State v. Flint, No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtGREER; CONTRERAS, P.J., and FIDEL
Citation157 Ariz. 227,756 P.2d 324
Docket NumberCA-CR,No. 1
Decision Date19 January 1988
PartiesSTATE of Arizona, Appellant, v. Conrad Marion FLINT, Appellee. 10650.

Page 324

756 P.2d 324
157 Ariz. 227
STATE of Arizona, Appellant,
v.
Conrad Marion FLINT, Appellee.
No. 1 CA-CR 10650.
Court of Appeals of Arizona,
Division 1, Department B.
Jan. 19, 1988.
Review Denied July 2, 1988.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div. and Paul J. McMurdie, Asst. Atty. Gen., Phoenix, for appellant.

David J. Martin, Navajo County Public Defender, Holbrook, for appellee.

OPINION

GREER, Judge.

Appellee Flint was charged by indictment in Navajo County with four counts of oral sexual contact with a minor and four counts of commercial sexual exploitation of a minor. In a separate indictment, he was charged with six counts of oral sexual contact with a minor and two counts of commercial sexual exploitation of a minor. Since the jurisdiction issue was not raised at trial by either party, the trial judge requested memoranda and oral argument. On July 30, 1986, the court heard oral argument on the issue of jurisdiction and, on August 7, 1986, ruling that it did not have jurisdiction, ordered dismissal of both indictments. The state filed a timely notice of appeal from the dismissal.

The only question the state raises on appeal is whether the trial court erred by dismissing the action on the grounds that the state court has no criminal jurisdiction where a non-Indian allegedly commits a crime against an Indian on the reservation. The state does not deny federal jurisdiction, but argues, without supporting authority, that the state and federal courts have concurrent jurisdiction. Defendant, on the other hand, argues that federal jurisdiction is exclusive. We agree with defendant's position.

Page 325

[157 Ariz. 228] The Indian Country Crimes Act, 18 U.S.C. § 1152, provides:

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.

The terms of this act include all offenses by non-Indians in Indian country. See F. Cohen, Handbook of Federal Indian Law 298 (1982 ed.) (Cohen). The United States Supreme Court carved out an exception to 18 U.S.C. § 1152 for offenses committed by non-Indians against non-Indians within Indian country. United States v. McBratney, 104 U.S. (14 Otto) 621, 26 L.Ed. 869 (1881). However, criminal offenses by non-Indians against Indians or their property remain subject to federal jurisdiction pursuant to the Indian Country Crimes Act. "The Supreme Court has stated that federal court jurisdiction under this Act is exclusive of state court jurisdiction." Cohen, at 353, citing Williams v. Lee, 358 U.S. 217, 220 n. 5, 79 S.Ct. 269, 270 n. 5, 3 L.Ed.2d 251 (1959); Williams v. United States, 327 U.S. 711, 714, 66 S.Ct. 778, 779-80, 90 L.Ed. 962 (1946).

The general rule outside Indian affairs is that the state and federal governments may separately punish the same conduct. Abbate v. United States, 359 U.S. 187 [79 S.Ct. 666, 3 L.Ed.2d 729] (1959). In certain areas Congress has preempted state jurisdiction. E.g., Pennsylvania v. Nelson, 350 U.S. 497 [76 S.Ct. 477, 100 L.Ed. 640] (1956). Indian affairs has long been an area of broad federal preemption, see [Cohen, Ch. 5, Sec. B] and that factor alone is sufficient to conclude that the states cannot punish Indian defendants in Indian country. See United States v. Kagama, 118 U.S. 375 [6 S.Ct. 1109, 30 L.Ed. 228] (1886). When a defendant is not Indian, traditional law from other fields might suggest that concurrent state and federal jurisdiction exists. But this traditional assumption is based on the typical situation where the state and federal governments seek to vindicate distinct governmental interests. The assumption has not been tested where both governments might seek to punish the same common law felony; in those circumstances, concurrent jurisdiction would be particularly troublesome. The potential for this problem arises in federal enclaves under concurrent jurisdiction. See United States v. State Tax Comm'n, 412 U.S. 363 [93 S.Ct. 2183, 37 L.Ed.2d 1] (1973). Congress is aware of this problem, and current drafts of a revised federal criminal code propose that federal court jurisdiction over concurrent enclaves would be deemed preemptive over common law felonies but not other crimes. See S. 1722, 96th Cong., 2d Sess. § 206 (1979). These considerations suggest that the exclusive jurisdiction ... is correct, but there may be concurrent state jurisdiction over a non-Indian defendant when there are victims of both races or in the class of "victimless" cases ...

Cohen, at 353 n. 44 (emphasis added).

In Williams v. United States, 327 U.S. 711, 714, 66 S.Ct. 778, 780, 90 L.Ed. 962 (1946), a non-Indian man was accused of having sexual intercourse with an underage Indian girl on the reservation; the United States Supreme Court preliminarily noted:

While the laws and courts of the State of Arizona may have jurisdiction over offenses committed on this reservation between persons who are not Indians, the laws and courts of the United States, rather than those of Arizona, have jurisdiction over offenses committed there, as in this case, by one who is not an Indian against one who is an Indian.

(Emphasis added.)

The state suggests that this language is mere dicta, unnecessary to sustain the

Page 326

[157 Ariz. 229] judgment of the court. Arizona Corp. Comm'n v. Mountain States Tel. & Tel. Co., 71 Ariz. 404, 228 P.2d 749 (1951). In Williams, the United States Supreme Court had to consider its own jurisdiction, but it did not have to consider whether Arizona and the federal courts had concurrent jurisdiction. While the language of Williams may have been dicta, it has not been seriously questioned. Cohen, at 353.

Williams cited Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), which held that federal courts have jurisdiction where a non-Indian kills an Indian on a reservation within state boundaries, as the basis for the above-quoted proposition. Donnelly emphasized the protective purpose of federal jurisdiction and, in turn, cited United States v. Kagama, 118 U.S. 375, 383, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886), which found exclusive federal jurisdiction where both the defendant and the victim were Indian because "the Indian tribes are the wards of the nation." Donnelly held that the ward rationale supporting exclusive federal jurisdiction applied "perhaps a fortiori--with respect to crimes committed by white men against the person or property of the Indian tribes while occupying reservations set apart for the very purpose of segregating them from the whites and others not of Indian blood." 228 U.S. at 271-72, 33 S.Ct. at 459. 1

Learned commentators on Indian law have also supported the result reached here. Cohen, at 298, states that Donnelly has consistently been followed and exclusive federal jurisdiction obtains where a non-Indian harms an Indian. Clinton, Criminal...

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7 practice notes
  • Oklahoma v. Castro-Huerta, 21-429
    • United States
    • United States Supreme Court
    • June 29, 2022
    ...243 Conn. 115, 128, and n. 21, 701 A.2d 13, 22, and n. 21 (1997); State v. Larson, 455 N.W.2d 600, 600-601 (S. D. 1990); State v. Flint, 157 Ariz. 227, 228, 756 P.2d 324, 324-325 (App. 1988); State v. Greenwalt, 204 Mont. 196, 204-205, 663 P.2d 1178, 1182-1183 (1983); State v. Warner, 71 N.......
  • State v. Moore, No. 1
    • United States
    • Court of Appeals of Arizona
    • November 17, 1992
    ...has held that federal jurisdiction is exclusive when a non-Indian commits a crime against an Indian in Indian country. State v. Flint, 157 Ariz. 227, 229, 756 P.2d 324, 326 (App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3228, 106 L.Ed.2d 577 The Supreme Court, however, has created a judi......
  • United States v. Peters, 3:16-CR-30150-RAL
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 15, 2017
    ...Donnelly v. United States, 228 U.S. 243, 271-72 (1913); United States v. Ramirez, 537 F.3d 1075, 1082 (9th Cir. 2008); State v. Flint, 157 Ariz. 227, 228-29, 756 P.2d 324, 325-26 (Ct. App. 1988), cert. denied, 492 U.S. 911 (1989); State v. Larson, 455 N.W.2d 600, 601 (S.D. 1990); see genera......
  • State v. Verdugo, No. 1
    • United States
    • Court of Appeals of Arizona
    • January 17, 1995
    ...jurisdiction over the criminal prosecution. See Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990); State v. Flint, 157 Ariz. 227, 756 P.2d 324 (App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3228, 106 L.Ed.2d 577 (1989); see generally 18 U.S.C. §§ 1152, 1153 (The Indian ......
  • Request a trial to view additional results
7 cases
  • Oklahoma v. Castro-Huerta, 21-429
    • United States
    • United States Supreme Court
    • June 29, 2022
    ...243 Conn. 115, 128, and n. 21, 701 A.2d 13, 22, and n. 21 (1997); State v. Larson, 455 N.W.2d 600, 600-601 (S. D. 1990); State v. Flint, 157 Ariz. 227, 228, 756 P.2d 324, 324-325 (App. 1988); State v. Greenwalt, 204 Mont. 196, 204-205, 663 P.2d 1178, 1182-1183 (1983); State v. Warner, 71 N.......
  • State v. Moore, No. 1
    • United States
    • Court of Appeals of Arizona
    • November 17, 1992
    ...has held that federal jurisdiction is exclusive when a non-Indian commits a crime against an Indian in Indian country. State v. Flint, 157 Ariz. 227, 229, 756 P.2d 324, 326 (App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3228, 106 L.Ed.2d 577 The Supreme Court, however, has created a judi......
  • United States v. Peters, 3:16-CR-30150-RAL
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 15, 2017
    ...Donnelly v. United States, 228 U.S. 243, 271-72 (1913); United States v. Ramirez, 537 F.3d 1075, 1082 (9th Cir. 2008); State v. Flint, 157 Ariz. 227, 228-29, 756 P.2d 324, 325-26 (Ct. App. 1988), cert. denied, 492 U.S. 911 (1989); State v. Larson, 455 N.W.2d 600, 601 (S.D. 1990); see genera......
  • State v. Verdugo, No. 1
    • United States
    • Court of Appeals of Arizona
    • January 17, 1995
    ...jurisdiction over the criminal prosecution. See Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990); State v. Flint, 157 Ariz. 227, 756 P.2d 324 (App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3228, 106 L.Ed.2d 577 (1989); see generally 18 U.S.C. §§ 1152, 1153 (The Indian ......
  • Request a trial to view additional results

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