State ex rel. Poll v. Montana Ninth Judicial Dist. Court, Glacier County
| Decision Date | 13 April 1993 |
| Docket Number | No. 91-635,91-635 |
| Citation | 851 P.2d 405,257 Mont. 512 |
| Parties | The STATE of Montana, ex rel., Stanford R. POLL, Arthur A. Lindlief and Donald C. Juneau, Relators, v. MONTANA NINTH JUDICIAL DISTRICT COURT, GLACIER COUNTY, The Honorable Robert S. Keller, Presiding Judge, Respondent. |
| Court | Montana Supreme Court |
Supreme Court of Montana.
Decided April 13, 1993.
Joseph R. Hunt (argued), Johnson & Hunt, Shelby, for Juneau.
Charles F. Moses, Moses Law Firm, Billings, for Lindlief.
Marcus S. Topel, David R. Callaway (argued), Topel & Goodman, San Francisco, CA, for Poll.
Marc Racicot, Atty. Gen., Deanne L. Sandholm (argued), Asst. Atty. Gen., Helena, James C. Nelson, Glacier County Atty., Cut Bank, for respondent.
This case arose from a criminal proceeding in Glacier County. The information charged 58 counts of misdemeanor conspiracy in violation of § 45-4-102(1), MCA, involving agreements to conduct illegal gambling activities at the Montana Restaurant and Casino on the Blackfeet Indian Reservation in Browning, Montana. Defendants moved to dismiss for lack of jurisdiction. The District Court for the Ninth Judicial District, Glacier County, denied the motion. This Court accepted supervisory control in The issues before us are:
order to determine the jurisdictional issue before trial. We affirm
1. For purposes of criminal jurisdiction, is a person an "Indian" if he has no Indian ancestry but has been adopted by an Indian family and raised on the reservation?
2. Does the State of Montana have jurisdiction over non-Indian defendants for crimes committed on the reservation where there is no Indian victim?
3. Does the State of Montana have authority to regulate gambling on the reservation?
Carl Kipp, Bob Juneau and defendant, Don Juneau operated the Montana Restaurant and Casino on the Blackfeet Reservation in Glacier County, Montana. The Blackfeet tribal business permit was in Carl Kipp's name. It was stipulated that Carl Kipp and Bob Juneau are Indians. Don Juneau's Indian status is at issue.
On November 9, 1988, the Glacier County Attorney, filed an information charging Stanford R. Poll (Poll), Arthur A. Lindlief (Lindlief) and Don Juneau with 58 counts of misdemeanor conspiracy in violation of § 45-4-102(1), MCA, involving agreements to conduct illegal gambling activities at the Montana Restaurant and Casino (Casino) in Browning, Montana. All offenses are alleged to have occurred between May 1, 1987, and June 1, 1988. The information charged the defendants with conspiring with Carl Kipp.
On February 23, 1989, defendants Lindlief and Poll filed a motion to dismiss the information for lack of jurisdiction because of (a) the exclusive territorial jurisdiction of the Blackfeet Tribe; (b) the sovereignty of the Blackfeet Tribe; (c) the preemption by the federal government under Article VI of the United States Constitution and controlling jurisdiction over all Indian affairs; and (d) the preemption by the Blackfeet Nation of jurisdiction over business activities within the exterior boundaries of the Blackfeet Reservation.
The State opposed the motion arguing that all three defendants--Poll, Lindlief and Don Juneau, were non-Indian; that the Casino was owned and operated by the defendants and not the Tribe; and the Tribe had not adopted any comprehensive scheme of legislation authorizing, controlling or regulating gambling on the Blackfeet Indian Reservation, whether by Indians or non-Indians.
Lindlief and Poll challenged the State's assertion concerning Don Juneau's non-Indian status and further contended that their criminal liability was predicated solely on the conduct of individuals who were Indians not subject to state jurisdiction and that the Casino was being operated pursuant to a tribal business license and gambling permit.
The District Court denied the motion to dismiss, however, urging this Court to accept an application for an appropriate writ in order to determine the jurisdictional question in advance of trial. Subsequently, Lindlief filed a petition for a writ of supervisory control with this Court. This Court denied the petition on the grounds there was not an adequate factual record upon which it could exercise supervisory control.
The District Court held an evidentiary hearing on May 19, 1990. Subsequent to the hearing, the parties again submitted briefs arguing the jurisdiction of the state court. The District Court again denied the defendants' motion to dismiss.
On December 31, 1991, Poll, Lindlief and Don Juneau again petitioned this Court to issue a writ of supervisory control. On March 10, 1992, this Court accepted jurisdiction of the application for writ of supervisory control to determine the jurisdictional issue before trial. Additional briefing was ordered and the case was orally argued before this Court on September 2, 1992.
For purposes of criminal jurisdiction, is a person an "Indian" if he has no Indian ancestry but has been adopted by an Indian family and raised on the reservation?
It was stipulated by the parties that Lindlief and Poll are not Indians. Therefore Defendants maintain that Don Juneau is an "Indian" for purposes of criminal jurisdiction. They maintain that Congress has not defined "Indian" as it is used in criminal jurisdiction statutes. They contend that since Don Juneau was adopted by Indian parents, under Montana adoption laws, he is also Indian. Section 40-8-125(1), MCA, provides:
this issue centers on defendant Don Juneau. Don Juneau was born of non-Indian parents but later adopted by an Indian, Benton Juneau. Don Juneau was raised on the Blackfeet Reservation and has lived and worked there all his life. Don Juneau testified that he is not enrolled as a member of any federally recognized Indian tribe; he does not vote in Indian elections; he does not receive any per capita federal benefits as an Indian; and, he has never held a Tribal office. He is married to a full-blooded member of the Rocky Boy Tribe and has children that are half Indian
After the final decree of adoption is entered, the relation of parent and child and all the rights, duties, and other legal consequences of the natural relation of child and parent shall thereafter exist between such adopted child and the adoptive parents adopting such child and the kindred of the adoptive parents.
Under this statute, the adopted child joins the adoptive family as if born to them. Don Juneau's father is 5/8 Indian. Thus, Don Juneau maintains that under the above statute, he is 5/16 Indian and therefore, is an "Indian" under federal and state law.
Defendants maintain that for purposes of criminal jurisdiction, "Indian" is a status, not a racial classification. United States v. Indian Boy X (9th Cir.1977), 565 F.2d 585 (); St. Cloud v. United States (D.S.D.1988), 702 F.Supp. 1456 ().
Defendants contend that although Don Juneau is not a tribal member and he has no Indian blood, everything else about his life is Indian; he was adopted by an Indian; attended Indian schools; practiced the Indian religion; participated in tribal customs; married an Indian; has Indian friends; and, has Indian children. Thus, defendants urge that Don Juneau is an Indian and meets the status of Indian for criminal jurisdiction purposes.
The State maintains that criminal jurisdiction of the state court over Don Juneau, is dependent upon a determination of Don Juneau's status as a non-Indian, citing State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983, where this Court adopted the two-prong test of United States v. Rogers (1845), 4 How. 567, 16 U.S. 200, for determining whether a person has Indian status: (1) the defendant must have a significant amount of Indian blood; and (2) the defendant must have federal or tribal recognition as an Indian. Don Juneau is unable to meet either prong of the test. The State urges that Don Juneau fails the first part of the test because he has no Indian blood. He fails the second part of the test because he is not an enrolled member of the tribe and he receives no federal benefits as an Indian.
The LaPier case is controlling. Under the second prong of the LaPier test, Don Juneau was required to show that he had federal or tribal recognition as an Indian. He has failed to submit any proof to demonstrate the Blackfeet Tribe has recognized him as an Indian. As previously pointed out, he is not an enrolled member of any Indian tribe and he receives no federal benefits as an Indian. We therefore conclude that Don Juneau has failed to prove that he has received federal or tribal recognition as an Indian. We conclude that Don Juneau has failed to meet the test of LaPier.
We do not find it necessary to discuss the issue from LaPier of the necessity of a significant amount of Indian blood. As mentioned, the defendants contend that such a definition is no longer appropriate because "Indian" is a status, and not a racial classification to be determined by We hold that Don Juneau is not an Indian for purposes of criminal jurisdiction.
quantity of Indian blood. Because Don Juneau has failed the second part of the LaPier test, no further discussion is necessary
Does the State of Montana have jurisdiction over non-Indian defendants for crimes committed on the reservation where there is no Indian victim?
Defendants maintain that when making a determination as to whether a state has jurisdiction over particular victimless crimes committed by non-Indians within the reservation, it is necessary to examine the federal, tribal and state interests involved to determine if the particular state has been preempted.
The respondents contend that the assertion of state authority within the...
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