                            No.   88-194
                                  88-621
          IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,
          Plaintiff and Respondent,
     -vs-
LELAND NEAL LAPIER,
          Defendant and Appellant,
STATE OF MONTANA, ex rel., LELAND NEAL LAPIER,
          Petitioner,
     -vs-
JACK McCORMICK, WARDEN OF MONTANA STATE PRISON,
          Respondent.



APPEAL FROM:   District Court of the Ninth Judicial District,
               In and for the County of Glacier,
               The Honorable R. D. McPhillips, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Sandra K. Watts, Florence, Arizona
          For Respondent:
               Hon. Marc Racicot, Attorney General, Helena, Montana
               Robert F. W. Smith, Asst. Atty. General, Helena
               James C. Nelson, County attorney, Cut Bank, Montana


                            Submitted on Briefs:      February 1, 1990
                                           Decided:    April 12, 1990
                                           0
Justice Fred J. Weber delivered the Opinion of the Court.

     Mr. LaPier appeals from his criminal convictions in the
District Court of the Ninth Judicial District, Glacier Coun-
ty.   In a jury trial, he was found guilty of aggravated
burglary, aqgravated kidnapping, and felony assault.      Mr.
LaPier was sentenced to thirty years for aggravated burglary,
thirty years for aggravated kidnapping, to be served concur-
rently, and five years for felony assault, to be served
consecutively.   Mr. Lapier appeals the convictions.       TrJ e

affirn.
     The issues are:
     1. Did the District Court err in denyinq the defen-
dant's motion to dismiss the information for lack of
jurisdiction?
     2. Was the defendant denied his right to confront the
witnesses against him?
     3. Did the District Court err in denying the defen-
dant's motion for a continuance of trial?
     4. Is the verdict inconsistent?
     The incident out of which these charges arose occurred
one night in August 1987. At about 10:30 p.m., the victims
Richard Kurek, his ex-wife Angela, and his fiancee Shelley
Boutier were watchinq television in Richard's home. Leland
"Yackie" Thomas visited the house for a few minutes, then
left. Mr. Kurek stated at trial that he didn't really under-
stand why Mr. Thomas was visiting, as none of them knew him
well. Following Mr. Thomas' visit, Richard and Angela Kurek
went upstairs to f: the curtains in the room where Angela
                  i:
was to spend the night. They had been upstairs about five
minutes when the dog began to bark and Shelley began to
scream.
        Mr.     Kurek t e s t i f i e d a t t r i a l t h a t a s h e t u r n e d t o l e a v e
t h e bedroom M r .         L a P i e r came up t h e s t a i r s , e n t e r e d t h e bed-
room,     and a s k e d ,     "Where i s i t ? "            Mr.    Rurek s t a t e d t h a t M r .
L a p i e r t h r e w him on t h e bed and demanded t o know where t h e
$7,000 was.            Richard and Angela Kurek b o t h t e s t i f i e d t h a t M r .
LaPier threatened t o k i l l M r .                Kurek and s t r u c k him w i t h h i s
fists,        then threw M r .       Rurek t o t h e f l o o r and began k i c k i n a
him w i t h h i s heavy l o g g e r b o o t s .            Mr.    Yurek t e s t i f i e d t h a t h e
had n o t known M r .        Lapier p r i o r t o t h i s incident.
        Angela Kurek t e s t i f i e d t h a t a t t h i s p o i n t , s h e t o l d M r .
L a P i e r t h a t s h e had some money i n t h e t r u n k o f h e r c a r parked
outside,        and t h a t M r .    L a P i e r t o l d h e r t o go g e t t h e money.
Angela Kurek t e s t i f i e d t h a t when s h e g o t t o t h e bottom o f t h e
stairs,        s h e saw a man h o l d i n g S h e l l e y B o u t i e r on t h e f l o o r
w i t h h i s knee i n h e r back and a h a n d f u l o f h a i r .
        Angela Kurek s t a t e d t h a t when s h e r e a c h e d h e r c a r ,                 she
n o t i c e d t h a t no one had f o l l o w e d h e r o u t o f t h e house.                   She
got i n t o the car.            A van had been parked t o b l o c k t h e s t r e e t
e n t r a n c e t o t h e cul-de-sac         where t h e house was l o c a t e d .                 By
g o i n g o v e r a n e i g h b o r ' s lawn s h e d r o v e o u t of t h e c u l - d e - s a c
and went t o n o t i f y t h e p o l i c e .
        Mr.     Kurek       testified       that       a     second       individual,        later
i d e n t i f i e d a s Merlyn Thomas,           joined M r .         LaPier i n a s s a u l t i n g
him.      Mr.     Kurek t e s t i f i e d t h a t Merlyn Thomas h i t him i n t h e
head w i t h t h e b l a d e o f a s c r e w d r i v e r ,           and t h a t t h e two men
f o r c e d him      i n t o an a d j o i n i n g bedroom.              He s t a t e d t h a t M r .
L a P i e r c o n t i n u e d t o h i t him w h i l e Merlyn Thomas s t a b b e d him
with t h e screwdriver.                He t e s t i f i e d t h a t M r .      L a P i e r and M r .
Thomas        then     dragged      him    downstairs             and     outside,      stat in^,
" L e t ' s burn him."
        Mr.     Kurek     testified        t h a t he was t h e n            forced i n t o t h e
g a r a g e where M r .       Lapier      said,     "Let's          off   him."       Mr.    Kurek
testified         he    later    was      able    to       get     f r e e and    escape      to    a
neighbor's house.    Mr. Kurek stated that he noticed Angela
Kurek's car and a police car coming up the street. Angela
Kurek testified that as she approached the house she saw two
men run off.   Shelley Boutier came out of a bathroom where
she had been hiding.
     Mr. Lapier, Leland Thomas and Merlyn Thomas were arrest-
ed the next day. Because they are members of the Blackfeet
Tribe, the Thomases were tried in federal court. Mr. T,aPier
was tried in state court.
                              I
     Did the District Court err in denying the defendant's
motion to dismiss the information for lack of jurisdiction?
     Prior to trial, on October 15, 1987, Mr. LaPier moved to
dismiss the information based on lack of jurisdiction. He
contended he was an Indian and that state courts lacked
jurisdiction to prosecute a criminal offense committed by an
Indian within the exterior boundaries of an Indian reserva-
tion. The District Court denied this motion. Mr. LaPier's
direct appeal of the criminal convictions raised the iuris-
dictional issue. Mr. LaPier also presented this Court with a
petition for habeas corpus raising the same issue.         The
direct appeal and petition for habeas corpus were consolidat-
ed and held in abeyance and the District Court was ordered to
hold an evidentiary hearing in regard to Mr. LaPier's status
as an Indian.    Following this hearing, the District Court
entered lengthy findings of fact and conclusions of law,
concluding that Mr. LaPier was not an Indian for purposes o f
criminal offenses and that the state court had jurisdiction
to prosecute.     For appellate review, the parties have
re-briefed the jurisdictional issue subsequent to the
hearing.
     Jurisdiction to prosecute criminal offenses committed on
an Indian reservatj-on is shared by three solrereign entities,
depending on the nature of the crime and whether the defen-
dant and the victim are Indian or non-Indian.       Clinton,
Criminal Jurisdiction over Indian Lands: A Journey Through a
Jurisdictional Maze, 18 Ariz. L.Rev. 503, 504-05, (1976). A
tribal court has jurisdiction if both the defendant and the
victim are Indian and the crime is not one listed in 18
U.S.C. S 1153.   United States v. Antelope (1977), 430 U.S.
641, 97 S.Ct. 1395, 51 L.Ed.2d 701.     Federal courts have
jurisdiction pursuant to several statutes, such as the Major
Crimes Act, 18 U.S.C. S 1153.
     Generally, state courts lack jurisdiction to prosecute
an offense committed within the exterior boundaries of an
Indian reservation where the defendant is an Indian, or where
the victim is an Indian.     State v. Greenwalt   (1983), 204
Mont. 196, 663 P.2d 1178.    The State of Montana does have
jurisdiction to prosecute criminal offenses committed within
the exterior boundaries of the reservation if neither the
defendant nor the victim is Indian.        United States v.
McBratney (1881), 104 U.S. 621, 26 L.Ed. 869; Draper v.
United States (1896), 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed.
419; New York ex re1 Ray v. Martin (1946), 326 U.S. 496, 66
S.Ct. 307, 90 L.Ed. 261; United States v. Wheeler (19781, 435
U.S. 313, 98 S.Ct.   1079, 55 L.Ed.2d 303; Antelope. In the
present case, the    offenses occurred within the exterior
boundaries of the Blackfeet Indian Reservation.  The victim
was non-Indian.    Thus the jurisdictional issue turns on
whether Mr. LaPier is an "Indian" for purposes of criminal
iurisdiction.
     Congress has not defined "Indian" as it is used in the
statutes governing criminal jurisdiction, and no precise
formula exists for determining Indian status. St. Cloud v.
United States (D.S.D.   1988), 702 F.Supp   1456; Clinton, p.
515.   Federal jurisdiction over Indians is premised upon
their special status as wards of the federal government.
State ex rel. Irvine v. District Court (1951), 125 Mont. 398,
404, 239 P.2d 272, 275-76.     If one who is Indian by race
becomes "emancipated in some manner, as, for example, hy
severing tribal relations and taking on civilized habits,"
the status may terminate. People v. Carmen (Cal. 1954), 273
P.2d 521, 525; State v. Attebery (Ariz. 1974), 519 P . 2 d 53,
54-55; Clinton, p. 517.
     The test suggested in United States v. Rogers (1846), 45
U.S.   (4 How.) 567, 11 L . E d .   1105, has been frequently cited
in determining Indian status. This test is two-pronqed: 1)
the defendant must have a significant amount of Indian blood,
and 2) the defendant must have federal or tribal recognition
as an Indian. United States v. Dodge (8th Cir. 1976), 538
F.2d 770, 786, cert. denied, 429 U.S. 1099 (1977). Attebery,
519 P.2d at 54; F. Cohen, Handbook of Federal Indian Law 24
(1982).   The second prong of this test, recognition as an
Indian, has also been stated as "a sufficient non-racial link
to a formerly sovereign people."     St Cloud, 702 F.Supp at
1461. The St. Cloud court elaborated upon the second prong
of the Rogers test, as follows:

       This Court nonetheless has qleaned from case law
       several factors to evaluate whether a person satis-
       fies the second prong of Rogers.       In declining
       order of importance, these factors are: 1) enroll-
       ment in a tribe; 2) government recognition formally
       and informally through providing the person assis-
       tance reserved only to Indians; 3) enjoying bene-
       fits   of  tribal   affiliation; and     4)  social
       recognition as an Indian through living on a reser-
       vation and participatinq in Indian social life.
       These factors do not establish a precise formula
       for determining who is an Indian.      Rather, they
       merely guide the analysis of whether a person is
       recognized as an Tndian.
St. Cloud, 702 F.Supp. at 1461.
     We expressly adopt the foregoing test.
     The evidentiary hearing in the present case was held
March 31, 2989.    Mr. LaPier testified at this hearing in
addition to numerous other witnesses.      The testimony and
exhibits established the following facts relevant to Mr.
Lapier's status. First, Mr. LaPier is not an enrolled member
of any tribe. He possesses 165/512 of Indian blood derived
from the Little Shell Band of Landless Chippewa Indians of
Montana, and the Turtle Mountain Band of Chippewas.       Mr.
LaPier is "affiliated" with these tribes.    The people com-
prising these tribes are referred to as Pembinas. Mr. LaPier
is a Pembina descendant.
     The Little Shel.1 Band of Landless Chippewas is not a
federally recognized tribe; however they have a petition for
federal recognition pending with the Bureau of Indian Af-
fairs.   The Turtle Mountain Band is a federally recognized
tribe. Both tribes have an enrolled membership. Mr. LaPier
is not eligible for membership in the Turtle Mountain Band
and trial testimony was conflicting as to whether he would he
eligible for membership in the Little Shell Band.         Mr.
LaPierls mother is an enrolled member of the Little Shell
Rand of Chippewas. Mr. LaPier1s father is a non-Indian. Mr.
LaPier had not applied for enrollment in either tribe at the
date of the hearing.
     Mr. LaPier was raised in Great Falls and Billings,
Montana, and attended public schools. He spent some summers
in Browning, Montana, on an Indian reservation.       He also
lived in Browning his last year of high school. Mr. LaPier
attended Haskell Junior College in Lawrence, Kansas, which is
an Tndian college sponsored by the Bureau of Indian Affairs
(RIA). Haskell admits persons of one-fourth or more Indian
blood   and the federal government pays the student's
educational expenses.
     Mr. LaPier received some educational benefits from the
Great Falls Native American Center, and on a few occasions he
received medical assistance from the Indian Health Services
at Rocky Boy Reservation.     As a Pembina descendant, Mr.
LaPier received $1700 from a judqment received by the
Pembinas on a claim against the federal government.
     Mr. LaPier has been prosecuted in tribal courts for
criminal offenses, and was also prosecuted as an Indian in
Montana federal court for the offense of theft.
     Mr. LaPier has been employed on an all-Indian fire
fiqhting crew, and has occasionally played basketball on
all-Indian basketball teams.    Socially, Mr. LaPier counts
among his   friends both   Indians and non-Indians.     He has
occasionally attended Browning Indian Days, and has attended
Indian "give aways."
     Applying the Roqers test to the facts of the present-
case, it is apparent that Mr. LaPier has a significant amount
of Indian blood, and the State does not dispute this. Other
courts have found similar percentages of Indian blood to
satisfy the first prong of the Rogers test. - St. Cloud,
                                                Cf,
702 F.Supp. at 1460 (15/32 of Indian blood satisfied require-
ment) ; Goforth v. State (0kla.Crim.A~~. 1982) , 644 P.2d 114,
116 (slightly less than one-quarter Indian blood satisfied
requirement); Makah Indian Tribe v. Clallam County (Wash.
1968), 440 P.2d 442 (one-fourth Indian blood satisfied
requirement).
     In analyzing the second prong of the Rogers test, we
adopt the factors utilized by the St. Cloud court. Applying
these factors to the present case, we note that Mr. LaPier is
not an enrolled member of any tribe and has not applied for
enrollment.    However, the fact that Mr. T,aPier is not
enrolled in any tribe may not be determinative of Indian
status.   Ex. Parte Pero (7th Cir. 1938), 99 F.2d 28, cert.
denied, 306 U.S. 643 (1939); United States v. Broncheau (9th
Cir. 1979), 597 F.2d 1260, cert. denied, 444 U.S. 859 (1979);
United States v. Indian Boy X (9th Cir. 1977), 565 ~ . 2 d585,
cert. denied, 439 U.S. 841 (1978), United States v. Ives (9th
Cir. 1974), 504 F.2d 935, vacated on other grounds, 421 U.S.
944 (1975). Mr. LaPier's lack of enrollment is, however, a
significant factor which must be considered.
     Of the two tribes with which Mr. LaPier is affiliated,
he is not eligible for enrollment in the tribe which is
federally recognized, the Turtle Mountain tribe. Mr. LaPier
is possibly eligible for enrollment in the Landless Chippewa
tribe; however, this tribe is not federally recognized.
Thus, Mr. LaPier has no federal recognition as an Indian and
no trust relationship with the federal government.
     We note that Mr. LaPier has received some government
assistance as an Indian. He attended a BIA-sponsored col-
lege, and received some educational assistance through the
Native American program in the Great Falls Public Schools.
He has also received some health benefits through Indian
health services, although these services were not reserved
solely for Indians.     The money judgment received by Mr.
LaPier from the federal government was simply a result of his
Pembina descendancy and adds nothing to our analysis. Nei-
ther is it significant to the present issue that Mr. LaPier
was treated as an Indian in federal court.
     Mr. LaPier spent a few summers and his last year of high
school on the Blackfeet Reservation, however, he has lived
most of his life off the reservation. Although Mr. LaPier
has on a few occasions attended tribal events, and was part
of an all-Indian fire crew and basketball team, these activi-
ties alone do not clothe Mr. Lapier with Indian status. The
evidence demonstrates that Mr. LaPier's tribal affiliation
and social recognition as an Indian is tenuous at best.
Overall, the record reveals an integration into non-Indian
society, and an absence of cultural identity as an Indian.
Mr. LaPier has failed to demonstrate a sufficient non-racial
link identifying him as an Indian.        Using the St. Cloud
factors to guide our analysis, we conclude that the second
prong of the -Rogers test has not been met.
      Mr. LaPier relies on St. Cloud to support his claim that
he is an Indian under the second prong of the Rogers test.
In St. Cloud the defendant was indicted in federal court on
counts of rape and sodomy.      St. Cloud contended that the
federal court lacked jurisdiction to prosecute him, urqinq.
that he was not an Indian. St. Cloud was virtually a full-
blooded Native American, enrolled in the Ponca tribe. He was
recognized as an Indian, lived as an Indian, and was not
integrated into non-Indian society. He had participated in
tribal alcohol treatment and counseling programs and had
occasionally benefited from Indian health care. Considering
just these factors, the court concluded that under the Rogers
test, St. Cloud was an Indian.         The court stated that
" Cglenerally, an ethnic Indian with ties to a tribe like St.
Cloud comes within the group of individuals to whom the
Government bears a special fiduciary responsibility."
St. Cloud, 702 F.Supp. at 1462.     The court ultimately held
however, that St. Cloud was subject to state jurisdiction,
stating:

     However, because St. Cloud was an enrolled member
     of the Ponca tribe at termination, the Ponca termi-
     nation statute ended the federal trust relationship
     with St. Cloud and explicitly exposed St. Cloud to
     state l a w as is any other state citizen.
St. Cloud, 702 F.Supp. at 1 4 6 6 .
     Mr. LaPier contends that the facts in St. Cloud, which
attributed Indian status to that defendant, are analogous to
the facts in the present case. Mr. LaPier misunderstands the
cultural identity requirement.      The St. Cloud court deter-
mined that the defendant in that case had achi-eved social
recognition as an Indian, stating:

          St. Cloud is socially recognized as an Indian.
     He lives on the Lower Brule 1ndian Reservation in
     federally provided housing, is a member of the
     Indian community, and participates in Indian social
     life. St. Cloud identifies himself as an Indian,
     and is not at all integrated into non-Indian
     society.
St. Cloud, 702 F.Supp. at 1 4 6 2 . The present case is easily
distinguishable since the facts of St. Cloud indicating
Indian status are lacking in the present case.
     We hold that Mr. LaPier is not an Indian for purposes of
criminal jurisdiction. We affirm the District Court's denial
of the motion to dismiss based on lack of jurisdiction.
                             I1
      Was defendant denied his right to confront the witnesses
against him?
      Mr. LaPier presents two bases for his asserted denial of
the right of confrontation. First, he contends the informa-
tion filed against him was based on information given by
Leland Thomas, whom he was unable to confront as a witness.
The affidavit filed by the county attorney in support of a
motion for leave to file an information contained a lengthy
statement of allegations, over four pages in length.        TP
these allegations the county attorney referred to a statement
made by Leland Thomas. Both Leland Thomas and Nerlyn Thomas
were charged in federal court for their alleged involvement
j n the assault on Richard Kurek. At Mr. TJaPierlstrial Mr.
Leland Thomas and Mr. Merlyn Thomas invoked their Fifth
Amendment right against self-incrimination.
     Mr. LaPier relies on Pointer ~ 7 . Texas (1965), 380 U.S.
400, 85 S.Ct. 1065, 13 L.Ed.2d 923, as authority that he was
denied a right of confrontation. In Pointer a witness testi-
fied at a preliminary hearing but was not cross-examined.
The witness was unavailable at trial and the transcript of
the preliminary hearing was introduced as evidence.         On
appeal, the United States Supreme Court held that this was a
denial of the right of confrontation. Pointer is not analo-
gous to the present case. The affidavit in support of the
motion to file an information was not used as part of the
evidence to convict Mr. LaPier, and presents no basis for his
asserted denial of the right of confrontation.
     As a second hasis for his asserted denial of the right.
of confrontation, Mr. LaPier contends that the two Thomas
brothers should have been compelled to testify at his trial.
The record, however, fails to demonstrate that Mr. LaPier
raised this issue at District Court. We will not address on
appeal an issue not raised at District Court. State v. Howie
(1987), 228 Mont. 497, 500, 744 P.2d 156, 158. Mr. LaPier
has presented no basis for his asserted denial of the right
of confrontation. We conclude he was not denied this consti-
tutional right.

     Did the District Court err in denying the defendant's
motion for a continuance of trial?
     Trial in this case was set for October 26, 1987. Five
days before trial Mr. LaPier moved for a continuance. The
motion was denied; however, the District Court appointed
co-counsel to assist with the trial.     Mr. LaPier contends
this denial prejudiced him in presenting his defense.
     The   District   Court may   order   a   continuance if   the
interests of justice so require; however, a motion of this
type is addressed to the discretion of the trial court taking
into consideration the diligence of the movant.       Section
46-13-202, MCA; Sloan v. State (Mont. 1989), 768 P.2d 1365,
1369, 46 St.Rep. 214, 218. On appeal this Court determines
if the district court abused its discretion in denying the
continuance. State v. Walker (1987), 325 Mont. 415, 419, 733
P.2d 352, 355.
     Mr. LaPier contends the continuance should have been
granted to allow his special investigator more time to inves-
tigate.   Mr. LaPier also contends that had his trial been
postponed, the Thomas brothers would have concluded their
cases in federal court and could have been subpoenaed to
testify without the problem of self-incrimination.        Mr.
LaPier did not present this latter contention to the District
Court in his motion for a continuance. On appeal, Mr. Lapier
may not change the basis of his motion.      State v. Sunday
 (1980), 187 Mont. 292, 302, 609 P.2d 1188, 1195. We there-
fore will not address his contention in regard to the Thomas
brothers.
      The State opposed the continuance, noting that the
request was not timely; that Mr. LaPier had possessed nearly
all relevant discovery since September Ist, 1987; that Mr.
LaPier had not been diligent in trial preparation; and that a
postponement would inconvenience many witnesses. Mr. LaPier
has failed to present facts to this Court demonstrating any
prejudice which would deny him a fair trial.     We conclude
that the District Court did not abuse its discretion in
denying the motion.   We affirm the District Court's denial of
the motion for a continuance.
     Is the verdict inconsistent?
     The jury returned a verdict finding Mr. LaPier guilty of
aggravated burglary, aggravated kidnapping, and felony as-
sault. To the charges of robbery and theft, the jury found
Mr. LaPier not guilty.
     Mr. LaPier contends that it was inconsistent for the
jury to find him not guilty of robbery, yet guilty of aggra-
vated burglary and guilty of aggravated kidnapping.         He
refers to Jury Instruction No. 16, which instructed the jury
that in order to convict Mr. LaPier of aggravated burglary,
it must find that Mr. LaPier entered the victim's residence
with the purpose to commit robbery, and that in the course of
committinq the robbery he knowingly or purposely inflicted
bodily injury upon Richard Kurek.      He also refers to Jury
Instruction No. 21, which instructed the jury that in order
to find Mr. LaPier guilty of aggravated kidnapping, it must
find that Mr. LaPier restrained the victim with the purpose
to commit robbery. Mr. LaPier contends that since the jury
found him not guilty of robbery, it could not consistently
find him guilty of aggravated burglary and aggravated
kidnapping.
     The jury instructions enumerated the statutory require-
ments for the offense of aggravated kidnapping pursuant to s
45-5-303(1) (b), MCA, and for the offense of aggravated bur-
glary, pursuant to (5 45-6-204 (2)(b), MCA.    Mr. LaPier does
not contend that the jury was incorrectly instructed. The
Jury Instructions Nos. 16 and 21 contained the statutory
requirement that Mr. LaPier have a purpose to commit a cer-
tain offense, in this case, robbery. Under these instruc-
tions the jury was only required to find the defendant had
the purpose to commit a robbery, but was not required to find
a robbery was committed. While Instruction No. 16 required
the jury to f i n d that in the course of committing a robbery
defendant   inflicted    bodily   injury   upon   the   victim,   this
instruction does not necessitate a jury finding that defen-
dant completed the robbery. We conclude that the verdict is
not inconsistent and that there is no merit to Mr. LaPier's
contention.
     Affirmed.




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  f     Justices
