                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1656
                            Filed February 11, 2015

MICHAEL YOUNG,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly,

Judge.



      Petitioner appeals the dismissal of his application for postconviction relief.

AFFIRMED.



      Michael Young, Tama, appellant pro se.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Brent D. Heeren, County Attorney, and Patrick McMullen, Assistant

County Attorney, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.

       Michael Young, an enrolled member of the Sac and Fox Tribe of the

Mississippi in Iowa, was convicted of operating a motor vehicle without a license,

a simple misdemeanor, in violation of Iowa Code section 321.174 (2009). He

challenged his conviction and sentence in a postconviction-relief proceeding,

arguing the district court lacked jurisdiction to impose judgment and sentence for

this offense on an enrolled member of the Sac and Fox Tribe occurring on the

roadway of an Indian Reservation Road.          The district court denied Young’s

application for postconviction reflief, and Young filed this appeal. We affirm the

judgment of the district court.

                                          I.

       A criminal defendant may raise a jurisdictional challenge to his conviction

and sentence in postconviction-relief proceedings.      Iowa Code § 822.2(1)(b).

“[W]e review proceedings concerning subject matter jurisdiction at law.” State v.

Lasley, 705 N.W.2d 481, 485 (Iowa 2005).

                                          II.

       “Subject matter jurisdiction is the power of a court to hear and determine

cases of the general class to which the proceedings in question belong, not

merely the particular case then occupying the court’s attention.”         Klinge v.

Bentien, 725 N.W.2d 13, 15 (Iowa 2006) (citations and internal quotations

omitted). “Lack of subject matter can be raised at any time.” Id. at 16. “If a court

enters a judgment without jurisdiction over the subject matter, the judgment is

void and subject to collateral attack.” Id.
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       Iowa has a unified trial court denominated “The Iowa District Court.” Iowa

Code § 602.6101.       “The district court has exclusive, general, and original

jurisdiction of all actions, proceedings, and remedies, civil, criminal . . . except in

cases where exclusive or concurrent jurisdiction is conferred upon some other

court, tribunal, or administrative body.” Iowa Code § 602.6101.

       One such exception to the district court’s jurisdiction over criminal

proceedings relates to offenses committed by or against Indians on an Indian

reservation.   “Indian tribes retain ‘attributes of sovereignty over both their

members and their territory.’” California v. Cabazon Band of Mission Indians,

480 U.S. 202, 207 (1987). “[T]ribal sovereignty is dependent on, and subordinate

to, only the federal government, not the States.”         Id.   Because the Federal

Constitution grants Congress plenary and exclusive power to legislate with

respect to Indian tribes, a State may exercise jurisdiction related to offenses

committed by or against tribal Indians for conduct occurring on an Indian

reservation only if Congress has granted the authority to do so. See Lasley, 705

N.W.2d at 486-87.

       In 1948, Congress conferred criminal jurisdiction over offenses committed

“by or against Indians on the Sac and Fox Indian Reservation” located in Iowa.

Act of June 30, 1948, ch. 759, 62 Stat. 1161. This statute, known as Public Law

846, provides as follows:

       Jurisdiction is hereby conferred on the State of Iowa over offenses
       committed by or against Indians on the Sac and Fox Indian
       Reservation in that State to the same extent as its courts have
       jurisdiction generally over offenses committed within said State
       outside of any Indian reservation: Provided, however, That nothing
       herein contained shall deprive the courts of the United States of
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       jurisdiction over offenses defined by the laws of the United States
       committed by or against Indians on Indian reservations.

Id. The text of Public Law 846 appears to confer jurisdiction on the State of Iowa

to enforce both minor and major offenses committed by or against Indians on the

Sac and Fox Indian Reservation in accord with state law.           See id.; see also

Lasley, 705 N.W.2d at 487; State v. Bear, 452 N.W.2d 430, 434 (Iowa 1990).

However, relying on California v. Cabazon Band of Mission Indians, 480 U.S. at

202 (1987), the Iowa Supreme Court has held that “[f]or a state law to be

enforceable” under Public Law 846, “such law must be ‘criminal/prohibitory’ and

not ‘civil/regulatory.’” Lasley, 705 N.W.2d at 488. “If the intent of a state law is

generally to prohibit certain conduct, it falls within . . . [the] grant of criminal

jurisdiction, but if the state law generally permits the conduct at issue, subject to

regulation, it must be classified as civil/regulatory and [the grant of authority]

does not authorize its enforcement on an Indian reservation.” Cabazon, 480 U.S.

at 209.

       Young argues that operating a motor vehicle without a license, a simple

misdemeanor, is a civil/regulatory offense and thus not enforceable under Public

Law 846. The State counters that the offense is criminal/prohibitory and thus

enforceable under Public Law 846. While we conclude the State has the better

of the argument, see, e.g., St. Germaine v. Circuit Ct., 938 F.2d 75, 78 (7th Cir.

1991) (holding driver’s license law enforceable in tribal territory and stating “[t]his

enforcement of Wisconsin driver’s license public policy by the imposition of

criminal sanctions does not impinge upon the respected tribal attributes of

sovereignty over both their members and their territory”), we need not address
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this particular argument because Young has not established the offense was

committed on the Sac and Fox Indian Reservation. In the absence of such proof,

the State was free to enforce its criminal law against Young, and the district court

had concomitant subject matter jurisdiction over the criminal proceeding.

       The State has the burden of proving the situs of the offense was within the

State of Iowa, which it did. The offense occurred at or near the intersection of

Highway 30 and F Avenue in Tama County, Iowa. Once the State proved the

offense occurred within the State of Iowa and the district court had subject matter

jurisdiction over the matter, it was the defendant’s burden to establish an

exception to jurisdiction. See Meier v. Sac & Fox Indian Tribe, 476 N.W.2d 61,

62-63 (Iowa 1991) (explaining the district court had subject matter jurisdiction

over civil actions and that sovereign immunity was an exception to jurisdiction);

see also State v. Verdugo, 901 P.2d 1165, 1168 (Ariz. 1995) (holding defendant

bears the burden of establishing Indian status and that the crime occurred in

Indian country to “establish the trial court’s lack of jurisdiction”); State v. Francis,

563 A.2d 249, 252-53 (Vt. 1989) (holding the defendant has the burden of

establishing Indian heritage and the offense occurred within “Indian country”);

Pendleton v. State, 734 P.2d 693, 695 (Nev. 1987) (stating “defendant has the

burden of showing the applicability of negative exceptions in jurisdictional

statutes”); State v. Cutnose, 532 P.2d 896, 898 (N.M. 1974) (holding defendants

bear the burden of proving a lack of state court jurisdiction); State v. Buckaroo

Jack, 96 P. 497, 498 (Nev. 1908) (holding it was not incumbent on the State to

prove anything more than that the offense was committed in the county and
                                         6



defendant had the burden to prove facts depriving the state court of jurisdiction).

Here, there is no evidence establishing the situs of the offense was within the

reservation.

       The Sac and Fox Indian Reservation is also known as the Meskwaki

Settlement. It is a “reservation” for purposes of federal law. See Sac & Fox

Tribe v. Licklider, 576 F.2d 145, 150 (8th Cir. 1978); United States v. Papakee,

485 F. Supp. 2d 1032, 1040 (N.D. Iowa 2007). The postconviction court received

into evidence a document entitled “Sac and Fox Tribe of the Mississippi in Iowa

Long Range Transportation Plan.” The document identifies both Highway 30 and

F Avenue as included within the inventory of “Indian Reservation Roads.” Both

Young and the State seem to assume this establishes the situs of the offense

occurred within the reservation. We disagree.

       First, Young assumes all roads within the Indian Reservation Road

System are within the Meskwaki Settlement. This is not the case. An “Indian

Reservation Road . . . means a public road that is located within or provides

access to an Indian reservation or Indian trust land, or restricted Indian land that

is not subject to fee title alienation without the approval of the Federal

government.”    25 C.F.R. § 170.5.     The federal regulation defining an Indian

Reservation Road thus explicitly provides that an Indian Reservation Road may

be within an Indian reservation or a road not within an Indian reservation but that

provides access to an Indian reservation. Id. We cannot assume the road is

within the reservation.
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         Second, even assuming that the situs of the offense was within the

recognized boundaries of the Meskwaki Settlement, that fact alone would not

necessarily deprive the district court of subject matter jurisdiction over this

offense. It is well established that a state retains jurisdiction over fee lands it

owns within a reservation. See Washington v. Confederated Bands and Tribes

of Yakima Indian Nation, 439 U.S. 463, 475 (1979); State v. Pink, 185 P.3d 634,

638 (Wash. Ct. App. 2008). Here, the offense occurred on a roadway. There is

no evidence establishing title to the roadway. The Long Range Transportation

Plan explicitly provides that the Indian Reservation Road System includes “BIA

[Bureau of Indian Affairs], Tribal, state, and county roads.”       Young did not

establish what entity holds the fee for the roadway on which this offense

occurred. Was the fee held by the federal government, state government, county

government, or the tribe? Was it a right of way easement granted by the tribe to

the State? The answer to each of these questions is material to the jurisdictional

issue.    See Murphy v. State, 124 P.3d 1198, 1201 (Okla. Crim. App. 2005)

(examining title of roadway to determine “Indian country” jurisdiction issue); Pink,

185 P.3d at 638 (concluding where the land granted was a fee simple patent to

build a road as opposed to a right of way easement, then the state has

jurisdiction over the offense but where the only interest granted was a right-of-

way easement, then the tribe has jurisdiction); State v. Webster, 338 N.W.2d

474, 480-81 (Wis. 1983) (examining title to land underlying highway right-of-way

to resolve “Indian country” jurisdictional challenge); Somday v. Rhay, 406 P.2d

931, 934 (Wash. 1965) (holding court had jurisdiction over offense committed
                                         8



upon highway where fee simple was in the state). Again, we cannot assume the

answers to these questions.       Young failed to establish the predicate facts

necessary to divest jurisdiction over this offense from the State of Iowa.

                                        III.

       We have considered all of the parties’ arguments, whether or not set forth

explicitly herein. For the foregoing reasons, the judgment of the district court is

affirmed.

       AFFIRMED.
