No. 91-635 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, EX REL., 

A. LENDLIEF 

AND DONALD C. JUNEAU, 

Relators, 

-vs- I 

MONTANA NINTH JUDICIAL DISTRICT COURT, 

GLACIER COUNTY, THE HONORABLE ROBERT S. 

KELLER, Presiding Judge, 

Respondent. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relators: 

Joseph R. Hunt argued, Johnson & Hu t, (Juneau) 

Shelby, Montana 

Charles F. Moses, Moses Law Firm, (Lin 

Billings, Montana 

Marcus S. Topel, David R. Callaway argued, Topel & 

Goodman, (Poll) San Francisco, California 

For Respondent: 

Hon. Marc Racicot, Attorney General, 

Deanne L. Sandholm argued, Assistant Attorney 

General, Helena, Mon 

James C. Nelson, Glacier County Attorney, Cut Bank, 

Montana 

Filed: 

Submitted: September 24, 1992 

Decided: April 13, 1993 

Clerk 
Justice Fre er delivered the Q e Court. 

This case arose from a criminal proceeding in Glacier County. 

58 counts f misdemeanor conspiracy in 

s st the Montana Restaurant and C 

an Reservation i 

moved to dismiss for lack of jurisdiction. The District Court fs 

the Ninth Judicial District, Glacier County, denied the motion, 

This Court accepted supervisory control in order to de 

jurisdictional issue before trial. We affirm. 

The issues before us are: 

1. For purposes of criminal jurisdiction, is a person an 

"Indianw if he has no Indian ancestry but has been adopted by an 

Indian family and raised on the reservation? 

9 4 Does the State of Plsntana have jurisdiction over nonIndian defendants for crimes committed on the reservation where 

there is no I 

3. Does the State of ]Montana have authority to regulate 

gambling on the reservation? 

Carl Kipp, Bob Juneau and defendant, Don Juneau operated the 

Montana Restaurant and Casino on the Blackfeet Reservation in 

Glacier County, Montana. The Blackfeet tribal business pe 

in Carl KippDs name. It was stipulated that Carl Kipp and Bob 

Juneau are Indians. Don Juneau's Indian status is at issue, 

On November 1988, the Glacier 

information charging Stanford R. Poll (Poll), Arthur A. Lindlie 

(Lindlief) and Don Juneau with 58 coants sf misdemeanor conspiracy 

2 
in violation of 5 45 -102 (1) , MCA, involving agreements to conduct 

(Casino) in ~rowning, Montana. All offenses are alleged to have 

occurred between Hay 1, 1987, and June li 1988; The information 

Tribe; (b) the sovereignty of the Blackfeet Tribe; (c) the 

preemption by the federal government under Article VI of the United 

ates Constitution and con rolling juris iction over all Indian 

affairs; and (d) the preemption by the Blackfeet Nation of 

jurisdiction over business activities within the exterior 

boundaries of the laekfeet Reservation. 

The State opposed the motion arguing that all three defendants 

---- Poll, Lindlief and Don Juneau, were non-Indian; that the Casino 

not the Tr 

ribe had no sive scheme of 

authorizing, or regulating the 181 ackfe 

Indian Reservation, whether by Indians or non-Indians. 

Lindlief and Poll challenged the State" assertion concerning 

Don Juneau" nno-Indian status and further contended that their 

criminal liability was predicated solely on the eonduet of 

individuals who were Indians not subject to state jurisdiction and 

that the Casino was being operated pursuant to a tribal business 

he motion to dismiss, however, 

urging this Court to accept an application for an approp 

3 
in order to d e jurisdictional question in ad 

rial., for a writ of 

supervisory control with this Court. This Court denied the 

petitisn on the grounds there w3s not an adequate factual record 

Id exercise supervis 

eurt held an evi or; May 19, 

1990. Su n submitte 

briefs arguing the jurisdiction of t t, The District 

Court again denied the defendants' motion to dismiss. 

On December 31, 1991, Poll, Eindlief and Don Juneau again 

petitioned this Court to issue a writ of supervisory co 

March 10, 1992, this Court accepted jurisdiction of the application 

for writ of supervisory control to determine the jurisdictional 

issue before trial. Additional bri fing was ordered and the case 

was orally argued before this Court on September 2, 1992. 

1 

For purposes of criminal jurisdiction, is a person an vsJhdiants 

if he has no Indian ancestry but has opted by an In 

family and raised on the reservation? 

It was stipulated by the parties that Lindlief and Poll are 

not Indians. Therefore, this issue centers on defendant Don 

Juneau- Don Juneau was born of non-Indian parents but later 

ted by an Indian, Bewtsn Juneau. Don Juneau was raised on the 

Blackfeet Reservation and has lived and worked there all his life. 

Don Juneau testified that he is not enrolled as a member of any 

federally recognized Indian tribe; he does not vote in Indian 

elections; he does not receive any per capita ederal benefits as 

an Indian; and, he has never hei a Tribal office. He is married 

4 
ts a full- f the Rocky Boy Tribe and has children 

that are half Indian. 

Defendants maintain that Don Juneau is an "Indianse for 

purposes sf criminal juris ey maintain that Congress has 

ianm as it is use in criminal jurisdiction 

that since Juneau was adslfpte 

0-8-125(1), MCA, provides: 

After the final decree of adoption is entered, the 

relation of parent and child and all the rights, duties, 

and other legal consequences sf the natural relation of 

child and parent shall thereafter exist between such 

adopted child and the adoptive parents adopting such 

child and the kindred of the adoptive parents. 

Under this statute, the adopted child joins the adoptive family as 

if born to them. Don Juneau's father is 518 Indian. Thus, Don 

Juneau maintains that under the above statute, he is 5/16 Indian 

and therefore, is an "Indianw under federal and state law. 

Defendants maintain that for purposes of criminal 

jurisdiction, "Indianm is a status, not a racial classification. 

United States v. Indian Boy X (9th Cir. 1977), 565 F,2d 585 (The 

Ninth Circuit based federal jurisdiction on residence and 

enrollment without mention of the percentage of Indian blood); St. 

Cloud v. United States (D.S.D. 1988), 702 F.Supp. 1456 (The court 

noted that Indian blood alone was no suf f icien 

criminal jurisdiction ecause j urisdistion over Indians on 

reservations was based on status, not race). 

efendants contend that although on Juneau is no 

lood, every is life 

is Indian; he was adopted by an Indian; attended Indian schools; 
practiced the In ated in tribal customs; 

dian friends; and, has In 

Thus, defendants urge that Don Juneau is an Indian and meets the 

status =f Indian fcr crfminaf dtiri sd i ~+i nn nl~rnn~e~ J -A .L-------** r--r -- -- - 

ains that criminal ju 

court over Don ependent upon 

s status as a non-Indian, citin 

Mont. 335, 790 ?.2d 983, where this Cour 

test of United States v. Rogers (l845), 4 How. 567, 16 U,S. 200, 

for determining whether a person has Indian status: (1) the 

defendant must have a significant amount of Indian blood; and (2) 

the defendant must have federal or tribal recognition as an Indian. 

Don Juneau is unable to meet either prong of the test. The State 

Don Juneau fails the first part of the test because he 

has no Indian blood. He fails the second part of the test because 

he is not an enrolled member of the tribe and he receives no 

federal benefits as an Indian. 

The LaPier cas is controlling, U der the secon 

LaPier test, Don Juneau was required to show that he had fede 

tribal recognition as an Indian. He has failed to submit any proof 

to demonstrate the Blackfeet Tribe has recognized him as an Indian. 

As previously pointed out, he is not an enrolled member of any 

Indian tribe and he receives no enefits as an India 

therefore conclude that Don Juneau has failed to prove that he has 

received federal or tribal recognition as an Indian. We conclude 

at Don Juneau has failed to meet the test of EaPier. 

We do not find it necessary to discuss the issue from LaPier 

of the necessity of a significant amount sf Indian blood. As 

6 
efendants conten that such a 

longer appro ecause "Indian" is a status, an 

classification to e determine antity of Indian blood. 

n Juneau has fai est , 

no further discussio 

We hold that Don Juneau is not an Indian for 

criminal jurisdiction, 

Does the State of Montana have jurisdiction over non-India 

defendants for crimes committed on the reservation where there is 

dian victim? 

Defendants maintain that when making a determination as to 

whether a state has jurisdiction over particular victimless crimes 

committed by non-Indians within the reservation, it is necessaryto 

examine the federal, tribal and state interests involved ts 

determine if the particular state has been preempted. 

The respondents contend that the assertion of state authority 

interests when a non-Indian commits an offense against a nonIndian. Duro v. Reina (lggO), 495 U.S. 676, 110 S.Ct. 2053, 109 

L.Ed.2d 693; State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983; 

efendants in this case a e charged with conspiracy, and that 

e ~bject of each conspiracy charged in this case is a violation 

ieular gambling la 

islation of t Montana are also 

crimes because they are committed without injury to persons or the 
rogerty of ersons, and t 

in this case where victimless crimes 

s a 

ave criminal jurisdictio 

Indians, I 

established that the inherent sovereignty of tne 

rfbes does not extend to criminal jurisdiction 

Wheeler reaffirmedthe longstandin 

jurisdiction over crimes csmitte 

Duro, 110 Sect. at 2059. The Duro Court extended that rule by 

holding that tribal jurisdiction does not extend to non-member 

Indians. Id, at 2059, 

Not only is Don Juneau not a member of the Blackfeet Tribe, he 

is not an Indian. Therefore, under Duro the Blackfeet Tribe has no 

criminal jurisdiction over him. We hold that the State of Montana 

has jurisdiction over non-Indian defendants for crirees committed on 

the reservation where there is no Indian victim. 

Does the State of Montana have authority to regulate gambling 

on the reservation? 

Defendants maintain that it is not the involvement of the 

defendants with the tribe that is at issue here, but rather the 

interfere with tribal ssverei nty. They point ou that the failure 

sf the State to re late gambling on the reservation will not 

impede the State's ability to re ling outsi 
its right to self-govern, 

The State maintains that the determination of jurisdiction 

over the ga eE 

articularized in and tribal interests at 

stake as reflected in federal law and the State interests at stake. 

The State maintains that it has a substantial interest in 

protecting its citizens from the problems associated with 

unregulated gambling and that Montana has strictly regulated 

gambling. Section 23-5-102, MCA (1987). Finally, the State 

contends that the exercise of state authority within the Blackfeet 

Reservation does not infringe upon federal or tribal interests 

where a non-Indian commits an offense against a non-Indian. 

In White Mountain Apache Tribe v. Bracker (1980)' 448 U.S. 

136, 100 Sect. 2578, 65 L.Ed.2d 665, the State of Arizona sought to 

apply its motor carrier license and use taxes to the Pinetop 

Lagging Company (Pinetop). Pinetop consisted of two non-Indian 

corlporatisns doing business solely on the Reservation. Pinetop 

paid the taxes under 

under federal. Pa taxes csul. 

logging activities conducted exclusively within the re 

on hauling activities on Bureau of Indian Affairs (BIB 

roads. 
ates was a 

the federal gsveratment?~ regulation sf the harvesting, sale an 

White Mountain Tribe was also a party to the action, It argued 

e tax waul ave an adverse affe he TribeFs 

ositi~n of taxes woul mine the fed 

of assuring prefits which would inure to the Tribe. 

The Court concluded that federal management was so pervasive 

as to preclude the additional burdens resulting from the Arizona 

taxes and held that the Arizona taxes were preempted by federal 

law. It held that where a State asserts authority over the conduct 

of non-Indians engaging in activity on the reservation, a 

particularized inquiry must be made into the nature of the state, 

federal, and tribal interests at stake, an inquiry designed to 

determine whether, in the specific context, the exercise of state 

authority would violate federal law. White Mountain, 448 U.S. at 

145. 

In the case before us, in contrast to White Mountain, neither 

the United States nor the tribe are pa e action, The 

States cou arty and ar 

Tribe couB 

Statets involvement woul adversely af 

inance, but it did not. Onl the non-Indian 
tateps involvement 

State jurisdiction 

ses charged in the inform 

and June 1, 1988. The effective date of the Indian Gaming 

ctober 17, 198 

such an extensive regulatory act to alleged criminal activities 

which occurred prior to its enactment would be improper. It would 

violate both state and federal law with re 

laws. As previously noted, the United States could have made 

itself a party and argued for federal law preemption but chose not 

to do so. We do not find it necessary to further discuss the 

Indian ~aming Regulatory Act. 

With regard to the claimed adverse effect upon the Tribe's 

ordinance the recent case of Northern Border Pipeline Co. 

v. State of Montana (1989), 237 Mont. 117, 772 P.2d 829, is 

applicable. In that case this Court considered the argument on the 

part of Northern Border Pipeline Company, that the tax interfered 

with tribal self-government. This Court stated: 
Sioux ane Assiniboine Tribes. '! . Northern Border 

also cites tw3 recene state csurt decisicrLs, one front 

Arizoza and one fron New Mexico, for the proposition that 

consideration of a federal preemption claim necessarily 

includes consideration of self-government, thereby - f' affording standhcj for a nsn-~na_;ar, to assert a selfgovernment elaia, We disa ese hoidinqs, an 

decline to apply them. (Citations smittzd.: (E=phasis 

added. ) 

Northern Border Pi~eline Co., 237 Mont. at 128, 772 P.2d at 836. 

Based upon White Mountain Apache and Northern Border, we 

conclude that the defendants do not have standing to raise the 

argument that the action of the State interferes with the selfgovernment of the Blackfeet ~eservation. We hold that the State of 

Montana has authority to regulate gambling by non-Indians on the 

reservation. 

We hold that the District Court properly had jurisdictionwe concur: /4 

Justices ..- 

for Justice William E'. Hunt, Sr, 
Justice Terry N, Trieweiler concurrin in part an issenting in 

ith the majorit 

not offered sufficient evidenc an Indian 

as that status pertains to jurisdictional considerations. However, 

I disagree with this Court's holding in Siate v. Lal?er j1930), 242 

Mont. 335, 790 P. 2d 98 3, that to prove status as an Indian requires 

a person to prove both a significant amount of Indian blood and 

tribal or federal recognition. That test is antiquated and ignores 

the modern reality that many people of Indian descent are not 

enrolled tribal members for various reasons and that an inherent 

element of tribal sovereignty is to enroll members, regardless of 

their degree of Indian ancestry. However, in this case, Juneau has 

not proven Indian status by any criteria which has been previously 

recognized in case law or by federal statute. 

I concur wi at Indian tribes do 

not have criminal jurisdiction over non-Indians. However, that 

lack of jurisdiction is not based upon the U.S. Supreme Court's 

decision in Duro v. Reina (l990), 495 U.S. 676, 110 S. Ct. 2053, 109 

L. Ed. 2d 693. Duru was concerned with tribal authority to 

prosecute a nonmember Indian who committed a crime or, tribal land, 

Furthermore, regardless of Duro's applicability to this case, it has 

en effectively reversed by a subse ent Congressional action 

which restored tribal criminal jurisdiction over nonmember Indians 
who break the law on tribal land, As ointed out in iCfor.lsseau=c v. Ulitdd 

er 24, emergenc ion was pass 

e Indian Civil Rig U.S,C. 5 1301( 

and legislative the Supreme Court s 

holding in Buro. This islation was later 

laced with identical pe legislation on 

October 28, 1991. 

Indian tribes lack criminal jurisdiction over non-Indians who 

commit crimes on tribal land because of the U.S. Supreme Court Is 

S. Ct. 1011, 55 L. Ed. 2d 209. In his dissent to that decision, 

Justice Marshall stated: 

In the absence of affirmative withdrawal by treaty or 

statute, I an of the view that Indian tribes enjoy as a 

necessary aspect of their retained sovereignty the right 

to try and punish all persons who commit offenses against 

tribal law within the reservation. 

While I agree with Justice Marshall's dissent, and while the 

majority opinion in Oliphant appears to be neither historically nor 

legally well-founded, it does preclude tribal criminal jurisdiction 

over non-Indians for laws broken on the reservation. However, it 

does not logically follow that because tribes canno prosecute 

non-Indians who commit crimes in Indian country, that the State of 

Montana has jurisdiction over non-Indian defendants for crimes 

committed s the reservation. That conclusion in Issue I1 of the 
y opinion completely ignores the traditional role o 

ndian affairs. 

hether the ate of Montana 

has regulatory authority over any activity commi 

rough its criminal statutes or otheLrwise, 

is the test set forth by the U.S. Supreme Court in H%iie M~~~i~t~liri 

Apache Tribe v. Bracker (1980), 448 U.S. 136, loo S. ct. 2578, 65 

I;. Ed. 2d 665. In that case, the U.S. Supreme Court held that 

where, as in this case, @'a state asserts authority over the conduct 

of non-Indians engaging in activity on the reservation, there must 

[A] particularized inquiry into the nature of the state, 

federal, and tribal interests at stake, an inquiry 

designed to determine whether, in the specific context, 

the exercise of state authority would violate federal 

law. 

The majority o inion has perfo ed no such analysis. It 

relies on its previous decision in Northem Border Pipeline Company v. State 

(1989), 237 Mont. 117, 772 P.2d 829, for its refusal to do so. For 

reasons I will explain later in this opinion, I decline to follow 

this Court % decision in ~Vo~hem Border elim. However, the maj ority 

(which relies on i\i'i, em BorderBiQelize) has refused to even perform 

that degree of analysis which is required by its previous decision. 

In I%'orthem BorderPigeline, the dispute was over property taxes assessed 

by the State of Montana against that portion of a natural gas 

pipeline which traversed an Indian reservation, but which was owned 
by a noa-Indian corporation. The portion w 

preempted by federal regulation and that its tax interfered with 

the Tribes8 sovereign ri hts of self- After an 

extensive discussion of federal regulation in this area, the 

ma j ority concluded ax was nei her preempted by federal 

statutes nor regulations, However, it held that since neither the 

Tribes nor the federal government were parties to the suit, 

plaintiff did not have standing to assert the Tribest sovereign 

right of self-government. 

I disagree with that conclusion because under the miteMo~lntain 

test, an analysis of the state, federal, and tribal interests 

involves related considerations which cannot be analyzed 

separately. After pointing out in the miteMountain decision that 

both federal law an the rights of rese ians to make 

their own laws may provide independent, but related barriers to the 

assertion of state regulatory authority, the U.S. Supreme Court 

stated: 

The two barriers are independent because either, standing 

alone, can be a sufficient basis for holding state law 

inapplicable o activity undertaken on the reservation or 

y tribal ers, They are d, however, in two 

mportant . The right of self-government is 

ultimately ndent on an road power of 

Congress. 

FtihireMountain, 448 U.S. at 143, 
ore, I agree with t e reasoning af the Court of A 

The state asserts that Pea 

ference with tribal 

ree, In Ramah Navajo 

32, 102 S. (19821, the 

United States Supreme Co o determine 

state tax m 0 a business 

on Indian rese 

federal law, federal, tribal, and state interests must be 

analyzed - "These interests tend to erect two 

'independent but relatedt barriers to the exercise of 

state authority over commercial activity on an Indian 

reservation: state authority may be pre-empted by federal 

law, or it may interfere with the tribe's ability to 

exercise its sovereign function^.'^ Id. at 837, 102 S.Ct. 

at 3398, 73 L.Ed.2d at 1179; White Mountain Apache Tribe v. 

Bracker, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 

(1980). Because the preemption issue cannot be 

considered without also considerins the tribal 

sovereisntv issuer,l Peabody, of necessity, must have 

standina to raise the issue of interference with tribal 

sovereisntv. [Emphasis added.] 

Peabody Coal Co,, 761 P. 2d at 1098-99, denied (1989) , 490 U,S, 1051, 

Therefore, I will discuss in this opinion both federal 

preemption and the State's interference with the Tribe's ability to 

exercise its sovereign function, However, by failing to discuss 

either issue, the majority has not even followed its previous 

decision in LAl~a!~em Border I;t"E'pelke ghich it relied on to ign~re the 

issues raised by defendants on appeal. 

L PREEMPTION 

rnment in the issue of 

gambling on Indian reservations is extensive. In 1951, Congress 
prohibited the possession of gambling devices in Indian country. 

15 U.S,C, 5 1175 (1951)- In 1970, Congress enacted the Organized 

prohibits an provides federal unishment for the operation of 

illegal gambling businesses. That Act has been previously held 

le to India reservations, Un States v. F~~T; (9th Cir. 

1980), 624 F.2 (19811, 449 U-S, 1111, 101 S. Ct. 

920, 66 L. Ed. 2d 839. 

However, the most comprehensive federal preemption of all is 

contained in the Indian Gaming Regulatory Act which was enacted by 

Congress and became effective on October 17, 1988, Its provisions 

are included in 18 U.S.C. 85 1166 to 1168 (l988), and 25 U.S.C. 

05 2701 to 2721 (1988). For purposes of considering the federal 

and Indian interests in this issue, it is especially enlightening 

to refer to the Congressional findings which precede the actual 

terms of the Act and are set forth at 25 U.S,C. 5 2701 (1988). 

There, Congress stated that: 

(1) numerous 1ndian tribes have become engaged in 

or have licensed gaming activities on Indian lands as a 

means of generating tribal governmental revenue; 

(2) Federal courts have held that section 81 of 

ires Secre aria1 review of management 

contracts dealing with 1ndian gaming, but does not 

provide standards for approval of such contracts; 

(3) existing Federal law does not provide clear 

regulations for the conduct of gaming on 

a1 goal of Pe a1 Indian policy is 

promote tribal economic development, tribal 

self-sufficiency, and strong tribal government; and 
on these policy consi ions, Congress has 

establishe comprehensive and extensive control ov ling on 

Indian reservationsI including legalization of some forms of 

gambling, 18 U.S.C. 5 1166(c) (1) (1988); establishment of a 

commission to monitor gaming on Indian lands, 25 U.S. 2, 55 2704 and 

2706 (1988) ; delegation of exclusive jurisdiction to the tribes 

over some forms of gambling, 25 U.S.C. 5 2710 (1988) ; authorization 

for tribes to enter into negotiations with the various states for 

the purpose of reaching an agreement concerning the conduct of 

gaming activities on reservations, 25 U. S, C. 5 2710 (d) (3) (A) 

(1988 j ; authority for tribes to enter into management contracts for 

the operation of gaming facilities, 5 U,S,C, 5 2711 (1988) ; and 

provision for the imposition civil ine for violation of 

any of the Act's provisions, 25 U.S.C. 5 2713 (1988). Most 

importantly, however, may be the provision found at 18 U.S.C. 

5 1166 (d) (1988) which provides that: 

The United States shall have exclusive jurisdiction over 

criminal prosecutions of violations of State ga 

laws that are made applicable under this sect 

tri rsuant to a 

Tribal-Stat the tary of the 

Interior under section 1I(d)(8f of the Indian Gaming 

Regulatory Act, or under any other provision of ral 

law, has consent to the transfer to the S of 

on with respect to gambling on the 

lands of the Indian tribe. 
statute, wh 

grounds that the violations that are alleged in this case occurred 

prior to the effective date of the Federal. Act. The majority 

reasons that to a ply the unequivocal federal preemptions found at 

18 U.S.C. 5 1166(d) (19 8) would violate constitutional provisions 

which prohibit ex post fact0 laws. However, in making this argument, 

the majority completely ignores its previous definition of ex post 

facto laws. In Statev.Lei.stiko (Mont. 1992), 844 P.2d 97, 49 St. Rep. 

1104, we established a two-part test to determine whether a statute 

violates the ban on expost facto laws. In order to satisfy the test, 

we held that: "(1) the law must be retrospective, and (2) it must 

disadvantage the offender affected by it. Millerv. Florida (1987), 482 

U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360-61." 

Leistiko, 844 P.2d at 100. We also held that ii [tjo meet the second 

prong of the test, the United States Supreme Court has said, "i]t 

is axiomatic that for a law to be ex post facto it must be more 

onerous than the prior law. [Citation omitted. ] Lekdko, 844 P, 2d 

at 100. 

lied to the facts in this case, 18 U.S.C. 1166(d) 

(1988) is not an expostfacto law because it would not disadvantage 

ants- It does not change the substantive law that 

pertained to their conduct. It merely specifies which government 
has jurisdiction to prosecute them for violations of those State 

gaming laws that they are accus of having violated. It is merely 

v. fl/ilemaiz (1979), 185 Mont, 299, 315, 605 .2d 1000, 1011, "changes 

in procedure not affecting materially the rights of a defendant do 

not. come within the constitutional prohibitionn against ex post fact0 

laws. 

The provision found at 18 U.S.C. 116Q(d) (1988) is clearly 

procedural, and became effective on October 17, 1988. The 

prosecution of this action was not commenced until November 8, 

1988, and if for no other reason, was prohibited by the terms of 

this statute. It is clear that without considering the separate 

tribal interests, the independent but interrelated federal interest 

is sufficient to preclude the exercise of state jurisdiction over 

the defendants in this case. The federal government has 

specifically recognized by- s federal Indian policy is to 

promote tribal economic development and self-sufficiency and that 

the best way to do that is to give Indian tribes the exclusive 

authority to regulate gaming activity on their reservations, so 

long as it is not specifically prohibited by federal law and is 

conducted in a state where the activity is not otherwise 

ed. 25 U.S.C. 5 2701 (1988). Furthermore, even when 

federal or state laws which regulate gambling are violated in 

Indian country, the federal government has exclusive jurisdiction 

over criminal prosecutions for those violations. 
While consi eration of federal. interests and federal 

ri is, by itsel f, a suf fieient ying state 

ndants, aE 

examination of tribal interests in this matter, and a compa 

the State's interest, make t e error of the majority opinion even 

clearer. 

TRIBAL INTERESTS 

First of all, it is clear that the Blackfeet Tribe provided a 

comprehensive set of laws regulating gambling on its reservation, 

even before federal enactment of the Indian Gaming Regulatory Act. 

In 1975, the Blackfeet Tribe of the Blackfeet Resewation enacted 

an amendment to Ordinance No. 41 of the Blackfeet Tribal Law and 

Order Code of 1967. That amended ordinance permitted gambling on 

the Blackfeet Reservation only in accordance with the ordinance, 

It established a gaming commission for the purpose of adopting 

rules and regulations pertaining to gambling and for the purpose of 

issuing licenses to gaming establishments. The ordinance also 

provided for criminal penalties for its violation. 

In addition to setting up this regulatory system for gaming on 

the Blackfeet Reservation, the Tribal Ordinance set forth specific 

regulations regarding sports or gambling pools; punch boards, pull 

tabs, and similar devices; bingo, raffles, and ens; horse race 

betting and pari-mutuel betting; setting the legal age for 

gambling; prohibiting gambling for anything other than cash; and 

establishing specific procedures for criminal and civil enforcement 

of the ordinance. There can be no question that state regulation 
under these circumstances would have a strong impact "on the right 

of reservation Indians to make their own laws and he ruled by 

hemore, the facts in this ease demonstrate that almost 

all of the impac of the gaming operation which the defendants were 

as upon Indians located on the Blackfeet Reservation. 

The Montana Restaura -t; and Casino, here the activit complained of 

took place, was owned by three people, Donald Juneau, Bob Juneau, 

and Carl Kipp. Both Bob Juneau and earl Kipp were Indians. The 

evidence indicated that, on the average, 90 percent of the 

customers who gambled on the premises were Indian, Of the 21 

employees at the business, 20 were Indian. And before the business 

could operate, both a tribal business permit and a license for each 

video poker and keno machine had to be issued by the Tribal 

Department of Revenue, In other words, the Tribe had an interest 

in protecting the businessVs customers, providing employment on the 

reservation, and in generating tribal revenue. 

It is clear from all of the foregoing that tribal interests 

and the interests of the Tribe in self-government weigh heavily in 

favor of prohibiting State jurisdiction over the activities of the 

defendants, 

STATE INTEREST 

The State interest, on the other hand, is very slight, if any 

exists at all. The State contends that it 

interest in regulatin ate of Montana in 

order to protect the welfare of its citizens and avoid the 
domination of gaming en ganized crime- It cites 

authority fo 

of its citi 

patterns, the increase in local crime, the fostering of 

prostitution, the development of corruption, and the infiltration 

cr ime . iVo~~das de 

U.S. 328, 341, 106 %. Ct, 296 2977, 92 L. Ed. 2d 266, 280. 

The State's expressed concern for the moral well-being of its 

citizens would be more persuasive if it was not engaged in the 

promotion of gambling activities through its own state lottery (see 

Montana State Lottery Act of 1985, Title 23, Chapter 5, Part 10, 

renumbered in 1991 as Title 23, Chapter 7, seespecifca@, 5 23-7-102, 

MCA), and if local governments were not becoming increasingly 

dependent on revenue generated by off -reservation gambling 

erprises. (See S 23-5- 09, MCA, Bin o and. Kens; 23-5-306, MCA, 

Live Card Game Tables; §3 23-5-610 and -612, MCA, Video Gambling 

Machines.) However, even if the State's concerns could be accepted 

at face value, nothing has been accomplished in this case by the 

prosecution of these defend he State concedes that it has no 

authority to prosecute Indians for activities conducted on Indian 

land, and therefore, Dona uneaufs partners who are Indian, 

the time of the istrict Court hearing in this case) in the same 

fashion that they have always operated it without any interference 
from the State, Refusal to allow the State to regulate the 

defendantsf ling activities on Indian land will have absolutely 

erail regulation sf 

the State of Montana. 

CONCLUSION 

easons, I do not see how any responsible 

consideration of the factors we nave been compelled to consider by 

the U.S. Supreme Court in U/hitelMountrrin can lead to any conclusion 

other than that, when considering state, federal, and tribal 

interests in the context of this case, the exercise of State 

authority over the defendants for the crimes they have been charged 

with would violate federal law and unreasonably interfere with the 

tribal interests which are at stake. 

Therefore, I conclude that the judgment of the District Court 

should be reversed and the charges against the defendants should be 

dismissed. 

Justice Karla M. Gray concurs in the foregoing concurrence and 

dissent.