise, statutes and legislation involving Indian rights are to be construed liberally in favor of the Indians, with any ambiguous provisions interpreted to their benefit in order to respect and preserve the vestigial Indian sovereignty. State v. Major, 111 Idaho at 416, 725 P.2d at 121. The law is well established that the standard of construction requires this Court to narrowly construe any statutes extending state jurisdiction over Indian Country. Id. Sheppard v. Sheppard, 104 Idaho at 15, 655 P.2d 895.

The relevant language of Public Law 280 (Section 7) provided:

The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.

Pursuant to Public Law 280, the Idaho legislature enacted Chapter 51, Jurisdiction in Indian Country, I.C. § 67-5101, wherein the state assumed jurisdiction for civil and criminal enforcement over certain matters, including operation of motor vehicles, arising in Indian Country. Idaho assumed criminal and civil jurisdiction over certain activities in Indian Country within the state under § 7 of Public Law 280 and I.C. § 67-5101, which provides in pertinent part:

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 county located within this state, as Indian county 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. Operations and management of motor vehicles upon highways and roads maintained by the county or state, or political subdivisions thereof (Emphasis added.)

In 1968, Congress passed the Indian Civil Rights Act, repealing Section 7 of Public Law 280 and thereby changing the method whereby a state could assume jurisdiction over Indians for acts committed in Indian Country. This new statute required states to obtain consent from the Indian tribes prior to assumption of any jurisdiction and provides:

The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over any or all of such offenses committed within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over any such offense committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State. (Emphasis added.)

25 U.S.C. § 1321.

The consent provision of the 1968 statute was not made retroactive, and its clear language specifies that it applies only to states not previously having jurisdiction over criminal offenses committed in Indian Country and the amendment did not affect *1013prior assertions of jurisdiction under Public Law 280.5 The Ninth Circuit Court of Appeals considered the scope of § 1321 and observed, “[Tjhus, by its own terms, it cannot apply at all to states granted jurisdiction by other statutes____” United States v. Hoodie, 588 F.2d 292 (Or.1978).

Several states obtained jurisdiction directly and automatically under § 2 of Public Law 280, however, Idaho was one of the states not expressly enumerated, and obtained its jurisdiction under § 7 by the legislature’s affirmative action. Idaho thus acquired jurisdiction, as well as the responsibility, to enforce certain civil and criminal state laws including the operation and management of motor vehicles upon its highways and roads located within Indian reservations. Accordingly, Idaho had previously been granted jurisdiction over these areas of law enforcement pursuant to § 7 of Public Law 280, and enactment of I.C. § 67-5101, prior to the Congress’ enactment of § 1321. The limiting language of § 1321, enacted by Congress in 1968, does not require further tribal consent, nor does it limit Idaho’s jurisdiction to enforce its motor vehicle laws upon Indian reservations because that jurisdiction had been granted and assumed prior to enactment of § 1321. Although § 1321 of the 1968 Indian Civil Rights Act repealed § 7 of Public Law 280, it specifically did not “affect any cession of jurisdiction made pursuant to such section prior to its repeal” (Civil Rights Act of 1968, P.L. No. 90-284, 82 Stat. 73, Sec. 403(b)) or rescind those areas of jurisdiction already assumed. State v. Michael, 111 Idaho 930, 932, 729 P.2d 405, 407 (1986). Jurisdiction assumed by Idaho in 1963 was not altered by the enactment of § 1321 and the repeal of § 7 of Public Law 280. In State v. Michael, we held that the state of Idaho has jurisdiction for enforcement and punishment of criminal offenses relating to the operation of motor vehicles upon highways maintained by the state of Idaho within the boundaries of Indian reservations, and that the validity of I.C. § 67-5101 was not changed or altered by the repeal of § 7, Public Law 280, and observed that, “... those areas over which the state had assumed jurisdiction in 1963 remain under state jurisdiction.” State v. Michael, 111 Idaho at 932, 729 P.2d at 407.

Prior to the enactment of I.C. § 67-5101 the Idaho legislature had enacted I.C. § 49-352 which provided for a ninety-day license suspension for failure to submit to a breath test. In 1984, the legislature repealed I.C. § 49-352 and enacted § 18-8002 which provided for a one-hundred-eighty-day suspension period. The increased suspension period does not constitute a substantial change in the law or new assumption of jurisdiction requiring tribal consent. The state of Idaho had previously assumed jurisdiction in this area of the law pursuant to Congress’ consent in 1963, and further permission or consent from the Nez Perce Tribe, under 25 U.S.C. § 1321, is not required for enforcement of I.C. § 18-8002. Enactment of further procedures and an increase or change in penalty as implemented by the Idaho legislature in I.C. § 18-8002 does not alter the area of jurisdiction assumed by the state and, although the statute has been amended to increase the suspension period, it is not a substantial change sufficient to warrant invalidating the jurisdiction which had been conferred and assumed by the state of Idaho in 1963.

In the alternative, defendants contend that I.C. § 18-8002 is civil/regulatory in nature and the state of Idaho has never assumed jurisdiction in that area. Defendants contend that even though Idaho has been asserting civil jurisdiction since 1963 when I.C. § 67-5101 was enacted, the United States Supreme Court held that Public Law 280 authorized the states to assume only criminal jurisdiction. It is important to note that the statute specifically being challenged by defendants is the implied consent statute, not the driving under the influence statute. Defendants candidly acknowledge, however, that this distinction is narrow. The implied consent law, I.C. *1014§ 18-8002, is a part of the Idaho statutory scheme prohibiting driving while under the influence of intoxicating substances, and is codified in the section of the Idaho Code entitled “Crimes and Punishments.” Although under I.C. § 18-8002(3) a driver has the physical ability to refuse to submit to an evidentiary test, that section did not create a statutory right in a driver to withdraw his implied consent or to refuse to submit to an evidentiary test to determine his blood alcohol level. State v. Woolery, 116 Idaho 368, 775 P.2d 1210 (1989).6 In examining the history of Idaho’s implied consent statute, we conclude that it is an integral part of the driving under the influence statute, and is clearly part and parcel of the motor vehicle laws of this state.

Defendants acknowledge the state of Idaho has authority to enforce the motor vehicle laws of this state in Indian Country pursuant to the consent provided in Public Law 280 and as implemented by the Idaho legislature in I.C. § 67-5101. However, defendants argue that the state does not have jurisdiction to enforce the evidentiary test provisions of I.C. § 18-8002, because they are enrolled members of the Nez Perce Tribe and the incidents giving rise to their arrests and the resulting charges occurred within the boundaries of the Nez Perce Reservation. The state of Idaho, clearly having the jurisdiction and responsibility for enforcement and punishment of criminal offenses relating to the operation of motor vehicles upon the highways and roads maintained by the state and its political subdivisions within the boundaries of Indian reservations, State v. Michael, 111 Idaho 930, 729 P.2d 405 (1986), also has jurisdiction to enforce the provisions of I.C. § 18-8002 for the same reasons. The implied consent law of I.C. § 18-8002 is ancillary to, and in aid of, Idaho’s policy of enforcing its driving under the influence laws, and is specifically intended by the legislature to supplement the enforcement of its policy to protect the driving public and enforce the safe operation of motor vehicles upon the highways and roads of the state, including those that are located in or upon Indian reservations.

Having concluded that I.C. § 18-8002 is a valid exercise of Idaho’s jurisdiction on an Indian reservation, we now address the underlying issue of defendant’s argument that the results of the breath tests should be suppressed. In both cases before this Court, the defendants voluntarily submitted to the evidentiary breath test required by I.C. § ,18-8002. Their voluntary submission to the test renders moot any challenge that otherwise may have been present related to the suppression issues. Neither the actual results of the tests nor the procedure involved in the analysis of the tests have been challenged by defendants. Rather, the defendants challenge only the state’s right to *1015advise and administer the test under I.C. § 18-8002. By their voluntary acts in submitting to the § 18-8002 evidentiary test, defendants have waived any suppression issue that may have existed.

Neither the magistrate nor the district court erred in refusing to suppress the evidence obtained as a result of the tests.

Accordingly, the decision of the district court is affirmed.

BAKES, C.J., JOHNSON, J. and TOWLES, D.J. (Pro Tem.) concur.

. Rule 11(a)(2) requires that the conditional plea be 1) in writing, and 2) specify the adverse ruling. The relevant portion of the rule provides:

(2) Conditional Pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving in writing the right, on appeal from the judgment, to review any specified adverse ruling. If the defendant prevails on appeal, he shall be allowed to withdraw his plea. (Emphasis added.)

. The McCormack conditional plea agreement stated, "[Djefendant reserves the right to withdraw his plea of guilty to the above charge if the defendant successfully challenges the state’s use of the breath test results as being beyond the jurisdiction of the state of Idaho in reference to the Notice of Suspension under I.C. § 18-8002, for an arrest of an Indian within the boundaries of the Nez Perce Indian Reservation____” (Emphasis added.)

. The Cree conditional plea agreement clearly addressed the adverse ruling and reserved "the right to appeal this Court’s Opinion of December 30, 1987, ... to his motion to suppress the breath test results of defendant, an Indian arrested within the boundaries of the Nez Perce Indian Reservation____” (Emphasis added.)

. I.C. § 18-8002(3) provides in pertinent part as follows:

18-8002. Test of driver for alcohol concentration. — (1) Any person who drives or is in actual physical control of a motor vehicle in this state shall be deemed to have given his consent to an evidentiary test for concentration of alcohol, drugs or other intoxicating substances as defined in section 18-8004, Idaho Code, provided that such test is adminis*1011tered at the request of a police officer having reasonable grounds to believe that person has been driving or in actual physical control of a motor vehicle while under the influence of alcohol, drugs or of any other intoxicating substances.
(3) At the time an evidentiary test for concentration of alcohol, drugs or other intoxicating substances is requested, the person shall be informed that if he refuses to take the test:
(a) His license will be seized by the police officer and a temporary permit will be issued; provided, however, that no peace officer shall issue a temporary permit pursuant to this section to a driver whose license or permit has already been and is suspended or revoked because of previous violations;
(b) He has the right to request a hearing within seven (7) days to show cause why he refused to take the test;
(c) If he does not request a hearing or does not prevail at the hearing, his license will be suspended absolutely for one hundred eighty (180) days; and
(d)After submitting to the test he may, when practicable, at his own expense, have additional tests made by a person of his own choosing.
(4) If the motorist refuses to take the evidentiary test after the information has been given in accordance with subsection (3) above:
(a) His license or permit shall be seized by the police officer and forwarded to the court and a temporary permit shall be issued by the police officer which allows him to operate a motor vehicle until the date of his hearing, if a hearing is requested, but in no event for more than thirty (30) days; provided, however, that no peace officer shall issue a temporary permit pursuant to this section to a driver whose license or permit , has already been and is suspended or revoked because of previous violations; ... (Emphasis added.)

. See Goldberg, Public Law 280: The limits of State Jurisdiction over Reservation Indians, 22 U.C.L.A. L.Rev. 535 (1975).

. In State v. Woolery, 116 Idaho 368, 775 P.2d 1210 (1989), we held:

The Idaho Legislature has acknowledged a driver’s physical ability to refuse to submit to an evidentiary test, but it did not create a statutory right for a driver to withdraw his previously given consent to an evidentiary test for concentration of alcohol, drugs or other intoxicating substances.
Importantly, the pre-1983 statute, I.C. § 49-352, covering implied consent to extract blood for a blood alcohol test, stated: "If such person having been placed under arrest and having thereafter been requested to submit to such chemical test refuses to submit to such chemical test the test shall not be given but the department shall suspend his license or permit to drive____’’ The 1984 legislature repealed I.C. § 49-352, the legislative precursor of § 18-8002, and adopted § 18-8002 as a part of the new chapter 80 of title 18. In addition to maintaining the pre-1983 implied consent language and the 1983 deletion of the language just discussed, this enactment added a section making it clear that a driver does not have the right to consult with an attorney before submitting to an evidentiary test. The state submits that the elimination of the statutory provision that the test shall not be given if it is refused, the continued use of the pre1983 implied consent language, the addition of a specific statutory provision making it very clear that a driver does not have a right to consult with an attorney before submitting to the evidentiary test, along with the statement of purpose enacted as a part of the 1983 Act, reflect the legislative "get tough” policy. This legislative "get tough”policy did not include the creation of a statutory right for a driver to refuse to submit to an evidentiary test requested by an officer who has reasonable cause to believe that such driver is under the influence. (Emphasis added.)

Woolery, 116 Idaho at 372, 775 P.2d at 1214.