State v. Allan , 100 Idaho 918 ( 1980 )

DONALDSON, Chief Justice.

This is an appeal by Ralph Joseph Allan, a Quinault Indian, from a conviction for bribery which was committed within the boundaries of the Coeur d’Alene Indian Reservation in Kootenai County, Idaho. We reverse Allan’s conviction and in so doing, hold that the state had no jurisdiction to try the defendant for the offense charged.

In April, 1975, the Kootenai County Prosecuting Attorney filed an information against Allan, charging him with the crime of bribery of a county officer (I.C. § 18-1309), a felony. In particular, Allan was accused of offering Kootenai County Deputy Sheriff Lars C. Hanson the sum of $100 for the purpose of securing immunity from arrest for a Connie Ray Lesarte. Allan moved to dismiss the information filed against him on the grounds that the state lacked jurisdiction over him because he is an Indian and the alleged offense occurred on the Coeur d’Alene Indian Reservation. The magistrate denied Allan’s motion to dismiss on the grounds that Allan, being a member of the Quinault Tribe of Indians, was a nontribal Indian while on the Coeur d’Alene Reservation and had no different status than any other “sojourner.”

Allan renewed his motion to dismiss the information in the district court. The motion was denied upon the district court’s determination that the Coeur d’Alene Indians could not “enact laws governing the conduct of persons other than Coeur d’Alene Indians upon the Coeur d’Alene Indian Reservation.” Alternatively, the district court held that Allan was an “emancipated” Indian as a result of leaving the Quinault Reservation and taking up residence on the Coeur d’Alene Reservation. Allan’s subsequent application for writ of review was denied.

Allan was tried by a jury and found guilty of bribery of a county officer. On May 26, 1977 he was sentenced to five years imprisonment, which sentence was commuted to one year. His sentence was then suspended and he was placed on probation. Allan timely filed an appeal challenging the judgment of conviction on the grounds that the district court had no jurisdiction over the alleged offense.

In support of this jurisdictional challenge Allan relies upon the Code of Tribal Offenses (the Code). Allan argues that the Code applies to any person of Indian descent who is a member of any recognized Indian Tribe under federal jurisdiction. Since he meets these requirements, Allan argues that the Code applies to him and that it takes jurisdiction of this matter out of the hands of the state.

The undisputed facts, as stipulated to by the parties, include the following:

1. The defendant, Ralph Joseph Allan, is of Indian descent and substantial Indian blood; is an enrolled member of the Quinault Tribe of Indians, being enrollee No. 12 on the official tribal roll.

2. The Quinault Tribe of Indians is a federally recognized tribe.

3. The defendant inherited a share in his late mother’s allotment, which allotment is being administered by the Bureau of Indian Affairs on defendant’s behalf.

4. The offense of which Allan was convicted occurred adjacent to U.S. Highway 95 in the city of Worley, Idaho, which city is located entirely within and upon the Coeur d’Alene Indian Reservation.

5. At the time the offense occurred, on April 11, 1975, Allan was residing in Worley, Idaho upon the Coeur d’Alene Indian Reservation.

On appeal, we address the issue of whether Allan may be considered an Indian for jurisdictional purposes in light of the fact that he was not living on the Quinault Reservation but was living on the Coeur d’Alene Reservation. We note at the outset that the determination of these issues by other courts has not been an uncomplicated one, nor has it been one always marked by uniformity. See Clinton, “Criminal Jurisdiction over Indian Lands: Journey Through A Jurisdictional Maze,” 18 Ariz.L. Rev. 503 (1976); Goldberg, “Public Law 280: The Limits of State Jurisdiction Over Reservation Indians,” 22 U.C.L.A.L.Rev. 535 (1975).

In this case, we need not consider where jurisdiction over Allan properly lies in the event that the state does not have jurisdiction. We need only concern ourselves with whether the State of Idaho had jurisdiction over Allan. Both the magistrate and district court regarded Allan as a non-Indian for jurisdictional purposes and held that he was subject to state prosecution.

Where the jurisdiction of an accused depends upon his status, his status is a question of fact to be determined by the evidence, and the burden of proof is on the government to sustain the jurisdiction of the court by evidence. 42 C.J.S. Indians § 83 at 803; Lucas v. United States, 163 U.S. 612, 617, 16 S.Ct. 1168, 1170, 41 L.Ed. 282 (1896). Under the facts as stipulated, Allan is recognized racially as an Indian. Thus, if Allan is not recognized jurisdiction-ally as an Indian, some reason must be advanced by the state for this contention.

The magistrate determined that Allan, “as a Quinault Indian no longer residing on that reservation ... is, while on the Coeur d’Alene Indian Reservation, a non-Indian and subject to the jurisdiction of the courts of the State of Idaho. . . .” The record indicates that Allan argued that he was not emancipated, but the magistrate chose to find that statement as not binding upon the court. Apparently, the magistrate found Allan to be emancipated on the basis of his move from the Quinault Reservation to the Coeur d’Alene Reservation. Similarly, the district court concluded that the state had jurisdiction over Allan based on the record “showing herein that defendant is an emancipated Indian. The record shows that defendant has left his tribal reservation and tribal associations and affiliations with the Quinault Tribe and is a resident of and upon the Coeur d’Alene Indian Reservation.”

However, the courts have used no single factor to determine when emancipation has occurred — rather, a totality of the circumstances approach has been adopted. Clinton, supra at 517-18. Emancipation may occur where the Indian has severed his connection with the tribe to which he belonged, or where he has taken on the habits of the white man. People v. Carmen, 43 Cal.2d 342, 273 P.2d 521, 525 (1954); see State v. Attebery, 110 Ariz. 354, 519 P.2d 53 (1974); State v. Campbell, 53 Minn. 354, 55 N.W. 553 (1893). Thus, in order for the state to prove that Allan was “emancipated,” all these factors must be considered.

As appellant argues, however, it is evident from the record that no finding of fact was made with regard to Allan’s emancipation or his status as a sojourner. The district court heard no evidence in the case. It merely reviewed the magistrate’s determination that Allan, “as a Quinault Indian no longer residing on that reservation . is, while on the Coeur d’Alene Indian Reservation, a non-Indian. . . ” The magistrate rejected Allan’s denial of emancipation solely on the basis of his residence. The district court did likewise stating that the record indicated that Allan had severed his tribal affiliations and associations. These conclusions obviously were not based on the totality of the circumstances approach which has long been recognized in resolving the question of emancipation.

The record before us shows that Allan has not severed his relations with the Quinault Tribe. As stipulated by the state, Allan is of Indian descent and substantial Indian blood; he is an enrolled member of the Quinault Tribe of Indians; he has inherited a share of his late mother’s allotment, which is being administered by the Bureau of Indian Affairs. The only indication in the record of Allan’s emancipation is the fact that he resided on a reservation other than the Quinault Reservation. This fact, standing alone, is insufficient to prove emancipation. See Fox v. Bureau of Revenue, 87 N.M. 261, 531 P.2d 1234 (1975); see also, Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442, 444 (1968); State v. Attebery, supra; Clinton, supra at 517-18. The lower court thus erred in concluding that Allan was emancipated. As a non-emancipated Indian, Allan is not subject to state prosecution.

In addition, there is nothing in the record to indicate that the state proved or attempted to prove that Allan was emancipated, other than its stipulation that Allan lived off the Quinault Reservation. While it is possible that the state attempted to make such a showing at trial, we have not been provided with a transcript of the trial as a part of the appellate record. We may not pass upon the validity of such proceedings where they are not made a part of the record. See State v. Tisdel, 94 Idaho 329, 333, 487 P.2d 692, 696 (1971). In the absence of evidence indicating that Allan was emancipated, we hold that the state failed to carry its burden of proof on the issue of jurisdiction. Lucas v. United States, supra. We thus reverse the decision of the district court and remand with instructions to set aside the conviction and dismiss the information for lack of subject matter jurisdiction.

BAKES, McFADDEN and BISTLINE, JJ., and SCOGGIN, J., Pro Tern., concur.