U.S. v. Burch

Decision Date04 March 1999
Docket NumberNo. 97-1442,97-1442
Citation169 F.3d 666
Parties1999 CJ C.A.R. 1998 UNITED STATES of America, Plaintiff-Appellee, v. Steve A. BURCH, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Henry L. Solano, United States Attorney, Andrew A. Vogt, Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Steve A. Burch, pro se.

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Defendant-appellant Steve A. Burch appeals the district court's denial of his application for a writ of habeas corpus, which was construed as a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Because defendant has shown an unresolved factual question regarding the United States' jurisdiction over this case, and the government's evidence is insufficient to permit us to take judicial notice of where the offense was committed, we vacate the judgment and remand the case for further proceedings. 1

Defendant is an enrolled member of the Southern Ute Indian Tribe. On August 4, 1993, defendant was indicted by a federal grand jury for the crime of manslaughter, in connection with the death of an infant which occurred in the Meadowbrook Trailer Park, space # 39, in Ignacio, Colorado. The town of Ignacio is located entirely within the boundaries of the Southern Ute Indian Reservation. After a jury trial, defendant was convicted and sentenced to seventy-nine months' incarceration. His conviction was affirmed by this court in United States v. Burch, No. 94-1293, 1995 WL 94653 (10th Cir. Feb. 28, 1995) (unpublished order and judgment).

In July 1997, defendant filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, alleging the United States lacked subject matter jurisdiction over the crime for which he was convicted. Because the petition attacked the validity of defendant's underlying conviction, it was construed as a motion pursuant to 28 U.S.C. § 2255. The government's response relied on defendant's stipulation that the crime occurred within the exterior boundaries of the Southern Ute Indian Reservation to establish federal jurisdiction over the charged crime pursuant to the Indian Major Crimes Act, 18 U.S.C. § 1153(a). In defendant's reply, he clarified for the first time that his challenge to federal jurisdiction rested upon the operation of Public Law 98-290, § 5, which granted the State of Colorado criminal and civil jurisdiction within the boundaries of the town of Ignacio, Colorado. See Pub.L. No. 98-290, 98 Stat. 201 (1984), set out in the Historical and Statutory Notes following 25 U.S.C. § 668. The district court denied defendant's motion because the crime occurred within the boundaries of the Southern Ute Indian Reservation and thus was within the exclusive jurisdiction of the United States pursuant to the Indian Major Crimes Act.

On appeal, defendant argues that the State had exclusive jurisdiction over the offense because it occurred in Ignacio, Colorado, and therefore the United States lacked jurisdiction to try him under the Indian Major Crimes Act. The government argues that (1) notwithstanding the provisions of Public Law 98-290, the fact that the offense was committed by an Indian in Indian country gave the United States exclusive jurisdiction pursuant to the Indian Major Crimes Act; (2) Colorado never took the steps necessary to assume jurisdiction over Indians in Indian country pursuant to 25 U.S.C. § 1321(a); and (3) even if Colorado has jurisdiction over offenses committed within the town of Ignacio, the offense in this case was committed outside the town boundaries.

Challenges to a district court's subject matter jurisdiction may be raised at any time, including in a § 2255 motion for collateral review of a federal conviction. See United States v. Cuch, 79 F.3d 987, 990 (10th Cir.1996). Subject matter may not be conferred on a federal court by stipulation, estoppel, or waiver. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). We review jurisdictional issues de novo. See Cuch, 79 F.3d at 990.

"Criminal jurisdiction over offenses committed in 'Indian country,' 18 U.S.C. § 1151, is governed by a complex patchwork of federal, state, and tribal law." Negonsott v. Samuels, 507 U.S. 99, 102, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) (quotations omitted). Historically, based on principles of federal preemption and Indian sovereignty, "criminal offenses by or against Indians have been subject only to federal or tribal laws, except where Congress in the exercise of its plenary and exclusive power over Indian affairs has expressly provided that State laws shall apply." Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 470-71, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (quotation and citation omitted). In this case, we must examine the relationship between the Indian Major Crimes Act, codified at 18 U.S.C. § 1153, and several public laws which were enacted subsequently.

The Indian Major Crimes Act was enacted in 1885 to establish exclusive federal jurisdiction over certain enumerated felonies committed by "[a]ny Indian ... against the person or property of another Indian or other person ... within the Indian country." Id. § 1153(a). "Indian country" is defined to include, inter alia, "all land within the limits of any Indian reservation under the jurisdiction of the United States Government." Id. § 1151(a). The crime for which defendant was convicted, manslaughter, is one of the offenses enumerated in the Act. See id. § 1153(a).

In 1953, Congress enacted Public Law 280, ch. 505, 67 Stat. 588 (1953), which conferred upon certain states, known as the "mandatory states," criminal jurisdiction over offenses committed by or against Indians in identified portions of Indian country. See 18 U.S.C. § 1162. The law provided that § 1152 (enclave jurisdiction) and § 1153 (major crimes jurisdiction) would not apply to the areas of Indian country identified in the statute. See id. § 1162(c). The statute also gave the option to other states to assume jurisdiction over Indian country by affirmative legislative action. See § 7 of Pub.L. No. 280, 67 Stat. at 590, repealed by Pub.L. No. 90-284, § 403(b), 82 Stat. 79 (1968). This law was amended in 1968 to omit the requirement of affirmative legislative action and to require the consent of the Indian tribe by special election before a state could assume jurisdiction. See Pub.L. No. 90-284, §§ 401(a), 406, 82 Stat. 78, 80 (1968), codified at 25 U.S.C. §§ 1321(a), 1326. Colorado was not one of the states originally identified in Public Law 280, and, prior to 1984, had not assumed criminal jurisdiction in Indian country through the necessary procedures. See People v. Luna, 683 P.2d 362, 363-65 (Colo.Ct.App.1984) (holding State did not have criminal jurisdiction over offenses committed by Indians in Ignacio, Colorado, because it had not taken the action necessary to assume jurisdiction under Public Law 280).

In May 1984, six weeks after the Luna decision, Congress enacted Public Law 98-290, which represented a negotiated agreement between "[t]he Southern Ute Indian Tribe and the State of Colorado, together with the involved local governments." 130 Cong. Rec. 10,290 (1984). Section 5 of the law provides

The State of Colorado shall exercise criminal and civil jurisdiction within the boundaries of the town of Ignacio, Colorado, and any other municipality which may be incorporated under the laws of Colorado within the Southern Ute Indian Reservation, as if such State had assumed jurisdiction pursuant to the Act of August 15, 1953 (67 Stat. 588), as amended by the Act of April 11, 1968 (82 Stat. 79).

Pub.L. No. 98-290, § 5, 98 Stat. at 202. The question in this case, then, is whether Public Law 98-290 removed from the United States jurisdiction over Indian Major Crimes Act offenses committed in the town of Ignacio.

In construing Public Law 98-290, "[o]ur task is to give effect to the will of Congress." Negonsott, 507 U.S. at 104, 113 S.Ct. 1119 (quotation omitted). Based on both the language of Public Law 98-290 and its legislative history, we conclude that Congress intended to bestow upon the State of Colorado exclusive jurisdiction over the offenses described in the Indian Major Crimes Act, if committed within the boundaries of the town of Ignacio.

Public Law 98-290 provides that Colorado's exercise of jurisdiction should be "as if" the state had assumed jurisdiction pursuant to Public Law 280, as amended. Public Law 280, in turn, grants the named states exclusive jurisdiction over offenses occurring in identified portions of Indian country, expressly stating that the Indian Major Crimes Act does not apply to those areas. See Pub.L. No. 280, § 2, 67 Stat. at 589 (codified at 18 U.S.C. § 1162(c)); see also United States v. Hoodie, 588 F.2d 292, 294-95 (9th Cir.1978) (vacating federal conviction because exclusive jurisdiction granted to states under Public Law 280). We see no reason why this provision would not apply to vest Colorado with exclusive jurisdiction over the town of Ignacio. Cf. United States v. Felter, 546 F.Supp. 1002, 1017 (D.Utah 1982) ("Had Utah chosen to accept jurisdiction over the Ute reservation [pursuant to Pub.L. 280], its authority-and the limits thereon-would have been identical to those of Wisconsin or other 'mandatory' states."), aff'd, 752 F.2d 1505 (10th Cir.1985). But see United States v. High Elk, 902 F.2d 660, 660 (8th Cir.1990) (per curiam) (holding, without discussion, that the Indian Major Crimes Act was repealed only in those states originally identified in Public Law 280).

This conclusion is buttressed by statements made both in the House and Senate Reports and in introducing the bill on the House floor. The House Report for Public Law 98-290 states

H.R. 4176 would eliminate ... uncertainty by confirming the boundaries of the reservation and by...

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