dissenting.
PART I. FOR A BETTER UNDERSTANDING OF APPLICABLE LAW
The majority opinion proceeds as though considering I.C. § 18-8002 as a criminal statute with criminal penalties. The legislature clearly declared the penalty for withholding consent to be civil in nature. This is the determinative issue of this case, because Public Law 280 limited the jurisdiction states could assume over civil litigation.
The legislative language is not open to debate:
Be it Enacted by the Legislature of the State of Idaho:
Section 1. It is the intent of the Legislature that any suspension of a driver’s license under the provisions of section 18-8002, Idaho Code, be separate and apart from any other suspension of a driver’s license imposed by a conviction under the provision of chapter 80, title 18, Idaho Code, or any other Idaho motor vehicle law. A suspension under Section 18-8002, Idaho Code, which is a civil penalty, is for the refusal to take the test for blood-alcohol concentration and not a portion of any sentence for the underlying offense of driving under the influence of alcohol, drugs or other intoxicating substances.
Act of July 1, 1987, ch. 220, 1987 Sess. Laws 469 (emphasis added). Idaho Code § 18-8002 may be applied in this case only through I.C. § 67-5101. Reduced to its essentials, I.C. § 67-5101 reads as follows:
[I]n accordance with the provisions of 67 Statutes at Large, page 589 (Public Law 280) [Idaho] 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 [C]ountry located within this state, ... and obligates and binds this state to the assumption thereof:
G. Operation and management of motor vehicles upon highways and roads maintained by the county or state, or political subdivisions thereof.
(Emphasis added.)
A first question to be asked and answered is: How much in accordance with Public Law 280 is I.C. § 67-5101G? This requires examination of Section 7 of Public Law 280. It provides:
SEC. 7. 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.
(Emphasis added.) However, Section 7 does not provide a complete answer. Section 4(a) of Public Law 280 defines when and to what extent Idaho may obtain jurisdiction over civil causes of action:
SEC. 4. Title 28, United States Code, is hereby amended by inserting in chapter 85 thereof immediately after section 1359 a new section, to be designated as section 1360, as follows:
§ 1360. State civil jurisdiction in actions to which Indians are parties.
(a) [Idaho] shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian [CJountry ... to the same extent that [Idaho] has jurisdiction over other civil causes of action, and those civil laws of [Idaho] that *1016are of general application to private persons or private property shall have the same force and effect within such Indian [Cjountry as they have elsewhere within the State.
(Emphasis added.)
Case-law precedent from other jurisdictions and Idaho supply the general understanding of the purpose and effect of Sections 4 and 7. Up until the issuance of the majority opinion in this case, this Court, the United States Supreme Court, and other influential writers on the subject have all come to the same conclusion. Public Law 280 did not grant the states jurisdiction of all civil matters.
In a law review article written by Daniel Israel and Thomas Smithson, staff attorneys for the Native American Rights Fund, the authors explained what sort of civil jurisdiction a literal reading of Public Law 280 allows:
A fair reading of these two clauses [from § 4] suggests that Congress never intended ‘civil laws’ to mean the entire array of state non-criminal laws, but rather that Congress intended ‘civil laws’ to mean those laws which have to do with private rights and status. Therefore, ‘civil laws ... of general application to private persons or private property’ would include the laws of contract, tort, marriage, divorce, insanity, descent, etc., but would not include laws declaring or implementing the states’ sovereign powers, such as the power to tax, grant franchises, etc. These are not within the fair meaning of ‘private’ laws.
Israel & Smithson, Indian Taxation, Tribal Sovereignty and Economic Development, 49 N.D.L.Rev. 267, 196 (1973) (emphasis added, ellipses in original).
This passage was quoted with approval in Bryan v. Itasca County, 426 U.S. 373, 384 n. 10, 96 S.Ct. 2102, 2108 n. 10, 48 L.Ed.2d 710 (1976). The United States Supreme Court opinion agreed with the article’s characterization of § 4 of Public Law 280:
Piecing together as best we can the sparse legislative history of § 4, subsection (a) seems to have been primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens, by permitting the courts of the States to decide such disputes; this is definitely the import of the statutory wording conferring upon a State ‘jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in ... Indian country ... to the same extent that such State ... has jurisdiction over other civil causes of action.’ With this as the primary focus of § 4(a), the wording that follows in § 4(a) — ‘and those civil laws of such state ... that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State’ — authorizes application by the state courts of their rules of decision to decide such disputes.
Bryan, 426 U.S. at 383-384, 96 S.Ct. at 2108 (footnote omitted).
This Court cited to Bryan, and to the article just discussed, in Sheppard v. Sheppard, 104 Idaho 1, 13, 655 P.2d 895, 907 (1982). In that opinion, Justice Shepard wrote:
In Bryan, the [United States Supreme] Court undertook the most comprehensive examination of Public Law 280 to date, and while it is not directly on point, we look to it for whatever guidance it may offer. Itasca County attempted to levy a personal property tax on a mobile home owned by an enrolled member of the Minnesota Chippewa Tribe which was located on trust land within the boundaries of the Leech Lake Reservation. The Court held that there was no inherent authority to tax the property so located, and that Public Law 280 did not grant the states such a right. Examining and quoting unpublished transcripts of the hearings on the House bill, it was revealed that the purpose behind the civil jurisdiction section was to provide Indians access to state courts, ‘to redress the lack of adequate Indian forums for resolving private legal disputes between *1017reservation Indians, and between Indians and other private citizens, by permitting the courts of the States to decide such disputes.’ 426 U.S. at 383, 96 S. Ct. at 2108.
Hence, we conclude that Bryan draws a clear distinction between state regulatory and taxing activity, which is not authorized by Public Law 280, and state jurisdiction over private civil actions [such as] divorce, which is authorized by that law.
Sheppard, 104 Idaho at 13, 655 P.2d at 907 (emphasis added).
The United States Supreme Court recently reinvigorated this interpretation of Public Law 280 in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). Referring to Bryan, the Court said:
We held [in Bryan\ therefore, that Minnesota could not apply its personal property tax within the reservation. Congress’ primary concern in enacting Pub.L. 280 was combatting lawlessness on reservations. Id., at 379-380, 96 S.Ct., at 2106-2107. The Act plainly was not intended to effect total assimilation of Indian tribes into mainstream American society. Id., at 387, 96 S.Ct., at 2210. We recognized that a grant to States of general civil regulatory power over Indian reservations would result in the destruction of tribal institutions and values. Accordingly, when a State seeks to enforce a law within an Indian reservations under the authority of Pub.L. 280, it must be determined whether the law is criminal in nature, and thus fully applicable to the reservation under § 2, or civil in nature, and applicable only as it may be relevant to private civil litigation in state court
Cabazon, 107 S.Ct. at 1088 (emphasis added). The Court determined that California’s bingo statute regulating the playing of bingo games was not criminal but regulatory in nature, and the state therefore did not have the jurisdiction to enforce the statute on Indian lands:
California argues, however, that high stakes, unregulated bingo, the conduct which attracts organized crime, is a misdemeanor in California and may be prohibited on Indian reservations. But that an otherwise regulatory law is enforceable by criminal as well as civil means does not necessarily convert it into a criminal law within the meaning of Pub.L. 280. Otherwise, the distinction between § 2 and § 4 of that law could easily be avoided and total assimilation permitted.
Id., at 1089 (some emphasis added).
PART II. A CORRECT APPLICATION OF GOVERNING LAW
The following appears to be the holding achieved in Idaho by today’s majority, and as well it comprises the total extent of the ratio decendi which moves it to the holding:
Defendants acknowledge the state of Idaho has authority to enforce the operation of 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.
117 Idaho at 1014, 793 P.2d at 687 (1990) (emphasis added.) That the defendants so “acknowledge” lends no support to the majority’s conclusion that the state’s jurisdiction over enforcement and punishment of *1018motor-vehicle-related criminal offenses committed upon the state highways ipso facto also extends to enforce the civil provisions of I.C. § 18-8002. Idaho Code § 18-8002 is declared a civil penalty, as the legislature wrote in the King’s English. To presume that the state’s properly assumed jurisdiction over the enforcement of criminal offenses also includes the enforcement of § 18-8002 is simply wrong.
I remind the majority that this Court authored, and in 1982 the legislature accordingly enacted, legislation which made into infractions conduct which had theretofore constituted misdemeanor criminal offenses. Section 49-1502 and section 49-1505 of that act contain provisions identical in substance to § 18-8002, insofar as embodying the suspension of a driver’s license is concerned, as may be readily noted:
49-1502. Procedure for processing infraction citations. — An infraction is a civil public offense, but____7
49-1505. Suspension of operator’s license for failure to pay underlying traffic infraction penalty — Appeal.—(1) The department shall immediately suspend the license, permit and operating privileges of any operator or chauffeur upon receiving notice from any court of the state that a person has failed to pay the penalty for a traffic infraction judgment.
In the instance before us today, the legislature acting of its own volition, created yet another civil infraction to wit, refusing an officer’s request to submit to a test for sobriety. By implicitly considering I.C. § 18-8002 as a criminal offense — because it is found in the Criminal Code (put there by the codifiers of the Idaho Code, and in the company of other offenses such as the Motion Picture Fair Bidding Act)— and citing to this Court’s holding in State v. Michael, 111 Idaho 930, 729 P.2d 405 (1986), the majority incorrectly addresses the issue presented. Public Law 280 did not authorize the state of Idaho to assume jurisdiction over all cases involving civil and regulatory disputes. Up until now, this Court has admirably applied the limiting language of I.C. § 67-5101, in accordance with Public Law 280, including Section 4(a).
Another statement by the majority that requires negative comment is the insistence that McCormack’s and Cree’s consent to the breath tests was voluntary:
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____ By their voluntary acts in submitting to the § 18-8002 evidentiary test, defendants have waived any suppression issue that may have existed.
117 Idaho at 1014-1015, 793 P.2d at 687-688 (some emphasis added.) This italicized statement above is incorrect. A good share of the oral argument included the issue of voluntariness as against the contention that the defendant’s submission to a test was coerced by the threats of the officers that the defendants would be deprived of their drivers’ licenses if they did not take the tests. Also it was on that basis that the conditional pleas of guilty were entered.
The majority points out that McCormack and Cree entered conditional plea agreements in order to appeal the trial court’s admission of the breath test results. For the reasons stated herein, the arresting officers did not have authority to threaten *1019McCormack and Cree with the implied consent law. The tribal council had never been asked to give its consent to being bound by, of all things, the state’s implied consent statute, I.C. § 18-8002. My memory not failing me, I clearly recall one member of the Court posing this question to the deputy attorney general at oral argument: Supposing the officer had threatened to cut off one of McCormack’s ears if he did not consent to taking the test? The consents were indeed coerced by threats of seizure and suspension of driving licenses. The defendants therefore are clearly entitled to withdraw their pleas of guilty.
The state might do well to take the simple step heretofore not takén, i.e., request the consent of the tribal councils involved throughout the state. There is no reason whatever for indulging in the belief that the councils are unwilling to do their part in diminishing the carnage daily taking place on roads and highways of the state and its political subdivisions. That the state today gathers a majority of this court’s membership willing to join Justice Boyle’s opinion does not suggest that the state is serving its intended purpose of highway safety. The majority’s error is failing to take heed that I.C. § 67-5101, as presently written, is not in accordance with the federal enabling legislation.
ON DENIAL OF PETITION FOR REHEARING
. That same 1982 legislation also amended I.C. § 18-111 to read as it now does:
18-111. Felony, misdemeanor and infraction defined. — A felony is a crime which is punishable with death or by imprisonment in the state prison. An infraction is a civil public offense, not constituting a crime, which is punishable only by a penalty not exceeding one hundred dollars ($100) and for which no period of incarceration may be imposed. Every other crime is a misdemeanor.