State v. Reber; State, in the interest of C.R.

2007 UT 36
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20060299
Plaintiff, Petitioner,
and Cross-Respondent,
v.
Rickie L. Reber; Tex William Atkins;
and Steven Paul Thunehorst,
Defendants, Respondents,
and Cross-Petitioners.
____________________________________
State of Utah, in the interest of No. 20060304
C.R., a person under 18 years of age.
F I L E D
April 24, 2007
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Eighth District, Vernal Dep’t
The Honorable A. Lynn Payne
No. 021800320
Attorneys: Mark L. Shurtleff, Att’y Gen., Joanne C. Slotnik,
Asst. Att’y Gen., Salt Lake City, Edwin T. Peterson,
Vernal, for plaintiff
Michael L. Humiston, Heber City, for defendants
and C.R.
Kimberly D. Washburn, Draper, Tod J. Smith, Boulder,
CO, Charles L. Kaiser, Charles A. Breer, Peter J.
Hack, Denver, CO, for amicus Ute Indian Tribe
---
On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 The State seeks review of the court of appeals’
decision vacating the convictions of Defendants Reber,
Thunehorst, and Atkins. Reber was convicted of aiding or

1 Because Thunehorst and Atkins stipulated that rulings made
with respect to jurisdiction and Indian status in Reber’s case
would be binding on them, we base our analysis on the facts in
Reber’s case.
Nos. 20060299, 20060304 2
assisting in the wanton destruction of protected wildlife in
violation of Utah Code sections 23-20-4 and -23. Thunehorst and
Atkins were each convicted of attempted wanton destruction of
protected wildlife. The juvenile case against Reber’s son, C.R.,
has been consolidated with this case for purposes of review.
¶2 In vacating the convictions, the court of appeals
concluded that the State lacked jurisdiction. We disagree, and
accordingly reverse.
BACKGROUND
¶3 During the 2002 deer hunting season, Reber’s son shot
and killed a large mule deer with Reber’s assistance. While
transporting the deer, Reber was stopped at a checkpoint in
Uintah County where the Utah Division of Wildlife Resources was
checking for chronic wasting disease in deer. Conservation
officers saw the large buck in the truck bed with no state
hunting permit, license, or tag attached to the animal. Because
Reber’s son, C.R., had killed a trophy buck, the State charged
Reber with aiding and assisting in the wanton destruction of
wildlife, a third degree felony under Utah Code section 23-20-
4(3)(a). C.R. was referred to juvenile court.
¶4 During the same hunting season, Atkins shot a buck in
Uintah County, and Thunehorst assisted him. They were both
charged with class A misdemeanors under Utah Code section 23-20-
4(3)(b).
¶5 Reber filed a motion to dismiss his case, claiming that
he is an Indian and was hunting in Indian country and that the
State therefore lacked jurisdiction over him. Atkins and
Thunehorst made the same claims but stipulated that the district
court’s ruling on Reber’s motion would apply to their cases.1
The district court denied Reber’s motion, and a jury convicted
him. Atkins and Thunehorst entered conditional pleas to class B
misdemeanors. All three adult parties appealed to the Utah Court
of Appeals, and their appeals were consolidated. C.R., also
asserting a lack of State jurisdiction, was adjudicated
delinquent on the same basis. He also seeks review.
¶6 The court of appeals vacated the convictions. The
court noted that a state has jurisdiction over crimes that occur

2 State v. Norris, 2007 UT 6, ¶ 10, 152 P.3d 293.
3 Id.
4 18 U.S.C. § 1151 (“[T]he term ‘Indian country’ . . . means
all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running
through the reservation . . . .”).
5 Solem v. Bartlett, 465 U.S. 463, 465 n.2 (1984) (citation
omitted).
3 Nos. 20060299, 20060304
in Indian country only if neither the defendant nor the victim is
Indian. The court of appeals determined that because the crimes
did in fact occur in Indian country, and because the Ute Indian
Tribe was the victim of the crimes, the State lacked
jurisdiction. Having already determined that the State lacked
jurisdiction, the court of appeals did not reach defendants’
Indian status claims.
¶7 We granted certiorari to determine whether, due to
either a regulatory interest over hunting or a property interest
in wildlife, the Ute Indian Tribe is a victim of illegal hunting
within Indian country. We also granted certiorari to determine
whether Defendants have sufficiently demonstrated that they are
Indians and, as such, are outside the jurisdiction of the State
for acts committed in Indian country.
STANDARD OF REVIEW
¶8 On certiorari, we review the decision of the court of
appeals, not that of the the trial court.2 Whether the district
court or the juvenile court has jurisdiction is a question of law
that we review for correctness, giving no deference to the lower
court.3
ANALYSIS
¶9 All parties agree that the land on which the crimes
occurred in this case was part of Indian country as defined by
federal statute.4 The United States Supreme Court has described
the extent to which states may exercise jurisdiction over crimes
committed in Indian country. “Within Indian country, state
jurisdiction is limited to crimes by non-Indians against non-
Indians and victimless crimes by non-Indians.”5 This crime was
not committed against a “non-Indian.” Either the acts charged
here are victimless, or the victim is the Ute Indian Tribe.

6 State v. Reber, 2005 UT App 485, ¶ 11, 128 P.3d 1211.
7 Id. at n.3
8 114 F.3d 1513 (10th Cir. 1997).
9 The Uncompahgre Reservation is now the southern section of
(continued...)
Nos. 20060299, 20060304 4
Consequently, the State has jurisdiction only if Defendants are
non-Indians and if this was a victimless crime.
¶10 The court of appeals concluded that “[b]ecause
Defendant’s acts of hunting on Indian country affected the Ute
Tribe’s regulatory interest, the tribe is the victim.”6 The
court also suggested that, in addition to the regulatory
interest, “[a]n argument might also be made that the Ute Tribe
had a property interest in the wildlife” sufficient to make it
a victim.7 We disagree and conclude that Defendants are non-
Indians who committed a victimless crime within Indian country
but not on Indian land and that, therefore, the State has
jurisdiction.
I. DEFENDANTS’ ACTIONS CONSTITUTE A VICTIMLESS CRIME
A. The Ute Tribe’s Regulatory Interests Were Not Violated
¶11 All parties agree that the animals were killed in
Indian country. Indian country is defined by Congress in 18
U.S.C. section 1151 as lands within the historic tribal
boundaries. Indian country today may, and often does, include
lands lawfully held in fee by non-Indians, as well as lands held
by tribes, Indians individually, or others in trust for Indians.
It may also contain, as in this instance, federal lands under the
auspices of the Bureau of Land Management or the National Forest
Service.
¶12 With respect to the Indian country border that
encompasses the scene of these crimes, and the character of the
contained land, there has been much litigation. Defendants argue
that under the most recent decision on this issue, Ute Indian
Tribe of Uintah & Ouray Reservation v. Utah (“Ute Tribe V”),8 the
State of Utah has no jurisdiction in this case. It does, in
fact, appear that Ute Tribe V offers support for Defendants’
position. In that case, the United States Circuit Court for the
Tenth Circuit states, “[T]he Tribe and the federal government
retain jurisdiction over all trust lands, the National Forest
Lands, [and] the Uncompahgre Reservation . . . .9 The State

9(...continued)
today’s Uintah and Ouray reservation. United States v. Von
Murdock, 132 F.3d 534, 540 (10th Cir. 1997).
10 Ute Tribe V, 114 F.3d at 1530.
11 450 U.S. 544 (1981).
12 Id. at 558-59.
13 Id. at 563 n.12.
14 See id. at 564-65.
15 Further, in Solem v. Bartlett, the Supreme Court
(continued...)
5 Nos. 20060299, 20060304
[has] jurisdiction over the fee lands removed from the
Reservation under the 1902-1905 allotment legislation.”10
¶13 Were we to accept Defendants’ reading of Ute Tribe V,
the State of Utah would be without jurisdiction, since it is
undisputed that the crimes took place within the original
boundaries of the Uncompahgre Reservation. However, the crime
scene was either on lands owned by the State or on National
Forest land, miles from the nearest land owned by any Indian or
Indian tribe. Nevertheless, the language of Ute Tribe V gives us
pause.
¶14 Fortunately, the United States Supreme Court has given
further guidance. In Montana v. United States,11 the Court held
that an Indian tribe’s authority to regulate fishing and hunting
“only extend[s] to land on which the Tribe ‘exercises absolute
and undisturbed use and occupation’” and “that power cannot apply
to lands held in fee by non-Indians.”12
¶15 We are compelled to read Montana to say that there is a
jurisdictional difference between “Indian country” and “Indian
lands” or “Indian property owners.”13 The Court concluded that
“[s]ince regulation of hunting and fishing by nonmembers of a
tribe on lands no longer owned by the tribe bears no clear
relationship to tribal self-government or internal relations, the
general principles of retained inherent sovereignty [do] not
authorize” a tribe to adopt a resolution regulating hunting and
fishing.14 In other words, the Ute Tribe has no regulatory
authority to be offended by acts of Defendants here because the
acts did not take place on Indian land over which the tribe
claimed, or could claim, regulatory authority over hunting and
fishing.15

15(...continued)
indicated that states have jurisdiction over victimless crimes
committed by non-Indians in Indian country. 465 U.S. 463, 465
n.2 (1984). This crime fits that categorization.
16 The Ute Tribe, present and represented by counsel as
amicus before us, disclaimed any such regulatory interest.
17 Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284
(1977).
18 White Mountain Apache Tribe v. Arizona, Dep’t of Game &
Fish, 649 F.2d 1274, 1283 (9th Cir. 1981).
19 Id.
Nos. 20060299, 20060304 6
¶16 Although the crimes in this case took place in Indian
country, it is undisputed that the land on which the crimes took
place is not owned by any Indian or Indian tribe. Because the
Supreme Court has held that Indian tribes have no authority to
regulate hunting and fishing on non-Indian-owned land, we must
conclude that the Ute Tribe has no regulatory interest over
hunting by non-Indians on this land.16 As such, the court of
appeals incorrectly relied on that regulatory interest as the
basis for concluding that the Ute Tribe was a victim.
B. The Ute Tribe’s Property Interests Were Not Violated
¶17 In addition to having no regulatory interest in hunting
on the land in question, the Ute Tribe has no property interest
in living, roaming wildlife on the land. Again, we rely upon the
authority of the United States Supreme Court. The Court has said
that
it is pure fantasy to talk of “owning” wild
fish, birds, or animals. Neither the States
nor the Federal Government, any more than a
hopeful fisherman or hunter, has title to
these creatures until they are reduced to
possession by skillful capture.17
¶18 Federal courts have applied the same analysis to Indian
tribes: “The fact that fish and game are presently upon an Indian
reservation does not negate the state interest in conserving them
. . . .”18 Moreover, “[a] tribe cannot claim to ‘own’ the fish
and game on the reservation.”19 And if not on Indian land, then
surely not on non-Indian-owned land. Accordingly, Defendants’

20 45 U.S. (4 How.) 567 (1846); see State v. Perank, 858
P.2d 927, 932 (Utah 1992).
21 Perank, 858 P.2d at 932 (emphasis added).
22 Id. at 933.
23 25 U.S.C. § 677.
7 Nos. 20060299, 20060304
acts did not violate any property interest of the Ute Tribe in
the wildlife.
¶19 Because the Ute Tribe neither has, nor claims,
authority to regulate hunting on the land within Indian country
at issue in this case, and because the Tribe also has no
protected property interest in wildlife, the Ute Tribe is not,
and cannot be, a victim of these crimes. Other than the wildlife
itself, these crimes have no victims. These are, then,
victimless crimes within Indian country but not on Indian land.
II. DEFENDANTS FAIL TO ESTABLISH THAT THEY ARE INDIANS
¶20 Defendants claim to be Indians. We conclude that they
are not, as that term has been defined by federal law.
¶21 In the 1846 decision United States v. Rogers,20 the
Supreme Court established factors to be evaluated in determining
Indian status. Courts, including ours, have concluded that under
Rogers, in order to claim the status of an Indian, a person must
“(1) [have] a significant degree of Indian blood and (2) [be]
recognized as an Indian by a tribe or society of Indians or by
the federal government.”21 Defendants do not meet either of
these requirements.
¶22 In applying the Rogers factors, we recognized in Perank
that a person “with less than one-half Indian blood [can qualify
as having] a significant degree of Indian blood.”22 However, we
have found no case in which a court has held that 1/16th Indian
blood, as claimed by defendants, qualifies as a “significant
degree of Indian blood.”
¶23 Even were we to conclude that 1/16th Indian blood meets
the requirement in Rogers, defendants would still fail to
establish their Indian status. Defendants’ ancestors, through
which they claim Indian blood, were individually listed on the
Ute Partition Act final termination roll.23 In United States v.

24 132 F.3d 534 (10th Cir. 1997).
25 Id. at 536.
26 Id. (quoting Chapoose v. Clark, 607 F. Supp. 1027 (D.
Utah 1985)).
27 Id. at 541.
Nos. 20060299, 20060304 8
Von Murdock,24 the United States Court of Appeals for the Tenth
Circuit, in addressing the operation and effects of the Ute
Partition Act, concluded that an individual born to “parents
[who] were listed on the final roll [of the Act]” was “not a
member of the Ute Indian Tribe.”25 “‘Nor can the children of a
terminated [parent] claim membership in the tribe through [that]
parent.’”26 Because Defendants’ ancestors lost their legal
status as Indians, Defendants have no Indian blood for purposes
of being recognized by an Indian tribe or the federal government.
They therefore fail the first element of the Rogers test.
¶24 Defendants also fail the second element of the Rogers
test. The Uintah Band, in which they claim membership, is not
recognized as a tribe by the federal government. As a
consequence, Defendants’ claimed membership in that tribe does
not help establish their Indian status under federal law. The
Tenth Circuit directly addressed this impact in Von Murdock,
saying,
The [Ute Tribe] Constitution thus makes clear
that the Bands ceased to exist separately
outside the Ute tribe, that jurisdiction over
what was formerly the territory of the Uintah
Band was to be exercised by the Ute Tribe,
and that the rights formerly vested in the
Uintah Band were to be defined by the Ute
Constitution and exercised by the Ute Tribe.
In light of these provisions, [the] argument
that the Uintah Band’s hunting and fishing
rights retain a separate existence and belong
only to the Uintah Band is groundless. Even
if . . . the Uintah Band continues to
maintain its own identity, under the Ute
Constitution the Band does so only within the
context of the Ute Tribe.27
¶25 This same analysis applies to the defendants in this
case. Defendants concede that they are not members of the Ute
Tribe. They claim to be members of the Uintah Band or Tribe.

28 If an individual wishes to establish Indian status before
this court, he must seek recognition as an Indian from a
recognized Indian tribe. If, as is the case here, an entire
tribe seeks to be recognized, the tribe must look to the federal
government for recognition. Absent federal approval, we are not
in the position to recognize new tribes, and we must, in
accordance with Rogers, find against Indian status.
29 Perank, 858 P.2d at 932.
9 Nos. 20060299, 20060304
However, under federal law, the Uintah Tribe no longer has a
separate existence apart from the Ute Tribe. As a result,
Defendants do not belong to a federally recognized tribe and are
not Indians under federal law.
¶26 We are bound by the determinations of the United States
Supreme Court and the Rogers decision. Further, we are not at
liberty to decide which individuals are or should be “recognized
as an Indian” by Indian tribes or the federal government. Such
recognition is at the discretion of those entities.28 We
conclude that, under Rogers, Defendants have failed to establish
that they are Indians. Defendants do not have “a significant
degree of Indian blood,” nor are they “recognized as . . .
Indian[s] by a [federally recognized] tribe or society of Indians
or by the federal government.”29
CONCLUSION
¶27 The State has jurisdiction over these defendants. A
state has jurisdiction over crimes committed in Indian country
when a non-Indian commits a victimless crime. Defendants are not
Indians, as that term has been defined by federal law, and the
crimes in these cases were victimless. Accordingly, we reverse
the decision of the court of appeals and reinstate the
convictions.
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¶28 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.