              IN THE SUPREME COURT OF IOWA
                              No. 19–0177

                       Filed September 13, 2019


STATE OF IOWA,

      Appellant,

vs.

JESSICA RAE STANTON,

      Appellee.



      Appeal from the Iowa District Court for Tama County, Richard

Vander Mey, Magistrate.



      The State appeals dismissal of misdemeanor charges based upon

magistrate’s interpretation of federal law governing jurisdiction over

crimes committed on the Meskwaki Settlement.          REVERSED AND

REMANDED.



      Thomas J. Miller, Attorney General, Aaron Rogers, Assistant
Attorney General, and Brent D. Heeren, County Attorney, for appellant.



      John G. Daufeldt of Daufeldt Law Firm, Conroy, for appellee.



      Peter E. Deegan Jr., United States Attorney, Lisa C. Williams,

Assistant United States Attorney, and Ann O’Connell Adams, Attorney,

U.S. Department of Justice, for amicus curiae United States.
                                  2

      Joshua A. Canterbury, Assistant Attorney General, and Christopher

M. Nydle, Lead Prosecutor, for amicus curiae Sac & Fox Tribe of the

Mississippi in Iowa.
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APPEL, Justice.

      In this case, an officer of the Meskwaki Nation Police Department

filed two cases in Iowa District Court for Tama County alleging that Jessica

Rae Stanton committed the misdemeanor crimes of trespass, possession

of drug paraphernalia, and violation of a no-contact order while on the

Meskwaki Settlement.

      Upon review of the complaints, a magistrate concluded that recent

federal legislation removed state jurisdiction for crimes committed on the

Settlement.   As a result, the magistrate dismissed the three pending

misdemeanor charges and assessed costs against the Meskwaki Nation.

The magistrate further advised that the Tama County Sheriff should

consult with the county attorney to determine whether prisoners such as

the defendant should even be received and retained in custody by the

Tama County Sheriff. The district court further stated that tribal police

officers should be instructed by tribal judicial officers to cease and desist

from charging persons with violations of the Iowa Code as such charges

“will only serve to clog state courts and result in the imposition of court

costs upon the Meskwaki Tribe for cases which must be dismissed.”

      We granted the State’s application for discretionary review and

expedited consideration of the matter in light of the importance of the

issues pending in the case. For the reasons expressed below, we reverse

the dismissal of the charges, vacate the remaining portions of the order of

the district court, and remand the case to the district court.

      I. Background Facts and Proceedings.

      On January 1, 2019, the Meskwaki police filed complaints alleging

that Stanton committed the crime of trespass in violation of Iowa Code

section 716.8(1) (2018), possession of drug paraphernalia in violation of

Iowa Code section 124.414(2), and violation of a no-contact order in
                                     4

violation of Iowa Code section 664A.7.       In all three complaints, the

defendant’s race, gender, height, and weight were identified.

      The complaint alleging possession of drug paraphernalia stated that

“Jessica had a glass pipe that was clear/white in color. [T]he glass pipe

had drug residue in it.” The location of the offense was listed as 1504

305th Street in Tama, Iowa.

      The complaint alleging violation of a no-contact order stated that

“Jessica and the protected party Joshua arrived at the casino together.

They drove to the casino together.” As with the complaint for possession

of drug paraphernalia, the location of the offense was listed as 1504 305th

Street in Tama, Iowa.

      The complaint for trespass simply stated that the violation is

“Trespass lst offense.”   The complaint does not provide further details

about the alleged offense. For example, it does not state the owner of the

allegedly trespassed property or its location.

      The magistrate signed an order sua sponte on the same day the

charges were filed. The order was filed the following day. The magistrate

noted that the defendant was in custody and the complaints were issued

by a Meskwaki police officer “for conduct which allegedly took place on the

Meskwaki Settlement.”       The magistrate also stated that “[f]ederal

legislation was recently enacted which removed state jurisdiction for

crimes committed on the Settlement.” As a result, the magistrate reasoned

that lack of state jurisdiction “prohibits tribal police officers, as well as

Iowa peace officers, from initiating state criminal charges for conduct on

the Settlement regardless of the race or ethnic background of any potential

Defendant.” Additionally, the magistrate declared that “[a]ny charges for

conduct upon the Meskwaki Settlement can be pursued in tribal court or

federal court.” On this reasoning, the magistrate dismissed the charges.
                                     5

      The magistrate further stated that “[t]he Tama County Sheriff should

consult with the County Attorney to determine whether prisoners such as

this Defendant should even be received and retained in custody by the

Tama County Sheriff.” Further, the magistrate stated,

      Tribal police officers should be instructed by tribal judicial
      officers to cease and desist from charging persons with
      violations of the Code of Iowa for the reasons that it will only
      serve to clog state courts and result in the imposition of court
      costs upon the Meskwaki Tribe for cases which must be
      dismissed.

The magistrate imposed court costs against the Meskwaki Nation.

      The State sought discretionary review of the magistrate’s order. We

granted discretionary review. We granted the United States and the Sac

and Fox Tribe of the Mississippi in Iowa permission to file amici briefs in

support of the State of Iowa. Counsel was appointed to represent Stanton.

For the reasons expressed below, we reverse the dismissal of the charges,

vacate the order, and remand the cases for further proceedings.

      II. Standard of Review.

      We review lower court rulings on questions of subject matter

jurisdiction for correction of errors at law. State v. Lasley, 705 N.W.2d

481, 485 (Iowa 2005). To the extent resolution of the jurisdictional issue

requires statutory interpretation, our review is also at law. Id.

      III. Discussion.

      A. Introduction. The magistrate dismissed this case based on a

broad legal proposition, namely, that Iowa courts lack jurisdiction over

crimes committed on the Meskwaki Settlement “regardless of the race or

ethnic background of any potential Defendant.”           Thus, under the

magistrate’s order, the state courts lack jurisdiction over all crimes

committed on the Meskwaki Settlement, including crimes by non-Indian
                                             6

defendants that were either victimless or where the victims were non-

Indians. 1

       B. Challenge to Discretionary Appeal Based upon Bypass of

Appeal of Magistrate’s Order to the District Court. Stanton asserts

that, because the State failed to file a notice of appeal to the district court

pursuant to Iowa Rule of Criminal Procedure 2.73, “[e]rror was not

preserved.” In support of her argument, Stanton claims “a party cannot

‘by-pass’ the appeal process in simple misdemeanor cases by failing to

seek appellate review via the district court.”              She cites Vance v. Iowa

District Court, 907 N.W.2d 473, 479 (Iowa 2018), and In re M.W., 894

N.W.2d 526, 532 (Iowa 2017).

       The State disagrees. The State points out that under Iowa Rule of

Criminal Procedure 2.73(1), a simple misdemeanor appeal may be taken

by the State only when an ordinance or statute is found invalid. The State

reasons it may seek discretionary review of a magistrate’s dismissal of a

simple misdemeanor, which amounts to a final order, without an

unauthorized appeal of the magistrate’s order to the district court.

       We agree with the State. Discretionary review is available in an

underlying case resulting in “[a] final judgment or order raising a question

of law important to the judiciary and the profession.”                        Iowa Code

§ 814.5(2)(d); see Lasley, 705 N.W.2d at 485.                  Because Iowa Rule of

Criminal Procedure 2.73(1) limits the State to appeals in simple

misdemeanor cases in which a statute or ordinance is found invalid, the


       1As   has been previously observed in law, “Criminal jurisdiction . . . in ‘Indian
country’ ‘is governed by a complex patchwork of federal, state, and tribal law.’ ” Negonsott
v. Samuels, 507 U.S. 99, 102, 113 S. Ct. 1119, 1121 (1993) (citation omitted) (quoting
Duro v. Reina, 495 U.S. 676, 680 n.1, 110 S. Ct. 2053, 2057 n.1 (1990)). As such, the
court uses terms such as “Indian country,” and demarcations such as “Indian” and “non-
Indian” only for purposes of consistency with the existing legal framework and
nomenclature.
                                       7

State could not appeal the magistrate’s order in this case to the district

court.     Additionally, the magistrate’s dismissal of the case without

declaring a statute or ordinance invalid is a final order. Further, it would

be odd to require the State to pursue an unavailable remedy before seeking

discretionary review. We find that this court had jurisdiction to grant

discretionary review in this simple misdemeanor matter without the State

seeking an unavailable appeal before the district court.

         C. Discussion of the Merits of Sua Sponte Dismissal of Simple

Misdemeanor Charges Occurring on the Meskwaki Settlement for

Lack of Subject Matter Jurisdiction.

         1. Relevant statutory history. In 1896, the State of Iowa tendered to

the federal government lands in Tama County which were previously held

in trust for the benefit of the Sac and Fox Indians. 1896 Iowa Acts ch. 110.

The Meskwaki Settlement in Tama County is now held in trust by the

federal government for the benefit of the federally recognized tribe. See

Sac & Fox Tribe of Miss. in Iowa v. Licklider, 576 F.2d 145, 147–48 (8th

Cir. 1978). As a result, the Meskwaki Settlement is “Indian country” under

applicable United States Supreme Court precedent. Okla. Tax Comm’n v.

Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 511, 111

S. Ct. 905, 910 (1991); see State v. Youngbear, 229 N.W.2d 728, 732 (Iowa

1975), abrogated on other grounds by State v. Bear, 452 N.W.2d 430, 432–

33 (Iowa 1990). The question in this case is whether the Iowa district court

has jurisdiction over the state misdemeanor crimes that allegedly occurred

in “Indian country.”

         The tender of the Tama County land by Iowa to the federal

government specifically noted that nothing in the act

         shall be so construed as to . . . prevent [Iowa] courts from
         exercising jurisdiction of crimes against the laws of Iowa
                                    8
      committed thereon either by said Indians or others, or of such
      crimes committed by said Indians in any part of this state.

1896 Iowa Acts ch. 110, § 3. Clearly, the provisions in the 1896 Act did

not limit the criminal jurisdiction of state courts.     And the federal

government accepted all limitations on the transfer. Licklider, 576 F.2d at

147–49.

      As pointed out by the United States and by the Sac and Fox Tribe

as amici, whether a court has criminal jurisdiction over offenses

committed in “Indian country” “is governed by a complex patchwork of
federal, state, and tribal law” that often depends upon whether the

defendant or the victim is an Indian. Negonsott v. Samuels, 507 U.S. 99,

102, 113 S. Ct. 1119, 1121 (1993) (quoting Duro v. Reina, 495 U.S. 676,

680 n.1, 110 S. Ct. 2053, 2057 n.1 (1990), superseded by statute on other

grounds, Department of Defense Appropriations Act of 1990, Pub. L.

No. 101-511, 104 Stat. 1856, as recognized in Lower Brule Sioux Tribe v.

South Dakota, 917 F. Supp. 1434, 1444 n.8 (D.S.D. 1996)). Prior to 1948,

the precedents of the United States Supreme Court consistently held that

state courts have jurisdiction over “Indian country” crimes involving non-

Indians unless there is a treaty provision or clause in a state’s enabling

act prohibiting such jurisdiction. New York ex rel. Ray v. Martin, 326 U.S.

496, 499–500, 66 S. Ct. 307, 308–09 (1946); Draper v. United States, 164

U.S. 240, 242–43, 17 S. Ct. 107, 108 (1896); United States v. McBratney,

104 U.S. 621, 622–24 (1881). Further, many other cases stand for the

proposition that states have criminal jurisdiction over criminal acts by

non-Indians in “Indian country” that are not committed against Indians.

See, e.g., Hilderbrand v. United States, 261 F.2d 354, 356 (9th Cir. 1958);

Lasley, 705 N.W.2d at 490; State v. Kurtz, 249 P.3d 1271, 1276 n.5 (Or.

2011); State v. Reber, 171 P.3d 406, 408 (Utah 2007).
                                     9

      In 1948, however, Congress expanded jurisdiction of state courts

over crimes committed on the Meskwaki Settlement. Congress conferred

state court jurisdiction

      over offenses committed by or against Indians on the Sac and
      Fox Indian Reservation in [Iowa] to the same extent as its
      courts have jurisdiction generally over offenses committed
      within said State outside of any Indian Reservation[.]

Act of June 30, 1948, ch. 759, 62 Stat. 1161 (1948). Thus, after 1948,

Iowa district courts had preexisting jurisdiction over crimes committed on

the Meskwaki Settlement involving non-Indians and, in addition, over
offenses committed by or against Indians.

      In 2018, Congress reversed course and repealed the 1948 Act. The

2018 Act in full provides,

      Be it enacted by the Senate and House of Representatives of
      the United States of America in Congress assembled, That the
      Act of June 30, 1948, entitled “An Act to confer jurisdiction
      on the State of Iowa over offenses committed by or against
      Indians on the Sac and Fox Indian Reservation” (62 Stat.
      1161, chapter 759) is repealed.

Act of Dec. 11, 2018, Pub. L. No. 115-301, 132 Stat. 4395 (2018).

      The impact of the 2018 Act is clear. It simply repealed the 1948

expansion of state court jurisdiction. The 2018 legislation left undisturbed

state court criminal jurisdiction involving criminal acts involving non-

Indians existing prior to the passage of the 1948 Act. And the law prior to

the enactment of the 1948 Act provided state court jurisdiction over crimes

committed in “Indian country” involving non-Indians.             See, e.g.,

McBratney, 104 U.S. at 623–24.

      As a result, the magistrate’s observation that “[a]ny charges for

conduct upon the Meskwaki Settlement can be pursued in tribal court or

federal court” is incorrect.   If we adopted Stanton’s position, no entity

would have subject matter jurisdiction in situations in which a non-Indian
                                     10

offender commits a crime in “Indian country” that is either victimless or

against non-Indian victims. As trenchantly noted in State v. Vandermay,

478 N.W.2d 289, 291 (S.D. 1991) (Henderson, J., concurring), “If tribal

courts have no jurisdiction over non-Indians, if state courts do not, who

does? No one, I reckon, and that would be sheer chaos.” In addition to

the language of applicable statutes, the potential creation of a law

enforcement vacuum gives us further reason to reject Stanton’s position.

      2. Application of established law to charges in this case. In this case,

the three charges were filed through complaints of the Meskwaki Nation

Police Department. The defendant identified in each complaint is Stanton.

It is not clear from any of the complaints whether Stanton is a non-Indian.

The complaint for violation of a no-contact order lists Joshua as the person

protected by the order but does not state whether Joshua is a non-Indian.

The trespass complaint does not specifically list the location of the

trespass or the property owner of the property subject to the alleged

trespass. On appeal, Stanton concedes that the alleged crimes occurred

in “Indian [c]ountry.”

      The magistrate, however, did not find it necessary to inquire further

into the facts but simply dismissed the charges with the sweeping

assertion that Iowa courts have no jurisdiction over any criminal activity

on the Meskwaki Settlement. This proposition is clearly incorrect. The

courts of Iowa continue to have jurisdiction over criminal matters arising

on the Meskwaki Settlement when the defendant is non-Indian and when

the victim or victims are also non-Indians (or when the crimes are

victimless.).

      Stanton argues that the State of Iowa does not have criminal

jurisdiction over any crimes that occur on the Meskwaki Settlement

because it has not enacted implementing legislation specifically asserting
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such jurisdiction. She suggests that a 1905 report to the Governor by the

attorney general indicates that the state’s “reserved jurisdiction” over

criminal matters in “Indian country” had never been exercised in stating

that “[t]his has never been carried out.” Opinion from Chas. W. Mullen,

Attorney General of Iowa to Hon. Albert B. Cummins, Governor of Iowa

regarding Sac and Fox Indians—Title to Land Held by Them—History of

(Aug. 9, 1905), in Fifth Biennial Report of the Attorney General of the State

of Iowa, at 263–67 (B. Murphy, printer 1906). The 1905 report, however,

is not a legal opinion. Further, the reference to “[t]his has never been

carried out” in the document is ambiguous and is located closer to

language describing the transfer of trusteeship and legal title and to the

control of the Department of Interior over Indian lands than to a more

distant reference to jurisdiction over crimes against Iowa laws on

Meskwaki lands.      In any event, there is generally no requirement of

implementing legislation to trigger state court criminal jurisdiction over

crimes committed at any particular geographic location within the state of

Iowa.     Nothing in the 1896 Act tendering the land to the federal

government requires some kind of additional legislative action to the

exercise of the reserved criminal jurisdiction over crimes committed in

“Indian country.” See 1896 Iowa Acts, ch. 110, § 3. We decline to require

further specific legislative action for the State to assert jurisdiction

involving crimes committed on tribal lands by non-Indians involving either

victimless crimes or non-Indian victims.

        Stanton further suggests that Iowa Code section 1.15A supports her

argument that the Iowa courts have no criminal jurisdiction over crimes

committed on the Meskwaki Settlement. Iowa Code section 1.15A tenders

to the United States “any and all criminal jurisdiction . . . over criminal

offenses committed by or against Indians” on the Meskwaki Settlement.
                                     12

This statutory provision relates solely to crimes “by or against Indians,”

and not to crimes by non-Indians or to crimes that are victimless or have

a non-Indian victim.

      In light of the above, we reverse the dismissal of the three complaints

and the order imposing costs against the tribe and remand the matter to

the district court for further proceedings. We also vacate the order to the

extent it directs the Tama County Sheriff to consult with the county

attorney and states that tribal police should be instructed to cease and

desist from charging persons with violations of the Iowa Code.

      We do not address a number of issues that are not ripe for

adjudication given the limited record and the nature of the magistrate’s

sua sponte dismissal of this case. We do not address whether, in fact,

Stanton is an Indian or non-Indian. There was no hearing below on this

or any other issue. This potential factual issue was not considered or

relied upon by the district court and it is not properly before this court in

this discretionary appeal.

      We also do not address whether any of the crimes should be

considered “victimless.” See generally Solem v. Bartlett, 465 U.S. 463, 465

n.2, 104 S. Ct. 1161, 1163 n.2 (1984) (noting that states have jurisdiction

over victimless offenses by non-Indians); People v. Collins, 826 N.W.2d

175, 180 (Mich. Ct. App. 2012) (suggesting that there is no federal

jurisdiction for victimless crimes on Indian country committed by a non-

Indian); Vandermay, 478 N.W.2d at 290–91 (majority opinion) (noting that

the state has jurisdiction over victimless crimes committed by non-

Indians). We do not determine whether there is a victim for the trespass

alleged in the complaint, the identity of such a victim, or whether the

identity of a victim prevents the exercise of jurisdiction over the crime in

Iowa district court. We do not determine whether there is a victim for
                                     13

violation of a no-contact order, or whether any such victim is an Indian or

a non-Indian. All these questions, and any others that may arise, are left

for further proceedings on remand.

      IV. Conclusion.

      For the above reasons, the magistrate’s order dismissing the

complaints and imposing costs on the Meskwaki Nation are reversed. To

the extent the order provides instructions to the Tama County Sheriff, the

Tama County Attorney, and the tribal officers, the order is vacated. The

matter is remanded to the district court for further proceedings.

      REVERSED AND REMANDED.
