A “Zone of Death” in Yellowstone National Park?

Mark Mandell, Esq.

It’s true: Yellowstone National Park has a 50 square mile parcel of land located in Idaho where someone could get away with murder. This situation has not occurred, but the fact that it’s possible should raise a few eyebrows.

Let’s say two campers – John and Bob – get into a scuffle in the “Zone of Death” area, and John kills Bob. The District Court of Wyoming has jurisdiction over all of Yellowstone National Park, including the Idaho and Montana portions.

So John has committed a crime in the District of Wyoming, the only district court that includes lands in multiple states.  Under the Sixth Amendment, he can invoke the right to a trial by a jury of his peers – in this case, those residing in the Idaho portion of the Wyoming District Court.

Here’s the loophole: nobody lives there. And there’s no constitutional provision for a trial by a jury of buffalo. So a jury cannot be formed and John would walk away a free man.

That is quite a shocking loophole. Perhaps even more troubling is that Congress has known about it and has not fixed it. The issue first received prominence by Michigan State law professor Brian Kalt in his 2005 Georgetown Law Journal article, "The Perfect Crime."

In the years following the article’s publication, Kalt got some traction on persuading Congress to come up with a fix. But it is now nine years since his article was published and nothing has been accomplished yet.

Congress could fix the Zone of Death loophole by simply amending certain sections of title 28 of the United States Code.  What does the Idaho congressional delegation have to say?

Suzanne Wrasse, press secretary for Senator Jim Risch (R-Idaho), said in a report that the Senator was not overly concerned and that the existence of the Zone shouldn’t stop the state (of Idaho) from prosecution, as they have dual jurisdiction in the area. However, professor Kalt takes issue with that analysis.

Kalt notes that the US code states: "The Yellowstone National Park, as its boundaries now are defined, or as they may be hereafter defined or extended, shall be under the sole and exclusive jurisdiction of the United States." And that, today, is the District of Wyoming.

This might sound a little too farfetched to believe. But in 2007, a different, albeit less exciting, case brought up the issue of the Zone of Death loophole.

Michael Belderrain illegally shot an elk in Montana in 2005, and cited Kalt's article as a defense in 2007. Belderrain was standing in Yellowstone when he pulled the trigger, and then dragged the elk to his truck parked in Yellowstone. Belderrain was indicted in the Wyoming District, and objected that he had a right be tried by jurors from Montana – which is actually possible, as the Montana portion of Yellowstone is (sparsely) inhabited by people.

Instead of trying to call such a jury in a loosely populated portion of Montana and make an argument for why the Sixth Amendment did not entitle Belderrain to such a trial, the court dismissed the argument, supposedly because it would imply Yellowstone contained a Zone of Death loophole.

Ultimately, Belderrain took a plea deal and the issue was left unresolved. For now, the loophole remains for Kalt’s imagined “perfect crime,” with the perpetrator potentially walking away freely.