State v. McCormack

• Decision Date: 27 February 1990
• Docket Number: 17898,Nos. 17742,s. 17742
• Parties: STATE of Idaho, Plaintiff-Respondent, v. James McCORMACK, Defendant-Appellant. STATE of Idaho, Plaintiff-Respondent, v. Casey CREE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 682

793 P.2d 682

117 Idaho 1009

STATE of Idaho, Plaintiff-Respondent, v. James McCORMACK, Defendant-Appellant.

STATE of Idaho, Plaintiff-Respondent, v. Casey CREE, Defendant-Appellant.

Nos. 17742, 17898.

Supreme Court of Idaho.

Feb. 27, 1990.

Rehearing Denied June 20, 1990.

Mary L. Pearson, Edmonds, Wash., for appellants.

Jim Jones, Idaho Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen. (argued), Boise, for respondent.

BOYLE, Justice.

James McCormack and Casey Cree, both enrolled members of the Nez Perce Tribe, challenge the jurisdiction of the State of Idaho to require them to submit to breath tests under Idaho's implied consent statute, I.C. § 18-8002. The cases are consolidated on appeal because similar facts and identical legal issues are presented to the Court.

McCormack was driving a motor vehicle on U.S. Highway 95 within the Nez Perce Casey Cree was driving a motor vehicle on Highway 12 within the Nez Perce Indian Reservation in Nez Perce County when he was stopped by a member of the Idaho State Police, arrested and transported to the Lewiston Police Department where he was advised that he must submit to an evidentiary breath test or have his driving privileges suspended for one hundred eighty days. Cree also voluntarily submitted to the evidentiary test. Cree thereafter entered a conditional plea of guilty, and now appeals from the judgment of conviction and the magistrate court's denial of his motion to suppress the results of his test.

[117 Idaho 1010] Indian Reservation in Lewis County when he was stopped by a deputy sheriff, arrested and advised that he must submit to an evidentiary breath alcohol test or, upon refusal to take the test, have his driving privileges suspended for one hundred eighty days. McCormack voluntarily submitted to the evidentiary test. He was charged with driving under the influence of intoxicants, in violation of I.C. § 18-8004. The charge was subsequently reduced to a misdemeanor in violation of I.C. § 18-8005(2) to which McCormack entered a conditional plea of guilty under I.C.R. 11(a)(2), and appeals the magistrate's denial of his motion to suppress the results of the evidentiary test.

The only issues on appeal before this Court are those specific issues which were reserved in the written conditional plea agreements of each defendant. I.C.R. 11(a)(2) clearly requires that any issue desired to be reserved for appeal must be specified in writing. ¹ McCormack specifically reserved a challenge to the use of the breath test as being beyond the jurisdiction granted to the state of Idaho, ² and Cree specifically reserved the right to appeal the district court's decision denying his motion to suppress the breath test because he was an Indian arrested within the boundaries of a reservation. ³ In addition, Cree reserved the issue of the increased suspension period in I.C. § 18-8002. We conclude that both defendants properly reserved their rights to appeal the jurisdictional issues.

In both of these consolidated cases, defendants challenge the jurisdiction of the State of Idaho to require them to submit to a test of their breath under the implied consent statute, I.C. § 18-8002, on the grounds that as Indians, arrested within the boundaries of the Nez Perce Indian Reservation, 1) the state has not obtained the consent of the Nez Perce Tribe for any new assumption of criminal jurisdiction; 2) the penalty has been doubled from ninety to one hundred eighty days without the necessary consent of the Nez Perce Tribe; and/or 3) the statute is civil/regulatory in nature and the state has never assumed or been granted that jurisdiction.

Defendants first contend that I.C. § 18-8002 ⁴ is an increased penalty crime Public Law 280, passed by Congress on August 15, 1953, automatically transferred to five states, and offered all other states, certain limited jurisdiction over Indians within Indian Country. Act of Aug. 15, 1953, ch. 505, § 7, 67 Stat. 590, as amended 25 U.S.C. §§ 1321-1326 (1970), is commonly referred to as Public Law 280. The United States Supreme Court determined that Congress' motivation for enacting Public Law 280 "was centrally to curb lawlessness on the reservations and secondarily to cure the lack of adequate Indian forums for resolving private disputes." Sheppard v. Sheppard, 104 Idaho 1, 13, 655 P.2d 895, 907 (1982), citing Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976).

[117 Idaho 1011] and, as such, is an assumption of a new criminal jurisdiction requiring tribal consent. Defendants assert that the State has not obtained consent from the Nez Perce Tribe for assumption of this new criminal jurisdiction, and consequently I.C. § 18-8002, requiring an evidentiary test, seizure of license and an increased suspension term upon refusal to take the breath test, is not enforceable against tribal members when arrested or cited in Indian Country. Indian Country is defined by Congress as that land within the limits of an Indian reservation. 18 U.S.C. § 1151.

In several prior decisions of this Court we have carefully analyzed the legislative history and policy of Public Law 280 and the various amendments to that statute, as well as the Idaho legislation that has followed since its enactment. Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982); State v. Major, 111 Idaho 410, 725 P.2d 115 (1986); State v. Michael, 111 Idaho 930, 729 P.2d 405 (1986). It is not necessary for purposes of this appeal to restate that legislative process and history in detail, nor is it necessary to restate the entire body of law that has developed in this state as a result of Congress' enactment of Public Law 280 other than to refer to the guiding canons of construction and the basic legal principles involved when dealing with state jurisdiction over Indians. Indian tribal members are generally under the exclusive jurisdiction of the United States Government; however, states may be given specific authority by Congress over certain Indian affairs that affect the various states. United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938); State v. Michael, 111 Idaho 930, 729 P.2d 405 (1986); Boyer v. Shoshone-Bannock Indian Tribes, 92 Idaho 257, 441 P.2d 167 (1968). When addressing issues of state jurisdiction in Indian Country, we are guided by the canon of construction that state and federal legislation passed for the benefit of Indians is to be construed in the Indians' favor. State v. Major, 111 Idaho 410, 725 P.2d 115 (1986); Sheppard The relevant language of Public Law 280 (Section 7) provided:

                [117 Idaho 1012] v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982).  Likewise, statutes and legislation involving Indian rights are to be construed liberally in favor of the Indians, with any ambiguous provisions interpreted to their benefit in order to respect and preserve the vestigial Indian sovereignty.  State v. Major, 111 Idaho at 416, 725 P.2d at 121.   The law is well established that the standard of construction requires this Court to narrowly construe any statutes extending state jurisdiction over Indian Country.  Id. Sheppard v. Sheppard, 104 Idaho at 15, 655 P.2d 895
                

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.

Pursuant to Public Law 280, the Idaho legislature enacted Chapter 51, Jurisdiction in Indian Country, I.C. § 67-5101, wherein the state assumed jurisdiction for civil and criminal enforcement over certain matters, including operation of motor vehicles, arising in Indian Country. Idaho assumed criminal and civil jurisdiction over certain activities in Indian Country within the state under § 7 of Public Law 280 and I.C. § 67-5101, which provides in pertinent part:

67-5101. State jurisdiction for civil and criminal enforcement concerning certain matters arising in Indian country.--The state of Idaho, in accordance with the provisions of 67 Statutes at Large, page 589 (Public Law 280) 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 county located within this state, as Indian county is defined by title 18, United States Code 1151, and obligates and binds this state to the assumption thereof:

A. Compulsory school attendance

B. Juvenile delinquency and youth rehabilitation

C. Dependent, neglected and abused children

D. Insanities and mental illness

E. Public assistance

F. Domestic relations

G. Operations and management of motor vehicles upon highways and roads maintained by the county or state, or political subdivisions thereof. (Emphasis added.)

In 1968, Congress passed the Indian Civil Rights Act, repealing Section 7 of Public Law 280 and thereby changing the method whereby a state could assume jurisdiction over Indians for acts committed in Indian Country. This new statute required states to obtain consent from the Indian tribes prior to assumption of any jurisdiction and provides:

The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over any or all of such offenses committed within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over any such offense committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such...