No. 88-152 

IN THE STJPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsJAMES THOMAS, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

George Schunk, Asst. Atty. General, Helena 

For Respondent: 

George T. Radovich, Billings, Montana 

Submitted on Briefs: July 14, 1988 

Decided: August 25, 1988 

Filed: a6 2 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

The State appeals the decision of the Sixteenth Judicial 

District Court contending that the lower court erred in 

construing the limits of its jurisdiction. We agree with the 

State and reverse. 

The issue is: Do state courts have jurisdiction over a 

non-Indian charged with violating S 61-7-108, MCA, on an 

Indian reservation? Section 61-7-108, MCA, reads: 

Immediate notice of accidents. The driver of a 

vehicle involved in an accident resulting in injury 

to or death of any person or property damage to an 

apparent extent of $250 or more shall immediately 

by the quickest means of communication give notice 

of such accident to the local police department if 

such accident occurs within a municipality, 

otherwise to the office of the county sheriff or 

the nearest office of the highway patrol. 

The relevant facts are as follows: Respondent Thomas 

allegedly struck a calf owned by the Parkers, an Indian 

family ranching on the Northern Cheyenne Reservation. The 

State alleged that Thomas violated the statute by leaving the 

scene of the accident without giving notice to law 

enforcement. 

The District Court held that state courts do not have 

jurisdiction for the crime of failing to report an accident 

where: the accident occurred within the reservation, the 

driver was a non-Indian, and the property involved in the 

accident belonged to an Indian. The lower court reached its 

conclusion by applying Oliphant v. Suquamish Indian Tribe 

(1978), 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, and the 

adoption of the enabling act of Montana under Article I of 
the Montana Constitution. Oliphant, according to the lower 

court, prevents jurisdiction of the offense at issue in 

tribal court because respondent Thomas is a non-Indian. The 

Montana Constitution, according to the lower court, prevents 

jurisdiction in state courts under Montana's enabling act 

because the act provides that reservations are under the 

absolute jurisdiction of the United States. We disagree with 

the lower court and reverse on the authority of United States 

v. Wheeler (1978), 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 

303, and Draper v. United States (18961, 164 U.S. 240, 17 

S.Ct. 107, 41 L.Ed. 419. We hold for the purposes of remand 

that the state has jurisdiction. 

First, in regard to the lower court's holding on Article 

I of the Montana Constitution, the lower court failed to 

consider Draper. Draper held that the prohibition in 

Montana's enabling act against state jurisdiction on Indian 

reservations did not prevent the State from assuming 

jurisdiction of crimes committed by non-Indians against 

non-Indians. Draper, 164 U.S. at 244. 

Construction of the applicable federal jurisdictional 

statute also confirms that state courts have jurisdiction of 

certain crimes committed on Indian reservations. The 

statute, 18 U.S.C. § 1152, reads 

Except 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. 

This section shall not extend to offenses 

committed by one Indian against the person or 

property of another Indian, nor to any Indian 

committing any offense in the Indian country who 

has been punished by the local law of the tribe, or 

to any case where, by treaty stipulation, the 

exclusive jurisdiction over such offenses is or may 

he secured to the Indian tribes respectively. 
18 U.S.C. § 1152 (1983). 

According to the United States Supreme Court: 

Despite the statute' s broad language, it does 

not apply to crimes committed by non-Indians 

against non-Indians, which are subject to state 

jurisdiction. 

Wheeler, 435 U.S. at 325 n. 21. Thus, Oliphant ' s rule 

mandating federal jurisdiction for crimes committed by 

non-Indians against Indians or their property does not apply 

unless § 61-7-108, MCA, can be classified as a crime against 

an Indian or an Indian's property. 

The difficulty here is in classifying an offense under § 

61-7-108, MCA, as one by a non-Indian against an Indian or an 

Indian's property. The State argues that the offense 

constitutes a victimless crime because it makes the 

perpetrator culpable irrespective of injury to person or 

property. In this situation, the State argues that the 

following analysis applies: 

[Iln determining whether a state may properly 

assert its authority over the conduct of 

non-Indians engaging in activity on the 

reservation, the court should analyze the nature of 

the state, federal, and tribal interests at stake. 

See White Mountain Apache Tribe v. Bracker, 448 

U.S. 136, 144-45, 100 S.Ct. 2578, 2584, 65 L.Ed.2d 

Prosecution of the possessory offense involved 

in the case at bar within the state courts involves 

no infringement on tribal sovereignty. Burrola is 

a non-Indian whose alleged offense did not arise 

out of contact with an Indian or Indian property. 

State v. Burrola (Ariz. App. 1983), 669 P.2d 614, 615. Other 

courts facing inquiries concerning "victimless" crimes, such 

as DUT or possession of marijuana, have analyzed the issue in 
a similar manner. See State v. Warner (N.M. 1963), 379 P.2d 

66; State v. Herber (Ariz. App. 1979), 598 ~.2d 1033. ~nd 

one authority has explained that: 

Under the logic of United States v. McBratney 

and Draper v.United States, victimless crimes by 

non-Indians appear to be subject to state 

jurisdiction. Those cases held that jurisdiction 

over crimes by non-Indians against non-Indians in 

Indian country rests with the state. However, 

their reasoning and their holdings appear broad 

enough to encompass non-Indian victimless offenses 

as well. McBratney concluded that the state 

maintained iurisdiction over all white persons on 

the Ute reservation, and Draper held that the state 

had not been deprived of the power to punish crimes 

committed on a reservation "by other than Indians 

or against Indians." In practice, victimless 

offenses by non-Indians have been treated in a 

number of cases as subject to state jurisdiction 

under McBratney and ~ra~er, onthe theory that 

neither Indians nor their property are affected. 

M.B. West, Manual of Indian Criminal Jurisdiction 99 (1977 & 

Supp. 1982). 

Thomas responds that the crime charged here 

distinguishes this case from decisions by other courts on 

victimless crimes. Thomas points out that in Burrola, for 

example, the court described the crimes as not arising from 

contact with Indian property. Here, Thomas argues, the crime 

did arise from contact with Indian property, to wit, Parkers' 

calf. 

First, we agree with the State and hold that the crime 

in question cannot be characterized as an offense against 

Indian property. The allegedly criminal act is the failure 

to discharge a reporting duty, not infliction of damage upon 

property belonging to an Indian. Thus, the offense is 

analogous to crimes other courts classify as victimless, and 
it should be analyzed as a victimless crime for the purposes 

of determining jurisdiction. 

In determining jurisdiction for victimless crimes, we 

agree that federal, tribal, and state interests should be 

examined. Burrola, 669 P.2d at 615. We hold here that the 

federal and tribal interests in providing a federal forum 

fail to outweigh the State's strong interest in traffic 

safety. Our reasoning is based on the fact that the policy 

of providing a federal forum where criminal prosecutions pit 

the interests of non-Indian offenders against Indian victims 

is not furthered where, as here, the connection to 

destruction of Indian property is only tangential to the 

crime charged. Under these circumstances, the State's 

interests in highway safety control the issue. Thus, we 

reverse and remand for further proceedings. 

Thomas, without raising the issue in the lower court, 

and without cross-appealing, has improperly attempted to 

claim denial of the right to a speedy trial on this appeal. 

See Rule 14, M.R.App.P. We refuse to review the issue. 1 

Chief Justice 

Justices