Th e HONORABLE DAVID S. DOTY, United States District Judge for th e 1 District of Minnesota.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1831

___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the William Andrew Clark, * District of Minnesota. * Appellant. * [UNPUBLISHED]

___________ Submitted: September 8, 1998 Filed: September 11, 1998

___________ Before FAGG, BEAM, and LOKEN, Circuit Judges.

___________ PER CURIAM.
In this direct criminal appeal, William Andrew Clark challenges federa l jurisdiction over the offense to which he pleaded guilty. Clark, an Indian, pleadin g guilty to one count of aggravated sexual abuse by force or threat in violation of 1 8 U.S.C. § 2241(a)(1), admitted using force t o engage in sexual intercourse with another Indian at his home on the Red Lake Reservation in Minnesota. The district court 1 sentenced him to 109 months imprisonment and five years supervised release.-2-

Jurisdict ion was premised on 18 U.S.C. § 1153(a), which provides that “[a]ny Indian who commits against the person or property of another Indian or other person” certain offe nses--including aggravated sexual abuse--“within the Indian country, shall b e subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”

On appeal Clark argues only that the district court lacked jurisdiction because the site of the offense is not a “reservation” and, therefore, is not “Indian country ” wi thin the meaning of 18 U.S.C. § 1151 (defining Indian country with reference t o Indian reservations, dependent Indian commu nities, and Indian allotments). He argues that the United States never obtained jurisdiction over this land, because the Indian s “have alway s been recognized and regarded as the sole owners by right of origina l Indian occupancy, the lands having never been ceded to the United States.” Chippewa Indians of Minnesota v. United States , 301 U.S. 358, 366 (1937).

After de no vo review of the record and the parties & briefs, we conclude Clar k
com mitted

the offense in Indian country. See United States v. Thunder Hawk , 12 7 F.3d 705 , 706 (8th Cir. 1997) (standard of review). Although the Red Lak e Reservation, as it exists today, has never been ceded to the United States and is th e remai nder of the aboriginal territory of the Red Lake Band of Chippewa Indians, it is Indian country. See United States v. White , 508 F.2d 453, 456-59 & nn.3-5 (8th Cir. 1974) (e ven without formal act or cession, effect of “reserved” land was creation o f Red Lake Reservation); cf. Minnesota v. Hitchcock , 185 U.S. 373, 388-90 (1902 ) (adv ising that, if it were necessary to decide, Red Lake would be reservation; United States held fee of Red Lake land subject only to Indian-held right of occupancy) ; United States v. Az ure , 801 F.2d 336, 338-39 (8th Cir. 1986) (finding other land held by United States in trust for Indians was Indian country fo r purposes of § 1151; actions of fe deral government in its treatment of Indian land can create de facto reservatio n even where reservation was not creat ed by specific treaty, statute, or executive order).-3-

Therefore , the district court had jurisdiction to convict and sentence Clark for thi s offense committed “within the Indian country.”
Accordingly, we affirm.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.