FILED

United States Court of Appeals

Tenth Circuit

PUBLISH

April 11, 2011

UNITED STATES COURT OF APPEALS

Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

PlaintiffAppellee,
No. 10-6070

v.
ROBERT M. LANGFORD,
DefendantAppellant.

Appeal from the United States District Court

for the Western District of Oklahoma
(D.C. No. 5:09-CR-00327-M-1)

Howard A. Pincus (Raymond P. Moore, Federal Public Defender with him on the briefs),
Office of the Federal Public Defender, Denver, Colorado for the DefendantAppellant.
Linda A. Epperley (Sheldon J. Sperling, U.S. Attorney with her on the briefs), Office of
the United States Attorney, Muskogee, Oklahoma for the PlaintiffAppellee.

Before KELLY, HOLLOWAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Robert Langford appeals his conviction for being a spectator at a cockfight under
18 U.S.C. 13, 1151, and 1152, applying Okla. Stat. tit. 21, 1692.6. We conclude that

federal courts do not have authority over victimless crimes committed by non-Indians in
Indian country. Reviewing the district courts determination under 28 U.S.C. 1291, we
vacate Langfords conviction and remand for the criminal information to be dismissed
with prejudice.
I
On July 22, 2006, approximately sixty law enforcement officers from the Federal
Bureau of Investigation, Bureau of Indian Affairs, Immigration and Customs
Enforcement, United States Department of Agriculture, and Oklahoma Highway Patrol
raided the T.F.C. cockfighting facility in rural Oklahoma. The cockfighting facility was
located on property held in trust by the United States for a Kiowa allottee, and is
therefore in Indian country. See 18 U.S.C. 1151(c). Of the approximately seventy
people cited during the raid, between five and seven were Indian. Everyone else,
including Langford, were non-Indian.
Langford was charged in federal court under the Assimilative Crimes Act, 18
U.S.C. 13, as applied through the Indian Country Crimes Act, 1152 (ICCA or
1152). The state offense assimilated into federal law criminalizes being a spectator at
a place where a cockfight is occurring. Okla. Stat. tit. 21, 1692.6.
No allegation regarding Langfords Indian status was made in the information, nor
was there any proof at trial that Langford was Indian. The only testimony on the matter
at trial indicated Langford is non-Indian.
Following a trial before a magistrate judge, a jury convicted Langford, and his
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conviction was affirmed by the district court. He timely appealed.

II
[T]he Indian/non-Indian statuses of the victim and the defendant are essential
elements of any crime charged under 18 U.S.C. 1152. United States v. Prentiss, 256
F.3d 971, 980 (10th Cir. 2001) (en banc) overruled in part on other grounds as recognized
by United States v. Sinks, 473 F.3d 1315, 1321 (10th Cir. 2007). The failure of an
indictment to allege this essential element, when raised for the first time on appeal, is
reviewed for plain error. Sinks, 473 F.3d at 1321. To show plain error, a defendant must
demonstrate: (1) an error, (2) that is plain, (3) that affects substantial rights, and (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
(quotation and alteration omitted).
In this case, the distinction between plain error review and de novo review is
academic because the government did not merely fail to allege Langfords Indian status
as an element of the crime. Rather, it failed to produce any evidence whatsoever of
Langfords Indian status. As in cases challenging the sufficiency of the evidence, a
conviction in the absence of any allegation or any evidence of an essential element,
is plainly an error, clearly prejudiced the defendant, and almost always
creates manifest injustice. Therefore, plain error review and de novo
review are functionally equivalent so long as the fourth prong of plain error
reviewthat the error seriously affects the fairness, integrity, or public
reputation of judicial proceedingsis also met.
United States v. Kaufman, 546 F.3d 1242, 1247 (10th Cir. 2008).

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III
A
The Assimilative Crimes Act provides that:
Whoever within or upon any of the places now existing or hereafter
reserved or acquired as provided in section 7 of this title, [which defines the
territorial jurisdiction of the United States,] or on, above, or below any
portion of the territorial sea of the United States not within the jurisdiction
of any State, Commonwealth, territory, possession, or district is guilty of
any act or omission which, although not made punishable by any enactment
of Congress, would be punishable if committed or omitted within the
jurisdiction of the State, Territory, Possession, or District in which such
place is situated, by the laws thereof in force at the time of such act or
omission, shall be guilty of a like offense and subject to a like punishment.
18 U.S. C. 13(a). The ICCA provides in relevant part that [e]xcept 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. 18 U.S.C.
1152. Thus, in conjunction, these statutes: (1) assimilate state criminal law into federal
law with respect to acts committed in territories of federal jurisdiction; and (2) apply
these assimilated state crimes to acts committed in Indian country.
The assimilated state crime in this case is being knowingly present as a spectator
at any place, building, or other site where preparations are being made for a cockfight
with the intent to be present at such preparation or cockfight, or [being] knowingly
present at such cockfight. Okla. Stat. tit. 21, 1692.6.

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B
There is no dispute that the conduct at issue in this case, watching a cockfight,
occurred in Indian country. Nor is there any dispute that Langford is a non-Indian. The
only issue is whether there is federal jurisdiction1 for a victimless crime, perpetrated by a
non-Indian in Indian country. This is a question of first impression, but the answer is
clear. There is no jurisdiction. The states possess exclusive criminal jurisdiction over
crimes occurring in Indian country if there is neither an Indian victim, nor an Indian
perpetrator.
Our conclusion flows ineluctably from Supreme Court precedent. Despite the
plain language of 18 U.S.C. 1152 and its predecessor statutes, the Court has
consistently and clearly held that federal jurisdiction over crimes in Indian country is
contingent upon the existence of either an Indian victim or perpetrator. This rule was
first articulated in United States v. McBratney, 104 U.S. 621 (1881). In McBratney, the
Supreme Court considered whether federal courts had jurisdiction to punish a homicide
of one white man by another on the Ute reservation in Colorado. Id. at 621.
Notwithstanding the seemingly contrary plain language of two statutes which appears to
compel the opposite result, the Court held that Colorado possessed exclusive jurisdiction
over the crime. Id. at 623-24. The first statute granted federal jurisdiction over murder
1

When we speak of jurisdiction, we mean sovereign authority, not subject matter

jurisdiction. Cf. Prentiss, 206 F. 3d at 982 (disclaiming the application of subject matter
jurisdiction analysis to cases involving an inquiry under the ICCA). This is consistent
with use of the term in United States v. McBratney, 104 U.S. 621, 623-4 (1881).
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committed within the exclusive jurisdiction of the United States. Id. at 621. The second
statute, 18 U.S.C. 2145, a predecessor to the ICCA, provided that general laws of the
United States as to the punishment of crimes committed in any place within the sole and
exclusive jurisdiction of the United States, except the District of Columbia, shall extend
to Indian country. McBratney, 104 U.S. at 621-622.
In order to get past these statutes, the Court created an exception premised upon
the sovereign equality of the individual states. It reasoned that Colorado entered into the
United States upon an equal footing with the original States in all respects whatsoever
. . . [and consequently] has acquired criminal jurisdiction over its own citizens and other
white persons throughout the whole of the territory within its limits. Id. at 624. Absent
a specific treaty provision between the Utes and the United States stipulating for the
punishment of offences committed by white men against white men the federal courts
lacked jurisdiction to punish such crimes within the reservation. Id.
The Supreme Court has consistently reaffirmed the equal footing holding of
McBratney. It first did so in United States v. Draper, 164 U.S. 240, 242 (1896).
Montanas enabling act stated that Indian lands shall remain under the absolute and
exclusive jurisdiction and control of the [C]ongress of the United States. Id. at 244.
Despite this language, the Court held that Montana had exclusive jurisdiction over the
murder of a non-Indian by a non-Indian on the Crow reservation. Id. at 247.
In People v. Martin, 326 U.S. 496 (1946), a non-Indian challenged his New York
conviction for the murder of another non-Indian within the Allegheny Reservation on the
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grounds that the federal courts had exclusive jurisdiction over his crime. Martins
argument generally mirrored Drapers, but he also argued that the presence of an equal
footing provision in Colorados enabling statute distinguished his case from McBratney,
because New York was one of the original states. The Court rejected this argument
because [t]he fact that Colorado was put on an equal footing with the original states
obviously did not give it any greater power than New York. Martin, 326 U.S. at 499. It
further reasoned that [w]hile Section 2145 of the Revised Statutes has been held
applicable in territories to crimes between whites and whites which do not affect Indians,
the McBratney line of decisions stands for the proposition that States, by virtue of their
statehood, have jurisdiction over such crimes notwithstanding Section 2145. Martin,
326 U.S. at 500.
Of particular relevance, in United States v. Ramsey, 271 U.S. 467, 469 (1926), the
Court observed that with respect to Oklahoma [t]he authority of the United States under
[S]ection 2145 to punish crimes occurred within the state of Oklahoma, not committed by
or against Indians, was ended by the grant of statehood.2
The McBratney line of cases restricts not only the scope of federal jurisdiction
under 2145, but also under the statute at issue in this case. This court has noted that the
jurisdictional provisions of 2145 and its successor statute, the ICCA, are nearly

We are bound by Supreme Court dicta almost as firmly as by the Courts

outright holdings. United States v. Serawpo, 505 F.3d 1112, 1122 (10th Cir. 2007)
(quotation omitted).
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identical. Prentiss, 256 F.3d at 975 n.3. Citing McBratney and Martin, the Supreme
Court has observed that with respect to Indian country crimes involving only nonIndians, longstanding precedents of this Court hold that state courts have exclusive
jurisdiction despite the terms of 1152. Duro v. Reina, 495 U.S. 676, 680 n.1 (1990),
superseded in other respects by statute, 25 U.S.C. 1301; see also, United States v.
Antelope, 430 U.S. 641, 643 n.2 (1977) (observing, with respect to the ICCA, [n]ot all
crimes committed within Indian country are subject to federal or tribal jurisdiction . . .
[u]nder [McBratney], a non-Indian charged with committing crimes against other nonIndians in Indian country is subject to prosecution under state law).
The Supreme Court has not directly considered the issue of whether the federal
courts possess jurisdiction over victimless crimes committed by non-Indians on Indian
land. However, the Court has suggested in dicta that the McBratney rule applies to
victimless crimes as well. The Court summarized the delimitation of state and federal
jurisdiction over crimes in Indian country in Solem v. Bartlett, 465 U.S. 463 (1984).
Within Indian country, State jurisdiction is limited to crimes by non-Indians against
non-Indians, and victimless crimes by non-Indians. Id. at 465 n.2 (citing Martin, 326
U.S. 496); see Ross v. Neff, 905 F.2d 1349, 1353 (10th Cir. 1990) (noting the Supreme
Court has expressly stated that state criminal jurisdiction in Indian country is limited to
crimes committed by non-Indians against non-Indians . . . and victimless crimes by nonIndians) (quoting Solem, 465 U.S. at 465 n.2). The absence of federal jurisdiction over

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victimless crimes perpetrated by a non-Indian in Indian country is explicit in the dicta of

Solem and implicit in the holding of McBratney.3
C
Although the McBratney line of cases establishes that the states, not the federal
government, possess exclusive jurisdiction over non-Indian perpetrators of victimless
crimes, the Oklahoma Constitution appears to disclaim any state jurisdiction over crimes
committed in Indian country. Article I, Section 3 of the Oklahoma Constitution provides:
The people inhabiting the State do agree and declare that they forever
disclaim all right and title in or to any unappropriated public lands lying
within the boundaries thereof, and to all lands lying within said limits
owned or held by any Indian, tribe, or nation; and that until the title to any
such public land shall have been extinguished by the United States, the
same shall be and remain subject to the jurisdiction, disposal, and control of
the United States.
Notwithstanding the plain text, the Oklahoma courts have construed this provision to
disclaim jurisdiction over Indian lands only to the extent that the federal government
claimed jurisdiction. Goforth v. State, 644 P.2d. 114, 116 (Okla. Crim. App. 1982)
(citing Currey v. Corp. Commn, 617 P.2d 177 (Okla. 1979)). As the Oklahoma Court of
Criminal Appeals observed in Goforth, to construe this provision otherwise would result
in a jurisdictional vacuum in which neither the federal government (due to McBratney)

The government should have been aware from its own internal guidelines that
there was no federal jurisdiction over this offense. See U.S. Dept of Justice, United
States Attorneys Manual, tit. 9-20.100, Criminal Resource Manual 683 (1997) (noting
that as a general rule states, not the federal government, have jurisdiction over victimless
crimes committed by non-Indians in Indian country).
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nor Oklahoma could punish crimes committed by non-Indians against non-Indians in

Indian country.4 Consequently, the Oklahoma courts have asserted jurisdiction over
crimes by non-Indians in Indian country. See Goforth, 644 P.2d at 117.
IV
Consequently, the governments failure to allege or present evidence with respect
to Langfords Indian/non-Indian status constitutes plain error. See Kaufman, 546 F.3d at
1263 (a conviction in the absence of evidence to prove an essential element is plain
error).
Although the government contends that Langfords status as a non-Indian is a
technicality, the foregoing discussion demonstrates it is in fact an essential element of a
crime under the ICCA. Unlike in United States v. Goode, 483 F.3d 676, 682 (10th Cir.
2007), the alleged evidentiary insufficiency could [not] have been quickly cured at
trial. As the government concedes in its brief, Langford is a non-Indian. The
government presented no evidence that he is an Indian, nor any evidence that he
victimized any Indian. Thus, this error affects the fairness, integrity, or public
reputation of judicial proceedings. Kaufman, 546 F.3d at 1263.
We conclude by emphasizing that our holding does not create a safe haven for
fanatic cockfighters as the government contends. The State of Oklahoma has

Nor, under Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1990), would the
tribe have authority to prosecute non-Indian criminals committing crimes on tribal lands.
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jurisdiction to prosecute victimless crimes, such as cockfighting, committed in Indian

country by a non-Indian.
V
Because the United States lacks jurisdiction over Langfords conduct, we
VACATE his conviction and REMAND to the district court so that the information may
be dismissed with prejudice. Appellants motion to supplement the record is DENIED.

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