State v. Marek, 16178

• Decision Date: 17 April 1987
• Docket Number: No. 16178,16178
• Citation: 112 Idaho 860,736 P.2d 1314
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Leonard J. MAREK, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1314

736 P.2d 1314

112 Idaho 860

STATE of Idaho, Plaintiff-Respondent, v. Leonard J. MAREK, Defendant-Appellant.

No. 16178.

Supreme Court of Idaho.

April 17, 1987.

Roger Lee Sims, Fitzgerald, Sims & Fisher, Lewiston, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.

Wilfrid W. Longeteig, Craigmont, for amicus curiae (Nez Perce Tribe).

SHEPARD, Chief Justice.

This is an appeal by defendant-appellant Marek who was charged with the crime of Aggravated Battery, I.C. §§ 18-903(c) and 18-907(a), and Felony Injury to Children, I.C. § 18-1501(1). Following trial a jury returned verdicts of guilty on both charges. Thereafter the district court entered a judgment of conviction on the charge of Aggravated Battery and sentenced the defendant to a determinate 15-year term. The record does not reflect whether the district court entered a judgment of conviction for Felony Injury to Children. Marek asserts, and the State concedes, that the trial court erred in entering its judgment of conviction on the charge of Aggravated Assault since the offense took place in Indian Country, the defendant and the victim were both Indians, and the offense of Aggravated Battery is one enumerated under the Major Crimes Act (18 U.S.C. § 1153), and hence jurisdiction to try the defendant for the crime of Aggravated Battery lies exclusively with the federal courts. We agree in part, reverse the conviction for the offense of Aggravated Battery, and remand the cause for further proceedings.

Defendant-appellant Leonard J. Marek, a member of the Nez Perce Tribe, and his wife Leilani Marek, a member of the Thlingit Tribe, lived in a trailer house on the Nez Perce Indian Reservation with their three children, Phillip, age three, and Ellen and Elsie, infant twins age two months. On November 4, 1985, during the course of an argument between defendant and his wife, the defendant picked up the infant Elsie and began striking her. Thereafter he held the infant by her neck and began shaking her, after which time the infant went limp. After the defendant administered artificial respiration the child began to breathe, and began to "twitch." The infant did not improve during the following days, and on November 6, 1985, Leilani Marek took the two other children to the Indian health center and told her sister-in-law, Martha Marek, who worked at the clinic, that the infant Elsie had been injured by the defendant. The defendant's brother, Larry Marek, after a heated discussion with the defendant, took Elsie to the clinic where she was examined by a physician, and then immediately transported to the emergency room at St. Joseph's Hospital in Lewiston.

Upon medical examination, a number of bruises were found on the child, including two bruises on the labia, one over the right eye, and several bruises on her jaws and left ear. Those bruises were determined to be two to four days old. The infant Elsie continued to have seizures. Further examination and laboratory testing determined that the infant's head injuries had caused bruising in the brain tissue, and bleeding into the fluid around the brain. The physician concluded that there had been a permanent loss of mental faculty, impairment of vision in one eye, the existence of many motor function problems, and lack of strength in her legs and neck. The head size of the infant Elsie has not continued at a normal growth.

On November 7, 1985, defendant took his son Phillip and left the Nez Perce Reservation but stopped to visit a friend in Lewiston who testified that the defendant had told her that he had hit the infant Elsie and that she was hurt. Defendant denied making that statement.

A complaint was filed against Marek charging him with Aggravated Battery, I.C. §§ 18-903(c) and 18-907(a), and Felony Injury to Children, I.C. § 18-1501(1). Defendant moved to dismiss the complaint for lack of State jurisdiction, which motion was denied. Thereafter defendant moved to dismiss one count, or in the alternative, that the State be required to elect to proceed on one of the charges, but not both, and it was further contended that I.C. § 18-1501(1) was unconstitutionally vague. Those motions were denied.

Following the preliminary hearing the defendant was bound over for trial, and on the first day of trial the State filed an amended information which amended both charges by inserting the phrase "shaking and" immediately prior to the word "striking." That motion to amend was granted, and although defendant made a motion for continuance, the record does not indicate that the motion for continuance was pursued, nor did the court make any ruling thereon.

The principal issue is whether, as asserted by Marek, the court lacked jurisdiction to try Marek on the offenses charged under the provisions of the Major Crimes Act, 18 U.S.C. § 1153, which Marek asserts vests jurisdiction solely in the federal courts.

The Major Crimes Act was enacted as a Congressional response to the United States Supreme Court decision in Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed.2d 1030 (1883), which had held that neither the federal nor the territorial courts had jurisdiction to try an Indian for the murder of another Indian on a reservation. Under the provisions of the Major Crimes Act, federal courts have exclusive jurisdiction if (1) the offense occurred in "Indian country," (18 U.S.C. § 1151); (2) the defendant and the victim are both Indians, (18 U.S.C. § 1153); (3) the criminal act is an enumerated offense under the Major Crimes Act, (18 U.S.C. § 1153).

"Indian country" is defined in 18 U.S.C. § 1151:

Except as otherwise provided in sections 1154 and 1156 of this title, the term "Indian country," as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Since the acts in question here occurred within the exterior boundaries of the Nez Perce Reservation, the literal language of 18 U.S.C. § 1151 would appear to include the issue of the acts occurring in "Indian country." The State raises no issue, and the record does not indicate that although the acts in question took place within the limits of the reservation, that they nevertheless occurred on lands, the title to which is held by non-Indians. See Clinton, "Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze," 18 Ariz.L.Rev. 503 (1976). See also Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976).

The State does not assert that either the defendant or the victim were not Indians. The Indian Reorganization Act of 1934 (25 U.S.C. § 479), states:

The term "Indian" as used in (citations) of this title shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.

For the purposes of this Act, eskimos and other aboriginal peoples of Alaska shall be considered Indians.

It is stated in Cohen's Handbook of Federal Indian Law (1982 ed.):

The term "Indian" may be used in an ethnological or in a legal sense. If a person is three-fourths Caucasian and one-fourth Indian, that person would ordinarily not be considered an Indian for ethnological purposes. Yet legally such a person may be an Indian. Racial composition is not always dispositive in determining who are Indians for the purposes of Indian law. In dealing with Indians, the federal government is dealing with members or descendants of political entities, that is, Indian tribes, not with persons of a particular race. Tribal membership as determined by the Indian tribe or community itself is often an essential element. In fact, a person of complete Indian ancestry who has never had relations with any Indian tribe may be considered a non-Indian for some legal purposes.

Recognizing the diversity included in the definition of Indian, there is nevertheless some practical value for legal purposes in a definition of Indian as a person meeting two qualifications: (a) that some of the individual's ancestors lived in what is now the United States before its discovery by Europeans, and (b) that the individual is recognized as an Indian by his or her tribe or community.

Congress has often deferred to tribal determinations of membership. On the other hand, in some instances Congress has departed from this standard by imposing additional requirements such as particular blood quantums, or by dispensing with the requirement of tribal membership or relations. It is therefore necessary to determine the specific purpose for which Indian identity is relevant. A conclusion may then be reached in the context of the statute or other provision in question.

See also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978).

Herein the record indicates that the victim is the biological offspring of two enrolled members of Indian tribes, and is herself an enrolled member of the Thlingit Tribe. The defendant is an enrolled member of the Nez Perce Tribe. Hence, it is clear that both defendant and victim are "Indians" not only in the eyes of their tribes, but also in the legal sense of the word.

Marek contends...