Yellowbear v. State

• Citation: 174 P.3d 1270,2008 WY 4
• Decision Date: 14 January 2008
• Docket Number: No. 06-246.,06-246.
• Parties: Andrew John YELLOWBEAR, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

174 P.3d 1270

2008 WY 4

Andrew John YELLOWBEAR, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-246.

Supreme Court of Wyoming.

January 14, 2008.

Representing Appellant: Sylvia Lee Hackl of Cheyenne, Wyoming.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Senior Assistant Attorney General. Argument by Mr. Delicath.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[¶ 1] The appellant was convicted of two counts of felony murder, and two counts of being an accessory to felony murder, all based upon the physical abuse and death of his daughter. In this appeal, he questions whether the State of Wyoming had jurisdiction to prosecute him, whether the jury was properly instructed, and whether the prosecutor committed misconduct during rebuttal closing argument. We affirm, but remand for amendment of the Judgment and Sentence.

ISSUES

[¶ 2] 1. Did the crime occur in "Indian country," as that term is defined in 18 U.S.C. § 1151, thereby depriving the State of Wyoming of jurisdiction over the appellant?

2. Did the district court commit reversible error by instructing the jury as to a parent's duty to protect his or her child?

3. Did the prosecutor commit misconduct during rebuttal closing argument by inserting his own credibility and beliefs, by arguing facts not in evidence, and by presenting an argument that was not properly a rebuttal argument?

FACTS

[¶ 3] When she died on July 2, 2004, Marcella¹ Hope Yellowbear was the twenty-two-month-old daughter of the appellant and Macalia Blackburn. Marcella lived with her parents and two siblings in Riverton, Wyoming. On the night Marcella died, the appellant telephoned the emergency room of Riverton Memorial Hospital and reported that Blackburn was bringing their daughter, who was not breathing, to the hospital. Very soon after mother and daughter arrived, hospital staff determined that the infant was deceased.

[¶ 4] Given the nature and extent of Marcella's injuries, the hospital staff suspected child abuse. An autopsy performed the following day revealed almost innumerable abrasions, wounds, burns, and broken bones. The cause of Marcella's death was determined to be "repetitive, abusive, blunt-force injuries." The manner of death was determined to be homicide.

[¶ 5] After a preliminary investigation, including interviews of Blackburn and the appellant, both were arrested and charged with felony murder. The appellant eventually was convicted of two counts of felony murder and two counts of accessory before the fact to felony murder. He was tried on four counts, rather than one, as a result of a series of defense motions and court rulings that will be discussed infra. The State sought the death penalty, but the appellant was sentenced to life in prison without the possibility of parole. Blackburn entered into a plea agreement with the State whereby she pled guilty to an amended count of accessory before the fact to second-degree murder in violation of Wyo. Stat. Ann. §§ 6-1-201(a) and 6-2-104 (LexisNexis 2007), and whereby she agreed to testify in the appellant's case.

DISCUSSION

Did the crime occur in "Indian country," as that term is defined in 18 U.S.C. § 1151, thereby depriving the State of Wyoming of jurisdiction over the appellant?

[¶ 6] The question of subject matter jurisdiction is a question of law that we review de novo. Messer v. State, 2004 WY 98, ¶ 8, 96 P.3d 12, 15 (Wyo.2004). The specific question of whether the scene of the crime in this case was under the jurisdiction of the United States or the jurisdiction of the State of Wyoming is also a question of law to be reviewed de novo. State v. Moss, 471 P.2d 333, 334 (Wyo.1970).

[¶ 7] The Wind River Indian Reservation lies in north-central Wyoming. The Reservation was established by a treaty between the United States and the Shoshone and Bannock Tribes, concluded in 1868 and ratified in 1869. 15 Stat. 673 (July 3, 1868). Today, the Reservation is inhabited by the Eastern Shoshone and Northern Arapaho Tribes. The appellant and Blackburn are both enrolled members of the Northern Arapaho Tribe, as was their daughter Marcella.

[¶ 8] Marcella was killed in Riverton, Wyoming. The City of Riverton lies within the original external boundaries of the Reservation. The question before the Court is whether the place Marcella was killed remains "Indian country," and therefore subject to federal jurisdiction, or whether the Reservation has been "diminished" since the treaty, so as to allow the exercise of Wyoming state court jurisdiction. Resolution of that issue requires a review of the post-treaty history of the Reservation, as well as review of the federal jurisprudence that has developed concerning federal and state jurisdiction in "diminished" reservations. Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 353, 82 S.Ct. 424, 426, 7 L.Ed.2d 346 (1962).

[¶ 9] The question of jurisdiction for the prosecution of criminal offenses on Indian reservations arose in Ex parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), overruled in part on other grounds by State v. Hazlett, 16 N.D. 426, 113 N.W. 374 (N.D. 1907). The United States Supreme Court held that the federal courts did not have jurisdiction to prosecute a murder occurring in Indian country. Id., 109 U.S. at 572, 3 S.Ct. at 407. Congress responded by passing the Indian Major Crimes Act, 18 U.S.C. § 1151 et seq., granting the United States exclusive jurisdiction to prosecute Indians for major crimes in "Indian country." See United States v. Kagama, 118 U.S. 375, 383, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886); Keeble v. United States, 412 U.S. 205, 209, 93 S.Ct. 1993, 1996, 36 L.Ed.2d 844 (1973).

[¶ 10] 18 U.S.C. § 1152 (2000) provides in pertinent part that "[e]xcept 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." In turn, 18 U.S.C. § 1151 (2000) defines the term "Indian country" as it relates to the present controversy as follows:

(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.

[¶ 11] As the people of the United States moved ever-westward across the continent, increasing numbers of native tribes were displaced from their ancestral grounds in the early to mid-nineteenth century and eventually were "settled" on reservations. Population increases and westward movement continued, however, and by the late nineteenth century, the federal government changed its policies toward the tribes and toward reservations. The General Allotment Act of 1887 permitted the federal government to allot tracts of reservation land to individual tribal members and, with tribal consent, to sell the surplus lands to non-Indian settlers. Act of Feb. 8, 1887, ch. 119, 24 Stat. 388 (1887). This policy reflected a broader attitudinal change:

Within a generation or two, it was thought, the tribes would dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of white settlers. See Hearings on H.R. 7902 before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 428 (1934) (statement of D.S. Otis on the history of the allotment policy).

South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 335, 118 S.Ct. 789, 794, 139 L.Ed.2d 773 (1998).

[¶ 12] Developments on the Wind River Indian Reservation followed the national pattern. Article 11 of the 1868 treaty had provided as follows:

No treaty for the cession of any portion of the reservations herein described which may be held in common shall be of any force or validity as against the said Indians, unless executed and signed by at least a majority of all the adult male Indians occupying or interested in the same; and no cession by the tribe shall be understood or construed in such manner as to deprive without his consent, any individual member of the tribe of his right to any tract of land selected by him, as provided in Article 6 of this treaty.

[¶ 13] In 1904, James McLaughlin, United States Indian Inspector for the Reservation, negotiated a new treaty with the Shoshone and Arapaho Tribes. That treaty was ratified, as amended, by the Surplus Land Act of 1905, ch. 1452, 33 Stat. 1016 (1905). Because it is the focus of this controversy, we will set it forth in its entirety as it was ratified:

ARTICLE I. The said Indians belonging on the Shoshone or Wind River Reservation, Wyoming, for the consideration hereinafter named, do hereby cede, grant, and relinquish to the United States, all right, title, and interest which they may have to all the lands embraced within the said reservation, except the lands within and bounded by the following described lines Beginning in the midchannel of the Big Wind River at a point where said stream crosses the western boundary of the said reservation; thence in a southeasterly direction following the midchannel of the Big Wind River to its conjunction with the Little Wind or Big Popo-Agie River, near the northeast corner of township one south, range four east; thence up the midchannel of the said Big Popo-Agie River in a southwesterly direction to the mouth of the North Fork of the said Big Popo-Agie River to its intersection with the southern boundary of the said reservation, near the southwest corner of section twenty-one, township two south, range one west; thence due west along the said southern boundary of the said reservation to the southwest corner of the same; thence north along the western boundary of said...