U.S. v. Broncheau

• Decision Date: 30 May 1979
• Docket Number: No. 78-2585,78-2585
• Citation: 597 F.2d 1260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Dale BRONCHEAU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1260

597 F.2d 1260

UNITED STATES of America, Plaintiff-Appellee, v. Walter Dale BRONCHEAU, Defendant-Appellant.

No. 78-2585.

United States Court of Appeals,

Ninth Circuit.

May 30, 1979.

John W. Walker (argued), Moscow, Idaho, for defendant-appellant.

Mary S. Hobson, Asst. U. S. Atty. (argued), Boise, Idaho, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before SNEED and ANDERSON, Circuit Judges, and WILLIAMS, ^* district judge.

J. BLAINE ANDERSON, Circuit Judge:

Appellant Broncheau, an Indian, was indicted for assault resulting in serious bodily injury of a non-Indian within Indian country, in violation of 18 U.S.C. §§ 1153 and 113(f).

Broncheau moved to dismiss the indictment, alleging that: (1) the district court lacked jurisdiction because the tribal courts have exclusive jurisdiction to punish Indians for crimes committed on Indian land; and (2) § 1153 is unconstitutional because the disparity in treatment of Indians and non-Indians for the same offense denied Broncheau's right to due process and equal protection. At the hearing on the motion to dismiss, Broncheau additionally alleged that the indictment was jurisdictionally defective because it did not allege that Broncheau was an enrolled Indian. He further argued that if enrollment did not have to be pleaded, § 1153 was void for vagueness.

Upon the district court's denial of the motion to dismiss and pursuant to a plea bargaining agreement, Broncheau entered a plea of guilty to the lesser included misdemeanor offense of simple assault, in violation of 18 U.S.C. §§ 1153 and 113(e). In entering his plea of guilty, Broncheau admitted that he was an enrolled Nez Perce Indian and had struck and assaulted Michael Cram, a non-Indian, within the boundaries of the Nez Perce Indian Reservation. The district court accepted Broncheau's guilty plea and subsequently fined him $150.00. Broncheau now challenges as erroneous the district court's denial of his motion to dismiss. We reject Broncheau's arguments as not meritorious and affirm.

I. Sufficiency of the Indictment

Broncheau contends that federal jurisdiction pursuant to 18 U.S.C. § 1153 was lacking because the indictment did not allege that he was an "enrolled" Indian. ¹

Section 1153 provides in pertinent part:

"Any Indian who commits against the person or property of another Indian or other person (an) assault resulting in serious bodily injury . . . within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States."

The indictment incorporated the language of § 1153 in setting out the necessary elements to be proved by the Government: Broncheau was an Indian who had stabbed a non-Indian within the boundaries of the Nez Perce Indian Reservation. Unless § 1153 is void for vagueness, See part II Infra, the indictment is sufficient because it closely follows the language of the statute. See United States v. Anderson, 532 F.2d 1218, 1222 (9th Cir. 1976), Cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976).

Moreover, although an allegation of enrollment may be sufficient for purposes of alleging federal jurisdiction, See e g., United States v. Heath, 509 F.2d 16, 20 (9th Cir. 1974), enrollment has not yet been held to be an absolute requirement of federal jurisdiction. See United States v. Antelope, 430 U.S. 641, 646 n. 7, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977). Nor should it be. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative. See United States v. Indian Boy X, 565 F.2d 585, 594 (9th Cir. 1977), Cert. denied, --- U.S. ----, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978); United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974), Vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975); Ex parte Pero, 99 F.2d 28, 30 (7th Cir. 1938); F. Cohen, Handbook of Federal Indian Law 2-5 (1942).

An indictment must state the essential facts to apprise the defendant of the charges against him so that the defendant may prepare a defense, but the indictment may be construed to include facts necessarily implied by the allegations. United States v. Anderson, 532 F.2d at 1222; United States v. Heath, 509 F.2d at 20. The purpose of an indictment was served here. Broncheau had adequate notice of his classification as an Indian. The allegation encompassed by implication those facts material to proving that an individual is an Indian, e. g., enrollment, blood quantum, residence.

Alleging that Broncheau was an Indian was sufficient for purposes of federal jurisdiction under § 1153. Further refinement was not required.

II. Vagueness of Section 1153

Broncheau argues that § 1153 is impermissibly vague because it does not define the term "Indian" and thereby permits arbitrary prosecutorial discretion in the prosecution of individuals for § 1153 crimes.

" It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975) (citation omitted); Accord, United States v. Louderman, 576 F.2d 1383, 1388 (9th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 257, 58 L.Ed.2d 243 (1978); United States v. Ocegueda, 564 F.2d 1363, 1365 (9th Cir. 1975). Thus, the test is not whether the statute is vague in the abstract but whether it is vague as applied in the particular circumstances of the case. Id. Moreover, if judicial explication makes a statute clear so that fair notice is afforded, vagueness may not be imputed. United States v. Fithian, 452 F.2d 505, 506 n. 1 (9th Cir. 1971).

Unlike the term "Indian country," which has been defined in 18 U.S.C. § 1151, the term "Indian" has not been statutorily defined but instead has been judicially explicated over the years. The test, first suggested in United States v. Rogers, 45 U.S. 567, 11 L.Ed. 1105 (1845), and generally followed by the courts, considers (1) the degree of Indian blood; and (2) tribal or governmental recognition as an Indian. United States v. Dodge,538 F.2d 770, 786 (8th Cir. 1976), Cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 547 (1977) (enrollment and one-fourth Indian blood); F. Cohen, Handbook of Federal Indian Law 3 (1942); See United States v. Indian Boy X,565 F.2d at 594 (enrollment and residence); United States v. Lossiah, 537 F.2d 1250, 1251 (4th Cir. 1976) (enrollment and three-fourths Indian blood); Azure v. United States, 248 F.2d 335, 337 (8th Cir. 1957) (enrollment).

We therefore believe that the term "Indian," as judicially developed from 1845 to the present, "has a meaning sufficiently precise for a man of average intelligence to 'reasonably understand that his contemplated conduct is proscribed.' " United States v. Mazurie, 419 U.S. at 553, 95 S.Ct. at 715-716. Moreover, we note that Broncheau admitted that he was an enrolled Indian at the time his guilty plea was entered and has never suggested that he did not understand the term "Indian" as it applied to him. In addition, the record shows that the district judge, who had lived in the community and was acquainted with the Broncheau family, identified Broncheau as an Indian. As in United States v. Mazurie, the distinction between Indians and non-Indians was commonly understood and readily made by all concerned. Id. at 553 n. 10, 95 S.Ct. 710.

Contrary to Broncheau's assertion, merely because the term "Indian" has been judicially defined on a case-to-case basis does not render § 1153 impermissibly vague as applied to him. The standard for determining who is an Indian has been adequately established by judicial decision. The prosecution of Broncheau was neither arbitrary nor irrational under the circumstances.

III. Federal Jurisdiction of Section 1153 Crimes

Broncheau asserts that tribal courts have exclusive jurisdiction over crimes committed by Indians within Indian country. To hold otherwise, Broncheau argues, would be contrary to the purpose of the Indian Crimes Act of 1976. (Pub.L. 94-297, 90 Stat. 585, 94th Cong. S. 2129, amending § 1153.)

The sovereignty of Indian tribes "exists only at the sufferance of Congress and is subject to complete defeasance." United States v. Wheeler,435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978). As sovereign entities, however, Indian tribes generally retain their inherent sovereign powers until divested of them by treaty or statute. Id.; Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir. 1975). Included in those inherent powers is the power to enact and enforce penal laws against tribal members. Thus, in Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), the Supreme Court concluded that an Indian tribe retained exclusive jurisdiction to punish an Indian for the murder of another Indian in the absence of any congressional direction to the contrary. In response to that decision, Congress enacted the Major Crimes Act, 18 U.S.C. § 1153, to confer jurisdiction on the federal courts to punish certain offenses committed by Indians in Indian country because "tribal remedies were either nonexistent or incompatible with principles that Congress thought should be controlling." Keeble v. United States, 412 U.S. 205, 210, 93 S.Ct. 1993, 1996, 36 L.Ed.2d 844 (1973).

As Felix Cohen noted, "(a)lthough (the Major Crimes Act) does not expressly terminate tribal jurisdiction over the enumerated crimes, and may be interpreted as conferring only a concurrent jurisdiction upon the federal courts, it is arguable that the statute removes all jurisdiction over the enumerated crimes from the Indian authorities." F. Cohen, Handbook of Federal Indian Law 147 (1942). Unlike the General Crimes Act, 18 U.S.C. § 1152 ², where Congress continued to recognize the power of...