OCTOBER TERM, 1993
certiorari to the supreme court of utah
No. 92-6281. Argued November 2, 1993—Decided February 23, 1994
Petitioner, an Indian, was charged in Utah state court with distribution of a controlled substance in the town of Myton, which lies within the original boundaries of the Uintah Indian Reservation on land that was opened to non-Indian settlement in 1905. The trial court rejected petitioner's claim that it lacked jurisdiction over him because he was an Indian and the crime had been committed in "Indian country," see 18 U. S. C. § 1151, such that federal jurisdiction was exclusive. The state appellate court, relying on Ute Indian Tribe v. Utah, 773 F. 2d 1087 (CA10), cert. denied, 479 U. S. 994, agreed with petitioner's contentions and vacated his conviction. The Utah Supreme Court reversed and reinstated the conviction, ruling that Congress had "diminished" the reservation by opening it to non-Indians, that Myton was outside its boundaries, and thus that petitioner's offense was subject to state criminal jurisdiction. See Solem v. Bartlett, 465 U. S. 463, 467 ("States have jurisdiction over . . . opened lands if the applicable surplus land Act freed that land of its reservation status and thereby diminished the reservation boundaries").
Held: Because the Uintah Reservation has been diminished by Congress, the town of Myton is not in Indian country and the Utah courts properly exercised criminal jurisdiction over petitioner. Pp. 409-422. (a) This Court declines to consider whether the State of Utah, which was a party to the Tenth Circuit proceedings in Ute Indian Tribe, should be collaterally estopped from relitigating the reservation boundaries. That argument is not properly before the Court because it was not presented in the petition for a writ of certiorari and was expressly disavowed by petitioner in his response to an amicus brief. Pp. 409-410. (b) Under this Court's traditional approach, as set forth in Solem v. Bartlett, supra, and other cases, whether any given surplus land Act diminished a reservation depends on all the circumstances, including (1) the statutory language used to open the Indian lands, (2) the contemporaneous understanding of the particular Act, and (3) the identity of the persons who actually moved onto the opened lands. As to the first, the most probative, of these factors, the statutory language must establish an express congressional purpose to diminish, but no particular form of words is prerequisite to a finding of diminishment. Moreover, although
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