State v. Perank, 860243

• Decision Date: 17 July 1992
• Docket Number: No. 860243,860243
• Citation: 858 P.2d 927
• Parties: STATE of Utah, Plaintiff and Appellee, v. Clinton PERANK, Defendant and Appellant.
• Court: Utah Supreme Court

Page 927

858 P.2d 927

STATE of Utah, Plaintiff and Appellee, v. Clinton PERANK, Defendant and Appellant.

No. 860243.

Supreme Court of Utah.

July 17, 1992.

Remittitur Stayed Aug. 4, 1993.

David L. Wilkinson, Earl F. Dorius, Michael M. Quealy, Dallin W. Jensen, Salt Lake City, for State of Utah

Kirk C. Bennett, West Valley, for Perank.

Alvin G. Nash, Vernal, Herbert W. Gillespie, Duchesne, Tom D. Tobin, Alvin Pahlke, Susan W. Pahlke, Winner, South Dakota, for amici Duchesne County and Uintah County.

Stephen G. Boyden, Salt Lake, for amicus Ute Indian Tribe.

SPECIAL NOTE:

The Court grants the motion of the State and orders that the issuance of the remittitur be stayed pending (1) the conclusion of any proceedings on certiorari in the United States Supreme Court in this case or State v. Hagen, 191 Utah Adv.Rep. 26, 858 P.2d 925 (Utah App. July 17, 1992), and (2) the final disposition of the injunction proceeding pending in the United States District Court for the District of Utah, Ute Indian Tribe v. State of Utah, et al., Civil No. C75-408. Until this Court lifts the stay, the decision in State v. Perank, 191 Utah Adv.Rep. 5, --- P.2d ---- (Utah July 17, 1992), shall not be relied on as precedent by any lower court.

STEWART, Justice:

Clinton Perank was convicted in a state court of committing a burglary in Myton, Utah, in violation of Utah Code Ann. § 76-6-202 (1978), and placed on probation. The court thereafter revoked his probation and ordered him committed to the Utah State Prison for a term of 0-5 years. Perank appealed from the revocation of probation, and we stayed execution of the sentence pending appeal. ¹

Perank argues that the state trial court lacked jurisdiction to convict him of burglary and that the Ute Tribal Court had exclusive jurisdiction because he is an Indian and the offense occurred within Indian country. Two issues are presented: (1) whether Perank is an Indian and (2) whether the Uintah-Ouray Indian Reservation was diminished by an act of Congress, leaving Myton, Utah, outside the jurisdictional boundaries of that Reservation.

Even though Perank pleaded guilty to the burglary charge and did not raise the issue of lack of subject matter jurisdiction with respect to the burglary until the probation revocation proceeding, the issue is properly before this Court. A plea of guilty does not waive a claim that the court lacks power to adjudicate a charge against the defendant. Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 2103-04, 40 L.Ed.2d 628 (1974); see also 1 Charles A. Wright, Federal Practice and Procedure § 175, at 623-33 (1982). Also, the issue of subject matter jurisdiction can be raised at any time. See Glasmann v. Second District Court, 80 Utah 1, 7, 12 P.2d 361, 363 (1932).

This Court invited the United States Department of Justice to file an amicus curiae brief in this case because of the importance of the issue of the location of the boundaries of the Uintah-Ouray Indian Reservation (sometimes hereinafter "Uintah Reservation") and because the Department had filed an amicus brief in opposition to the State of Utah's petition for certiorari to the United States Supreme Court from a decision of the United States Court of Appeals for the Tenth Circuit which held that the Uintah Reservation had not been diminished under a series of congressional acts from 1902 to 1905. See Ute Indian Tribe v. Utah, 773 F.2d 1087 (10th Cir.1985) (en banc), cert. denied, 479 U.S. 994, 107 S.Ct. 596, 93 L.Ed.2d 596 (1986). The Department of Justice submitted to this Court a copy of the amicus brief it filed for the United States opposing the State's petition for certiorari in Ute Indian Tribe. In that brief, the Department stated, inter alia, that the issues presented in the petition for a writ of certiorari did not require review by the Supreme Court at that time because they could be addressed in a later case if the Utah Supreme Court were to disagree with the Tenth Circuit. ²

The Ute Indian Tribe, also at our invitation, filed an amicus brief, but addressed only the issue of whether Perank is an Indian within the meaning of 18 U.S.C. § 1152. We note that neither Perank, the Department of Justice, nor the Tribe suggests that the Tenth Circuit's en banc decision in Ute Indian Tribe has res judicata effect in this case. ³

I. PERANK'S INDIAN STATUS

State criminal jurisdiction does not extend to Indians who commit crimes in Indian country. See 18 U.S.C. §§ 1152, 1153 (1982 & Supp.1991). ⁴ Federal statutes, however, do not define the term "Indian" for jurisdictional purposes. Although the State concedes that Perank is an Indian, the Tribe, as amicus, argues that he is not. Ordinarily, an amicus may only present arguments pertaining to issues properly raised by the parties before the court. However, because this issue goes to subject matter jurisdiction, we will address it.

The Tribe argues that Perank is not an Indian under the jurisdictional statute because he was not officially enrolled as a member of the Tribe at the time of the burglary. We disagree and hold that Perank was an Indian at the time of the crime for purposes of 18 U.S.C. §§ 1152, 1153. ⁵

United States v. Rogers, 45 U.S. (4 How.) 567, 572-73, 11 L.Ed. 1105 (1846), set forth two factors to be evaluated in determining who is an Indian. A person is an Indian who (1) has a significant degree of Indian blood and (2) is recognized as an Indian by a tribe or society of Indians or by the federal government. See United States v. Dodge, 538 F.2d 770, 786 (8th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547 (1977); St. Cloud v. United States, 702 F.Supp. 1456, 1460 (D.S.D.1988); State v. LaPier, 242 Mont. 335, 790 P.2d 983, 986 (1990); State v. Attebery, 110 Ariz. 354, 519 P.2d 53, 54 (1974); see also Ex parte Pero, 99 F.2d 28, 30-32 (7th Cir.1938), cert. denied, 306 U.S. 643, 59 S.Ct. 581, 83 L.Ed. 1043 (1939); Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 503, 515-16 (1976). ⁶ We turn to the first factor, whether Perank has a significant degree of Indian blood. As the son of a full-blood Ute father and a mixed-blood mother, Perank has more than one-half Indian blood and at least one-half Ute blood, which is sufficient to satisfy the first requirement under Rogers. Persons with less than one-half Indian blood have been held to have a significant degree of Indian blood. See, e.g., St. Cloud, 702 F.Supp. at 1460-61 (holding 15/32 Yankton Sioux blood sufficient to establish the first Rogers requirement and citing four cases which held less than 1/2 Indian blood to be sufficient); Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442, 444 (1968) (1/4 Indian blood sufficient).

Perank has also been recognized as an Indian by both the Tribe and the federal government. Although Perank was not formally enrolled in the Ute Tribe at the time of his conviction, lack of enrollment does not determine Indian status for purposes of jurisdiction. See Ex parte Pero, 99 F.2d at 31; St. Cloud, 702 F.Supp. at 1461; LaPier, 790 P.2d at 987. Nevertheless, the Tribe formally recognized Perank as an Indian and as a member of the Tribe by his enrollment in the Tribe at a later date. Moreover, under the terms of the Ute Indian Tribe Constitution, it appears that Perank was a member of the Ute Tribe at the time of the offense. Article II, section 1(b) of the Constitution provided that a child born to a member of the Tribe living on the Reservation at the time of the birth is entitled to membership. That provision states:

Section 1. The membership of the Ute Indian Tribe of the Uintah and Ouray Reservation shall consist as follows:

....

(b) All children born to any member of the Ute Indian Tribe of the Uintah and Ouray Reservation who is a resident of the Reservation at the time of the birth of said children.

Ute Indian Tribe of the Uintah and Ouray Reservation Const. art. II, § 1. ⁷ Perank's father was an enrolled member of the Tribe and resided on the Reservation when Perank was born. ⁸ In Chapoose v. Uintah And Ouray Tribal Business Committee, Civ. No. 133-77, slip op. at 16-19 (Ute Tribal App.Ct. Jan. 22, 1981), the Ute Tribal Appellate Court held that Tribe membership was an automatic right for those who qualified under article II, section 1 of the Ute Constitution. Enrollment merely formalized the right.

In addition, according to an affidavit filed by Perank in the trial court, he has lived as an Indian by maintaining social, political, and spiritual relations as an Indian, including participation in Indian rituals. In his brief, he states that he "has lived his life as an Indian, and has been treated as an Indian by governmental entities." Also, in January 1986, Perank was convicted of three offenses in the Ute Tribal Court.

On these facts, we conclude that Perank carried his burden of factually establishing that he has been "recognized racially" as a Ute Indian. Accordingly, we hold that Perank is an Indian for the purpose of determining jurisdiction under 18 U.S.C. §§ 1152 and 1153.

II. THE BOUNDARIES OF THE UINTAH-OURAY RESERVATION

The next issue is whether Myton, Utah, the site of the burglary, lies within Indian country, i.e., within the boundaries of the Uintah-Ouray Reservation. If so, the district court lacked jurisdiction over the crime under 18 U.S.C. § 1152. ⁹ There are two contentions: first, that Myton is not within the Uintah-Ouray Reservation because the Reservation was diminished by a 1902 congressional Act as amended and supplemented by subsequent Indian Appropriation Acts in 1903, 1904, and 1905, and second, that the 1905 Act opened the Reservation without regard to the 1902 Act and that the language of the 1905 Act left the boundaries of the Reservation intact.

Resolution of the diminishment issue turns on two issues. The first is whether the language of the Act of May 27, 1902, which provided that the...