PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. ROBERT M. LANGFORD, Defendant–Appellant. No. 10-6070

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:09-CR-00327-M-1)

Howard A. Pincus (Raymond P. Moore, Fede ral Public Defender with him on the briefs), Office of the Federal Public Defender, Denv er, Colorado for the De fendant–Appellant. Linda A. Epperley (Sheldon J. Sperling, U.S. Attorney with her on the briefs), Office of the United States Attorney , Muskogee, Oklahoma for the Plaintiff–Appellee.

Before KELLY , HOLLOWAY , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

Robert Langford appeals his conviction fo r being a spectator at a cockfight under 18 U.S.C. §§ 13, 1151, and 1152 , applying Okla. Stat. tit. 21, § 1692.6. We conclude that FILED United States Court of Appeals Tenth Circuit 

### April 11, 2011

Elisabeth A. Shumaker Clerk of Court-2- federal courts do not have authority over vi ctimless crimes committ ed by non-Indians in Indian country. Reviewing the district cour t’s determination under 28 U.S.C. § 1291, we vacate Langford’s conviction a nd remand for the criminal in formation to be dismissed with prejudice.

I On July 22, 2006, approximately sixty law enforcement officers from the Federal Bureau of Investigation, Bureau of I ndian Affairs, Immigration and Customs Enforcement, United States De partment of Agriculture, a nd Oklahoma Highway Patrol raided the T.F.C. cockfightin g facility in rural Oklahoma. The cockfighting facility was located on property he ld in trust by the United States for a Kiowa allottee, and is therefore in Indian country. See 18 U.S.C. § 1151(c). Of the approximately seventy people cited during the raid, between five and seven were Indi an. Everyone else, including Langford, were non-Indian. Langford was charged in federal cour t under the Assimilative Crimes Act, 18 U.S.C. § 13, as applied thro ugh the Indian Country Crimes Act, § 1152 (“ICCA” or “§ 1152”). The state offense a ssimilated into federal law criminalizes being a spectator at a place where a cockfight is occurring. Okla. Stat. tit. 21, § 1692.6. No allegation regarding Langford’s Indian status was made in the information, nor was there any proof at trial that Langford wa s Indian. The only testimony on the matter at trial indicated Langford is non-Indian. Following a trial before a magistrate judge, a jury convicted Langford, and his-3- conviction was affirmed by the dist rict court. He timely appealed.

II “[T]he Indian/non-Indian statuses of th e victim and the defendant are essential elements” of any crime char ged under 18 U.S.C. § 1152. United States v. Prentiss , 256 F.3d 971, 980 (10th Cir. 2001) (en banc) overru led in part on other gr ounds as recognized by United States v. Sinks , 473 F.3d 1315, 1321 (10th Ci r. 2007). The failure of an indictment to allege this essential element, when raised for the first time on appeal, is reviewed for plain error. Sinks , 473 F.3d at 1321. To show plain error, a defendant must demonstrate: “(1) an error, (2) that is plai n, (3) that affects substantial rights, and (4) seriously affects the fairness, integrity, or pub lic reputation of judici al proceedings.” Id. (quotation and alteration omitted). In this case, the distinction between plai n error review and de novo review is academic because the government did not merely fail to allege Langford’s Indian status

as an element of the crime. Rather, it failed to produce any evidence wh atsoever of Langford’s Indian status. As in cases ch allenging the sufficienc y of the evidence, a

conviction in the absence of an y allegation or any evidence of an essential element, is plainly an error, clearly prejudic ed the defendant, and almost always creates manifest injustice. Therefor e, plain error review and de novo review are functionally equivalent so lo ng as the fourth prong of plain error review—that the error seriously affect s the fairness, integrity, or public reputation of judicial pr oceedings—is also met.

United States v. Kaufman , 546 F.3d 1242, 1247 (10th Cir. 2008).-4- III

A

The Assimilative Crimes Act provides that: Whoever within or upon any of th e places now existing or hereafter reserved or acquired as provided in se ction 7 of this title, [which defines the territorial jurisdiction of the United States,] or on, above, or below any portion of the territorial sea of the Un ited States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Po ssession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offe nse and subject to a like punishment. 18 U.S. C. § 13(a). The ICCA provides in relevant part that “[e]xcept as otherwise expressly provided by law, the ge neral laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive juri sdiction of the United States, except the District of Columbia, sha ll extend to the Indian country.” 18 U.S.C. § 1152. Thus, in conjunction, these statutes: (1 ) assimilate state criminal law into federal law with respect to acts committ ed in territories of federa l jurisdiction; and (2) apply

these assimilated state crimes to acts committed in Indian country.

The assimilated state crime in this case is being “knowingly present as a spectator at any place, building, or other site where preparations are being made for a cockfight with the intent to be present at such pr eparation or cockfight, or [being] knowingly present at such cockfight.” Okla. Stat. tit. 21, § 1692.6.-5- B There is no dispute that the conduct at issue in this case, wa tching a cockfight, occurred in Indian country. Nor is there a ny dispute that Langford is a non-Indian. The only issue is whether there is federal jurisdiction 1 for a victimless crime, perpetrated by a non-Indian in Indian country. This is a question of first impression, but the answer is clear. There is no jurisdiction. The states possess exclusive crimin al jurisdiction over crimes occurring in Indian c ountry if there is neither an Indian victim, nor an Indian perpetrator. Our conclusion flows ineluctably from Supreme Court precedent. Despite the plain language of 18 U.S.C. § 1152 an d its predecessor statutes, the Court has consistently and clearly held that federal ju risdiction over crimes in Indian country is contingent upon the existence of either an In dian victim or perpetrator. This rule was first articulated in United States v. McBratney , 104 U.S. 621 (1881). In McBratney , the Supreme Court considered whether federal c ourts had jurisdiction to punish a homicide of one white man by another on the Ute reservation in Colorado. Id. at 621. Notwithstanding the seemingly c ontrary plain language of tw o statutes which appears to compel the opposite re sult, the Court held that Colora do possessed exclusive jurisdiction

over the crime. Id. at 623-24. The first statute gran ted federal jurisdiction over murder

1 When we speak of jurisd iction, we mean sovereign authority, not subject matter jurisdiction. Cf. Prentiss , 206 F. 3d at 982 (disclaiming th e application of subject matter jurisdiction analysis to cases involving an inquiry under the ICCA). This is consistent with use of the term in United States v. McBratney , 104 U.S. 621, 623-4 (1881).-6- committed within the excl usive jurisdiction of the United States. Id. at 621. The second statute, 18 U.S.C. § 2145, a predecessor to th e ICCA, provided that “general laws of the United States as to the punish ment of crimes committed in an y place within the sole and exclusive jurisdiction of the United States, ex cept the District of Columbia, shall extend to Indian country.” McBratney , 104 U.S. at 621-622. In order to get past these statutes, th e Court created an exception premised upon the sovereign equality of the in dividual states. It reasoned th at Colorado entered into the United States “upon an equal foo ting with the original States in all respects whatsoever . . . [and consequently] has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits.” Id. at 624. Absent a specific treaty provision between the Utes and the United States stipulating for “the punishment of offences comm itted by white men against white men” the federal courts lacked jurisdiction to p unish such crimes within the reservation. Id. The Supreme Court has consistently rea ffirmed the “equal footing” holding of McBratney . It first did so in United States v. Draper , 164 U.S. 240, 242 (1896). Montana’s enabling act stated that “Indian lands shall remain un der the absolute and exclusive jurisdiction and control of the [C]ongress of the United States.” Id. at 244. Despite this language, the Court held that Montana had exclusive jurisdiction over the murder of a non-Indian by a non-Indian on the Crow reservation. Id. at 247. In People v. Martin , 326 U.S. 496 (1946), a non-Indi an challenged his New York

conviction for the murder of another non-Indi an within the Alleghe ny Reservation on the-7- grounds that the federal courts had exclus ive jurisdiction over his crime. Martin’s argument generally mirrored Draper’s, but he al so argued that the presence of an “equal footing” provision in Colora do’s enabling statute distingui shed his case from McBratney , because New York was one of the original states. The C ourt rejected this argument because “[t]he fact that Colo rado was put on an equal footin g with the original states obviously did not give it any greate r power than New York.” Martin , 326 U.S. at 499. It further reasoned that “[w]hile Section 2145 of the Revised Statutes has been held applicable in territories to crimes between whites and whites which do not affect Indians, the McBratney line of decisions stands for the pro position that States, by virtue of their statehood, have jurisdiction over such cr imes notwithstanding Section 2145.” Martin , 326 U.S. at 500. Of particular relevance, in United States v. Ramsey , 271 U.S. 467, 469 (1926), the Court observed that with resp ect to Oklahoma “[t]he author ity of the United States under [S]ection 2145 to punish crim es occurred within the state of Oklahoma, not committed by or against Indians, was ended by the grant of statehood.” 2 The McBratney line of cases restricts not only the scope of federal jurisdiction under § 2145, but also un der the statute at issue in this ca se. This court has noted that the jurisdictional provisions of § 2145 and its successor statute, the ICCA, are “nearly

2 “We are bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings.” United States v. Serawpo , 505 F.3d 1112, 1122 (10th Cir. 2007) (quotation omitted).-8- identical.” Prentiss , 256 F.3d at 975 n.3. Citing McBratney and Martin , the Supreme Court has observed that with respect to “Indian country crimes involving only nonIndians, longstanding precedents of this Court hold that state courts have exclusive jurisdiction despite the terms of § 1152.” Duro v. Reina , 495 U.S. 676, 680 n.1 (1990), superseded in other respects by statute , 25 U.S.C. § 1301; see also , United States v. Antelope , 430 U.S. 641, 643 n.2 (1977 ) (observing, with respect to the ICCA, “[n]ot all crimes committed within Indian country are subj ect to federal or tribal jurisdiction . . . [u]nder [McBratney ], a non-Indian charged with co mmitting crimes against other nonIndians in Indian country is subject to prosecution under state law”). The Supreme Court has not directly cons idered the issue of whether the federal courts possess jurisdiction over victimless crimes committed by n on-Indians on Indian land. However, the Court has suggest ed in dicta that the McBratney rule applies to

victimless crimes as well. The Court su mmarized the delimitation of state and federal jurisdiction over crimes in Indian country in Solem v. Bartlett , 465 U.S. 463 (1984). “Within Indian country, State jurisdiction is limited to crimes by non-Indians against non-Indians, and victimless crimes by non-Indians.” Id. at 465 n.2 (citing Martin , 326 U.S. 496); see Ross v. Neff , 905 F.2d 1349, 1353 (10th Cir. 1990) (noting the “Supreme Court has expressly stated that state criminal jurisdiction in Indian country is limited to crimes committed ‘by non-Indian s against non-Indians . . . and victimless crimes by nonIndians’”) (quoting Solem , 465 U.S. at 465 n.2). The absence of federal jurisdiction over-9- victimless crimes perpet rated by a non-Indian in Indian country is explicit in the dicta of

Solem and implicit in the holding of McBratney

. 3

C Although the McBratney line of cases establishes that the states, not the federal government, possess exclusive jurisdiction over non-Indian perpetrato rs of victimless crimes, the Oklahoma Co nstitution appears to disclaim any state jurisdiction over crimes committed in Indian country. Article I, S ection 3 of the Oklahom a Constitution provides: The people inhabiting the State do ag ree and declare that they forever disclaim all right and title in or to any unappropriated pu blic lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall ha ve been extinguished by the United States, the same shall be and remain subject to th e jurisdiction, disposal, and control of the United States. Notwithstanding the plain text, the Oklahoma courts have construe d this provision “to disclaim jurisdiction over Indian lands only to the extent that the federal government claimed jurisdiction.” Goforth v. State , 644 P.2d. 114, 116 (Okla. Crim. App. 1982) (citing Currey v. Corp. Comm’n , 617 P.2d 177 (Okla. 1979)). As the Oklahoma Court of Criminal Appeals ob served in Goforth , to construe this provision otherwise would result in a jurisdictional vacuum in which neither the federal government (due to McBratney )

3 The government should have been aware from its own internal guidelines that there was no federal jurisdiction over this offense. See U.S. Dep’t of Justice, United States Attorneys’ Manual, tit. 9-20.100, Crim inal Resource Manual § 683 (1997) (noting that as a general rule states, not the federal government, have jurisdiction over victimless crimes committed by non-Indian s in Indian country).-10- nor Oklahoma could punish crimes committed by non-Indians against non-Indians in Indian country. 4 Consequently, the Oklahoma cour ts have asserted jurisdiction over crimes by non-Indians in Indian country. See Goforth , 644 P.2d at 117.

IV Consequently, the government ’s failure to allege or pr esent evidence with respect to Langford’s Indian/n on-Indian status constitutes plain error. See Kaufman , 546 F.3d at 1263 (a conviction in the abse nce of evidence to prove an essentia l element is plain error). Although the government contends that Langford’s status as a non-Indian is a “technicality,” the foregoi ng discussion demonstrates it is in fact an essential element of a

crime under the ICCA. Unlike in United States v. Goode , 483 F.3d 676, 682 (10th Cir. 2007), the alleged evidentiary insufficiency “could [not] have been quickly cured” at trial. As the government concedes in its brief, Langford is a non-Indian. The government presented no evidence that he is an Indian, nor a ny evidence that he victimized any Indian. Thus , this error affects the “fai rness, integrity, or public reputation of judicial proceedings.” Kaufman , 546 F.3d at 1263. We conclude by emphasizi ng that our holding does not create a “safe haven” for “fanatic cockfighters” as the government contends. The State of Oklahoma has

4 Nor, under Oliphant v. Suquamish Indian Tribe , 435 U.S. 191 (1990), would the tribe have authority to prosecute non-Indian criminals committing crimes on tribal lands.-11- jurisdiction to prosecute victimless crimes, such as cockfighting, committed in Indian country by a non-Indian.

V Because the United States lacks juri sdiction over Langford’s conduct, we

VACATE his conviction and REMAND to the district court so that the information may be dismissed with prejudice. Appellant ’s motion to supplement the record is DENIED

.