UNITED STATES of America, Plaintiff-Appellee, v. ERROL D., JR., a Juvenile, Defendant-Appellant, 292 F.3d 1159

BETTY B. FLETCHER, Circuit Judge. Errol D., a juvenile and a member of the Fort Peck Tribe, appeals his delinquency adjudication and sentence for burglarizing the Bureau of Indian Affairs (“BIA”) facilities management building on the Fort Peck Indian Reservation. We hold that the criminal statute under which he was charged-the Indian Major Crimes Act (“MCA”) (codified at 18 U.S.C. § 1153)-does not give jurisdiction to the federal government to prosecute him, nor does it accord the district court jurisdiction to adjudge him delinquent.

Accordingly, we vacate Errol D.’s delinquency adjudication and dismiss the information against him. I.BACKGROUND On June 29, 1999, the facilities manager for the BIA buddings on the Fort Peck Indian reservation discovered that his office had been broken into and that a brown 1994 pickup truck, a cell phone, and a radio had been taken. A Fort Peck tribal investigator subsequently interrogated Errol, who was then sixteen years old, about the crime. Errol confessed that he was involved with two other boys in committing the burglary. On May 16, 2000, Errol was charged with committing

an act of juvenile delinquency-specifically, that he “did knowingly and unlawfully enter an occupied structure, that is the BIA Facilities Management Building, in Poplar, Montana, with the intent to commit an offense therein, to-wit: theft, which would have been a crime in violation of 18 U.S.C. §§ 1153 and 2; and 45-6-204, M.C.A., if committed by an adult.” The government also filed a certification pursuant to 18 U.S.C. § 5032, stating that the state of Montana did not have jurisdiction over the crime and that the crime involved a substantial federal interest.

On June 26, 2000, defense counsel filed a number of pretrial motions, raising a variety of issues including a challenge to the district court’s jurisdiction. The district court denied these motions without a hearing. At the conclusion of a bench trial held on September 29, 2000, the district court orally adjudged Errol a juvenile delinquent for having committed the break-in. The district court then sentenced Errol to two years’ probation and six months’ incarceration as a condition of that probation. He now appeals. We have jurisdiction to decide this appeal under 28 U.S.C. § 1291.

II.STANDARD OF REVIEW Issues of subject matter jurisdiction are reviewed de novo. Ma v. Reno, 114 F.3d 128, 130 (9th Cir.1997). Issues of statutory

interpretation are also reviewed de novo. United States v. Jarvouhey, 117 F.3d 440, 441 (9th Cir.1997).

III.DISCUSSION Pursuant to 18 U.S.C. § 5031, “juvenile delinquency” is defined as “the violation of a law of the United States committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult.” Furthermore, under the MCA, 18 U.S.C. § 1153(a), in order to confer jurisdiction on the federal courts for burglaries (and other “major crimes”) committed by Indians on reservation land, the alleged offense must be “commit[ted] against the person or property of another Indian or other person.” We hold that because this case involved the burglary of a government facility-and because the government is not a “person” within the meaning of § 1158(a)-Errol D.’s offense did not constitute a “violation of a law of the United States” as charged under the MCA, and the district court, therefore, lacked the requisite jurisdiction to try him.

In the’ recently-decided case United States v. Belgarde, 148 F.Supp.2d 1104 (D.Mont.2001), the district court confronted a similar situation involving a Montana Department of Family Services building located on an Indian reservation that had been burglarized by an Indian. The government charged the defendant under the MCA. The district court granted defendant’s motion to dismiss the indictment, on jurisdictional grounds, finding that the victim of the alleged offense was not an “Indian or other person” under 18 U.S.C. § 1153. The government moved for reconsideration. Id. at 1105.

In its motion, the government argued that § 1153 jurisdiction was proper because other federal criminal statutes define the word “person” to include entities other than individuals, specifically, “government agencies.” Id. (citing 18 U.S.C. §§ 224(c)(3), 921(a)(1), 841(

a) and 2510(6)). For reasons we find persuasive, the district court rejected the government’s argument. The district court observed, first, that none of the statutes cited by the government include within their definition of “person” any government agencies, instead listing, inter alia, corporations, partnerships, and trusts. Id.

The court also noted that 1 U.S.C. § 1 addresses the situation where, as here, a federal statute is silent with respect to the meaning of “person,” and mandates that unless the context indicates otherwise, the term “include[s] individuals, corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”-a list that does not include government agencies. Id. at 1106. Finally, the court discussed the statute’s legislative history and concluded that “there is nothing in the legislative history of

section 1153, or its purpose, that suggests the word ‘person’ includes government agencies.” Id. (quoting 1 U.S.C. § 1). Accordingly, the district court denied the government’s motion to reconsider, and affirmed its ruling that the MCA did not provide jurisdiction for the prosecution of the crime before it. Like the Belgarde court, we can find no relevant decisional or statutory authority to support the proposition that a government agency falls within the definition of “person” as used in § 1153.

Nor can we find anything in the legislative history of § 1153 to suggest that Congress intended the term “person” to be construed in a more expansive manner than its ordinary usage and meaning requires. We therefore find the reasoning of Belgarde highly persuasive. As the Supreme Court recently explained, in Vermont Agency of Natural Res. v. United States, 529 U.S. 765, 780-81, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), there is a “longstanding interpretive presumption that ‘person’ does not include the sovereign....

The presumption is, of course, not a hard and fast rule of exclusion, ... but it may be disregarded only upon some affirmative showing of statutory intent to the contrary.” (internal quotation marks omitted); see also United States v. United Mine Workers, 380 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (“In common usage, that term[persons] does not include the sovereign, and statutes employing it will ordinarily not be construed to do so.”); United States v.

Cooper Corp., 312 U.S. 600, 606, 61 S.Ct. 742, 85 L.Ed. 1071 (1941) (in the context of the Sherman Act, rejecting the argument that “person” be read to include the federal government, noting that “[t]he more natural inference, we think, is that the meaning of the word was in both uses limited to what are usually known as natural and artificial persons, that is, individuals and corporations”). But see Georgia v.

Evans, 316 U.S. 159, 161-62, 62 S.Ct. 972, 86 L.Ed. 1346 (1942) (interpreting “person” to include “states” and distinguishing Cooper on the ground that legislative intent was to permit states to bring suit under the Sherman Act.) Here, evidence of legislative intent to include government agencies within the term “other persons” is nonexistent, and, although it is possible that Congress intended “person” to be construed broadly under § 1153, such speculation cannot by itself suffice to overcome this longstanding presumption.

In the criminal context, we are all the more reluctant to extend federal jurisdiction beyond the plain meaning of the statutory language under the rule of lenity. As the Court stated in Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987): “ 'If the legislative history fail[s] to clarify the statutory language ... our rule of lenity would compel us to construe the statute in favor of petitioners, as criminal defendants in these cases.’ ” Id. at 131, 107 S.Ct. 2739 (quoting Dixson v. United States, 465 U.S. 482, 491, 104 S.Ct. 1172, 79 L.Ed.2d 458 (1984)).

Hence, even if we were to determine that the meaning of the term “person” as used in § 1153 was ambiguous, the rule of lenity precludes our finding jurisdiction over the defendant in this case. We are also mindful that “ ‘the standard principles of statutory construction do not have their usual force in cases involving Indian law.’” EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1082 (9th Cir.2001) (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (1985)).

Because of the unique trust relationship between the United States and Indian tribes, ambiguous provisions in both treaty and non-treaty matters should be “construed liberally” in favor of the Indians. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247, 105 S.Ct. 1245, 84 L.Ed.2d 169 (1985); see also White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 143-44, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980) (finding “[ajmbiguities in federal law have been construed generously in order to comport with ... traditional notions of sovereignty and with the federal policy of encouraging tribal independence”); Karuk, 260 F.3d at 1082(applying the canon to statutory

interpretation); American Indian Law 103-04. Because the MCA constitutes an incursion into the tribal sovereignty of Indian tribes, justified by the “guardianship” powers of Congress, see United States v. Kagama, 118 U.S. 375, 384, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) (upholding constitutionality of the MCA, as an exercise of Congressional power commensurate with its “duty of protection” of “a race once powerful”); see also David Getches, Charles Wilkinson, & Robert Williams, Federal Indian Law 474-75 (4th ed.1998), ambiguous provisions in the MCA must be interpreted in favor of the tribes.

Because, as discussed further below, the General Crimes Act (“GCA”), 18 U.S.C. § 1152, grants the federal government concurrent criminal jurisdiction with the tribes, while the MCA grants exclusive jurisdiction to the federal government, as between those two statutes the latter represents a greater diminishment of tribal autonomy and ought not to be expanded by courts where such expansion is not demanded by the language of, what is here, an ambiguous statute. This canon of construction, therefore, directs that we limit the word “person” to its plain meaning.

In holding that federal jurisdiction does not extend to crimes against government entities under the MCA, we do not mean to suggest that a loophole exists in the panoply of federal criminal statutes governing Indian country. To the contrary, we believe, first, that the government could have charged Errol D. under the GCA, which, by extending the Assimi-lative Crimes Act (“ACA”) (codified at 18 U.S.C. § 13) to Indian territory, would have rendered him criminally hable for a “like offense” and a “like punishment” under state law — including, presumably, for burglaries committed against public facilities.

Second, and perhaps more easily, the federal government could have prosecuted the defendant under 18 U.S.C. § 641, which prohibits the theft of government property. This “federal law[ ] of general, non-territorial applicability,” applies to all persons, both Indian and non-Indian, both within and outside of Indian country. United States v.

Young, 936 F.2d 1050, 1055 (9th Cir.1991) (holding that 18 U.S.C. § 111, assaulting a federal officer; 18 U.S.C. § 922(g), possession of a firearm by a convicted felon; and 18 U.S.C. § 924(c), use of a firearm during a crime of violence, are all federal laws of general applicability under which the federal government may prosecute Indians for commission of these crimes in Indian country). See also United States v.

Begay, 42 F.3d 486, 497-500 (9th Cir.1994) (holding that federal laws of general applicability may be used to prosecute Indians for crimes committed in Indian country, specifically, inter alia, 18 U.S.C. § 371, conspiracy); United States v. Johnson, 637 F.2d 1224, 1231 n. 9 (9th Cir.1980) (noting “exception” to exclusive tribal jurisdiction for federal laws of general applicability); see also American Indian Law 142. Thus it is clear, under our own precedent, that the federal government could have prosecuted the defendant under 18 U.S.C. § 641, the federal statute prohibiting theft of government property.

In this case, however, we conclude the government simply charged Errol D. under the wrong statute. TV. CONCLUSION At virtually every level of analysis — the plain meaning of the statutory language; the longstanding interpretive canon presuming that “person” does not include the government; the lack of contrary evidence from the legislative history or othér indicators of congressional intent; the rule of lenity; and the canon of Indian law construction — we are compelled to conclude that the district court lacked jurisdiction under the MCA to convict Errol D. of the offense for which he was charged.

We accordingly vacate Errol D.’s delinquency adjudication and remand to the district court with instructions to dismiss the information. VACATED AND REMANDED WITH INSTRUCTIONS TO DISMISS. . The district court later ruled that the reference to 18 U.S.C. § 2, the federal aiding and abetting statute, should be struck and that the information should instead refer to Mont. Code Ann. § 45-2-301, the corresponding state statute on aiding and abetting. . Specifically, Errol D. moved to dismiss the charge against him on the ground that his case did not involve Indian on Indian crime.

The district court rejected the argument, reasoning that "[t]he plain reading of the statute demonstrates that federal court jurisdiction exists under

section 1153 when the defendant is an Indian who commits, within Indian country, an offense listed in

section 1153.” However, as discussed infra, the district court apparently overlooked the additional question whether the federal government had jurisdiction to prosecute Errol D. under the MCA since his crime was not against a "person,” but instead, against the property of the BIA. . Although Errol D. does not raise this argument before us on appeal, we are obligated to raise it sua sponte given its jurisdictional nature. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 n. 10, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). . Our holding in FTC v.

MTK Mktg., Inc., 149 F.3d 1036 (9th Cir.1998), is not to the contrary. That case involved whether, in the civil context and under California law, the federal government constituted a "person” for purposes of enforcing liability against telemarketing firms. Our decision relied in significant part on the fact that the language, purpose, and legislative history of the state statute clearly supported a broad remedial reading. Id. at 1039-40 (citing Cal. Bus. & Prof.Code § 17511(b), the "intent of the Legislature in enacting this

article to ... safeguard the public against deceit ... This

article shall be construed liberally in order to achieve [this] purpose”) (alterations in original). Such factors are noticeably absent here, especially in light of the fact that the primary purpose of the MCA was to adequately punish major crimes committed by Indians against Indians on reservation land. See William C. Canby, Jr., American Indian Law 153-54 (3d ed.1998). Unlike the statute at issue in MTK Marketing, we are not implored by the drafters of the MCA to "liberally” interpret its terms (as discussed infra, under the Indian canon of construction applicable here, we do just the opposite).

For these reasons, MTK Marketing is not controlling. . The effect of the GCA is to "import into Indian Country the entire body of criminal law applicable in areas under exclusive federal jurisdiction.” American Indian Law 145. The GCA states, in pertinent part, that its provisions "shall not extend to offenses committed by one Indian against the person or property of another Indian.” 18 U.S.C. § 1152 (emphasis added). By inference, the entirety of federal enclave law otherwise applies to crimes committed by Indians against non-Indian victims on reservation land.

Thus, in defining its jurisdictional scope, the GCA does not employ the term "person” in the same manner as the MCA. Put another way, § 1152 does not state that the victims of these crimes must be non-Indian "persons”; by employing the negative, § 1152 applies federal enclave law to all other situations (i.e., to all crimes committed on reservations that are punishable under state law pursuant to the Assimilative Crimes Act, 18 U.S.C. § 13(a), regardless of the nature or identity of the non Indian victim — including, presumably, the government).

The fears expressed by the dissent of a statutory "loophole" in law enforcement are not well taken. Cf. United States v. Thunder Hawk, 127 F.3d 705, 708 (8th Cir.1997) (affirming the conviction under § 1152 of an Indian defendant for driving drunk on the reservation by applying the relevant South Dakota DUI statute as incorporated through the ACA, in spite of the fact that "[t]his offense does not require a victim, whether Indian or non-Indian”).

In sum, the plain language of the GCA supports our conclusion that Errol D. could have been prosecuted for burglarizing the BIA facility under § 1152, but not under § 1153. Further, he could have been prosecuted under 18 U.S.C. § 641, see discussion infra. . The dissent mischaracterizes our reasoning, and attempts to rely on a case easily distinguished from the situation presented here.

The dissent charges the majority unjustly with "pushing the prosecution of burglary of a government agency” from the MCA, where it is presumed by the dissent to reside, into the uncertain hands of the GCA, and of "rearranging]” the relevant criminal statutes. [Dissent at 1170]. Relying on Henry v.

United States, 432 F.2d 114 (9th Cir.1970) (holding that the government has jurisdiction to prosecute an Indian for the rape of a non-Indian in Indian country under the MCA), for the agreeable, though irrelevant, proposition that "the 'other person’ language” in § 1153 "cannot be disregarded,” the dissent contends that the "only jurisdictional requirements" for the government to charge one of the enumerated crimes under the MCA are (1) that it be "committed by an Indian,” and (2) that it be committed "in Indian country." [Dissent at 1169-70].

By reading "against the person or property of another Indian or other person” out of the statute, this third jurisdictional requirement defining the victim of the crime is made to disappear by the dissent. Henry, however, will not do the work that the dissent wishes it to do. Henry simply stands for the proposition that the phrase "or other person” does in fact apply to non-Indian human persons.

The citation to Cohen’s Handbook of Federal Indian Law, [Dissent at 8983], provides no support, since it does nothing to resolve the question of how to understand the phrase "or other person,” and instead notes merely that to the extent there is "duplication” between the MCA and the GCA, the MCA should govern. The dissent offers no citation for the proposition that Congress wished to include crimes against government agencies within the phrase "or other person,” thereby creating such duplication.

Though troubled with the idea that federal jurisdiction over property crimes such as the one at issue here might be found pursuant to the GCA, which preserves tribal jurisdiction, but not the MCA, the dissent offers nothing to suggest that this cannot be so. Regardless, such discomfort with concurrent jurisdiction is no basis for the dissent's statutory construction, and does not give us the power to grant jurisdiction where it does not exist.