State v. St. Francis

563 A.2d 249, 151 Vt. 384, 1989 Vt. LEXIS 90

• Court: Supreme Court of Vermont
• Decided: April 14, 1989
• Docket: 84-550
• Status: Published

Opinions

Dooley, J.

This is an interlocutory appeal by defendants from a pretrial ruling of the trial court. Defendants had moved to dismiss the various criminal charges filed against them for lack of subject matter jurisdiction in the district court. The trial court ruled that defendants bore the burden of proving that they are Indians and that the alleged offenses occurred in “Indian country,” as defined by 18 U.S.C. § 1151 (1982). Defendants appeal from these rulings. We affirm.

Defendants also challenge the refusal of the trial judge to recuse himself by reason of his property ownership within the geographic area which defendants claim to be “Indian country.” As to that issue we also affirm.

I.

A.

The alleged offenses filed by the State in these various cases include driving while under the influence of intoxicating beverages, 23 V.S.A. § 1201, driving while defendant’s right to operate was under suspension, 23 V.S.A. § 674, simple assault, 13 V.S.A. § 1023, simple assault on a police officer, 13 V.S.A. § 1028, and aggravated assault, 13 V.S.A. § 1024.

If the defendants are Indians and if the alleged offenses occurred, as defendants claim, in “Indian country,” as that term is used in 18 U.S.C. § 1151, the courts of this state would not have jurisdiction of the first four offenses set forth above (all misdemeanors) by reason of the exclusive federal jurisdiction over such offenses in “Indian country” established by 18 U.S.C. § 1152 (1982). Nor would the courts of this state have jurisdiction with regard to the felony of aggravated assault by reason of the exclusive federal jurisdiction established in 18 U.S.C. § 1153.

Under the federal statute, “Indian country” is defined to include Indian reservations, 18 U.S.C. § 1151(a), “dependent Indian communities,” 18 U.S.C. § 1151(b), and Indian allotments, 18 U.S.C. § 1151(c). Defendants concede that there are no Indian reservations or Indian allotments in Vermont. They assert, however, that the alleged offenses all occurred within a “dependent Indian community.”

Section 1151’s inclusion of “dependent Indian communities” within the definition of “Indian country” codifies the decision of the United States Supreme Court in United States v. Sandoval, 231 U.S. 28 (1913). Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 508 (1976). The criteria to be used to decide whether an area is a “dependent Indian community” are numerous. United States v. Martine, 442 F.2d 1022, 1023 (10th Cir. 1971). In this regard, various courts have considered evidence which would tend to prove or disprove the following:

a) that as a bona fide tribe of Indians, the tribe inhabited the land in question and had Indian title to it “in 1790 when the Indian Trade and Intercourse Act became law” continuously through the date “the instant crime was committed on it.” State v. Dana, 404 A.2d 551, 562 (Me. 1979);

b) “evidence as to the nature of the area in question, the relationship of the inhabitants of the area to Indians Tribes and to the federal government, and the established practice of government agencies toward the area.” United States v. Martine, 442 F.2d at 1023; see also United States v. Sandoval, 231 U.S. 28; United States v. Joseph, 94 U.S. 614 (1876). In this context “[t]he testimony of enforcement offleers and Bureau of Indian Affairs officials” is relevant. Martine, 442 F.2d at 1023-24; and

c) that the land in question “was established for the use, occupancy and protection of dependent Indians.” United States v. Levesque, 681 F.2d 75, 77 (1st Cir. 1982). This is a difficult element of the test to prove. In Weddell v. Meierhenry, 636 F.2d 211, 213 (8th Cir. 1980), the Court of Appeals held that a community in South Dakota was not a dependent Indian community even though within a Sioux Indian Reservation.¹

Based on this evidence, “under section 1151(b), the existence and dependent nature of the affected Indian community must be established.” Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. at 512. Whether the physical location of the alleged crimes was within “a dependent Indian community” is a question of fact. Martine, 442 F.2d at 1024. The principal issue presented by this appeal is who bears the burden of proof as to the establishment of that fact.

B.

The principal issue we decide is who bears the burden of proving whether the alleged crimes were committed by an “Indian” and within “Indian country,” as defined by federal statute. If defendants are “Indians” and the crimes were committed within “Indian country,” then Vermont has no jurisdiction over defendants. 18 U.S.C. §§ 1151, 1152, 1153, 1162. For analytical purposes the questions are essentially the same. We analyze in detail the burden of proof on the issue of “Indian country” and find that defendants have the burden of proof on this issue. We also find they have the burden of proving they are Indians. Defendants must meet these burdens by a preponderance of the evidence.

Our analysis must start with the general rules guiding the allocation of the burden of proof. “There are no hard-and-fast standards governing the allocation of the burden of proof in every situation.” Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 209 (1973). This proposition is based in part on Professor Wigmore’s conclusion that “there is not and cannot be any one general solvent for all cases. It is merely a question of policy and fairness based on experience in the different situations.” 9 J. Wigmore, Evidence in Trials at Common Law § 2486 (1981). Professor Wigmore states various considerations for allocating the burden of proof. The first is to place the burden on the “party having in form the affirmative allegation.” Id. (emphasis removed). This is an application of the obvious principle that it is easier to prove the existence of a fact than the nonexistence of a fact. A second test is to determine “to whose case the fact is essential.” Id. (emphasis removed). And finally, “[s]till another consideration has often been advanced as a special test for solving a limited class of cases, i.e., the burden of proving a fact is said to be put on the party who presumably has peculiar means of knowledge . . . .’’ Id. (emphasis in original).

Our limited precedents are consistent with these general principles. In State v. McCaffrey, 69 Vt. 85, 37 A. 234 (1896), the defendant in a truancy prosecution argued that the State had failed to prove that his child had not received an equivaent education elsewhere, which under the statute removed defendant’s obligation to send the child to a local public school. The Court held the burden of proof on the issue of alternative education was on the defendant:

The respondent contends that to establish the offense it was incumbent upon the State to negative the exceptions in the statute. The rule is that the exceptions must be negatived only where they are descriptive of the offense or define it, but where they afford matter of excuse merely, and do not define nor qualify the offense created by the enacting clause, they are not required to be negatived. In this case the exceptions are not descriptive of the offense. If the respondent came within either of the exceptions the fact was peculiarly within his knowledge and should have been proved by him as a matter of defense.

Id. at 90-91, 37 A. at 235-36. We have had occasion since to apply the McCaffrey rule, although without analysis. See, e.g., State v. Dragon, 130 Vt. 334, 342, 292 A.2d 826, 831 (1972) (entrapment). The McCaffrey analysis contains all of the Wigmore considerations, including whether the fact in issue is “peculiarly” within the knowledge of the party.

Applying the McCaffrey rule, the State has the initial burden of proving that the criminal act “occurred within the State of Vermont.” State v. Huginski, 139 Vt. 95, 97, 422 A.2d 935, 936 (1980). This element is clearly part of the basic offense. See Vt. Const. ch. II, § 39 (indictments must allege that crime was “against the peace and dignity of the State”). Huginski should not be taken as holding that all matters relating to jurisdiction are necessarily part of the State’s burden. Allocating the burden of proof in matters relating to jurisdiction, like others, must be weighed under the considerations in McCaffrey.

Under both the McCaffrey rule and Wigmore’s basic principles of allocating the burden of proof, the burden on the “Indian country” issue in the case before us falls squarely on the defendants. The defendants’ claim is based on a federal statute. In no sense can we say that proving that the offense did not occur in Indian country is part of the basic definition of the offense of DUI or assault. See McCormick on Evidence § 337 (3d ed. 1984) (“In most cases, the party who has the burden of pleading a fact will have the burdens of producing evidence and of persuading the jury of its existence as well.”). In addition, if the State has the burden, it is put in the position of proving a negative. The defendants have the affirmative allegation here. Finally, whether these defendants committed the alleged offenses in “Indian country,” or more specifically, in “dependent Indian communities,” and whether the tests established by case law to prove this element are met, involves proving elements peculiarly within the knowledge of the Abenaki Indian tribe, and its individual members. As a result, this information is more readily ascertainable by the defendants than by the State.

It is also significant that the majority of other states addressing this issue hold that the defendant bears the burden of proof.² In State v. Cutnose, 87 N.M. 307, 309, 532 P.2d 896, 898 (1974), the Court of Appeals of New Mexico held that “[t]he burden was upon defendant to demonstrate a lack of jurisdiction in the district court.” Nevada has a similar rule. In State v. Buckaroo Jack, 30 Nev. 325, 334, 96 P. 497, 497 (1908), the court held that it was not “incumbent upon the state to prove further than that the offense was committed within the county.” The Buckaroo Jack court stated the burden of proof simply: “[i]f an exception [to jurisdiction] exists, it must be shown.” Id. at 335, 96 P. at 497; see also Pendleton v. State, 103 Nev. 95, 99, 734 P.2d 693, 695 (1987) (“The defendant has the burden of showing the applicability of negative exceptions in jurisdictional statutes.”); Jones v. State, 94 Nev. 679, 680, 585 P.2d 1340, 1341 (1978); State v. Mendez, 57 Nev. 192, 209, 61 P.2d 300, 305 (1936).

In similar situations courts have held that the defendant must prove lack of jurisdiction in the state court. See, e.g., Herman v. State, 272 Ind. 361, 363, 397 N.E.2d 978, 979 (1979) (defendant must prove lack of jurisdiction in the state court when claiming that because he was in a U.S. Post Office at the time of offense federal jurisdiction was exclusive). In addition, the case before us is not unlike those where attempts are made to bring actions against foreign governments. Sovereign immunity must be proved by the party claiming it. In re Sedco, Inc., 543 F. Supp. 561, 564 (S.D. Tex. 1982) (“Once a basis for jurisdiction is alleged, the burden of proof rests on that foreign state to demonstrate that immunity should be granted.”); accord De Sanchez v. Banco Central De Nicaragua, 515 F. Supp. 900, 903 (E.D. La. 1981); Jet Line Services, Inc. v. M/V Marsa El Hariga, 462 F. Supp. 1165, (D. Md. 1978); cf. Victory Transport Inc. v. Comisaria General, 336 F.2d 354, 360 (2d Cir. 1964).

Defendants argue that the jurisdictional issue involves deference to the federal government. In this view federal-state comity requires the state to show its justification for interference in matters that are normally reserved to the fedeeral government. We could accept this policy if there were any evidence of federal involvement or interest in this case. While no developed record on this issue is before us, there is no evidence that the federal government recognizes any part of Vermont as Indian country. Further, the federal government has not recognized the Abenaki tribe as one with which it has a trust relationship. See Comment, Jurisdiction over Adjudications Involving the Abenaki Indians of Vermont, 10 Vt. L. Rev. 417, 429 (1985). Thus, to the federal government, the constitutional provision that underlies its responsibility in this area does not apply to the Abenaki tribe or the defendants in this case. U.S. Const. Art. 1, § 8. There is no evidence that the federal government would take any action in this case. We think it inappropriate to ground a burden of proof rule on deference to the interests of another sovereign which, in fact, has no interests in the case before us. This is not deference to another sovereign; it is abdication of responsibility. If defendants prevail, the apparent result is that they will escape all criminal prosecution. While this result may be commanded by the federal-state relationship in Indian affairs, we can think of no policy reason to facilitate it by a special burden of proof rule.

The considerations that are determinative in allocating the burden of proof on the “Indian country” issue are similarly determinative on allocating the burden of proof of whether defendants are Indians. We hold that the defendants bear the burden on both issues by a preponderance of the evidence.

II.

Defendants have also appealed the failure of the trial judge to recuse himself by reason of his ownership of real property within the geographic area which defendants claim to be Indian country.

According to A.O. 10 Canon 3(C)(1)(c), a judge is obligated to disqualify himself in any proceeding “in which his impartiality might reasonably be questioned” including where “he knows that he ... has a financial interest in the subject matter in controversy . . . or any other interest that could be substantially affected by the outcome of the proceeding.” However, there must be some explanation of how the conduct, activities, or attitudes of a judge are inconsistent with the judge’s ability to preside impartially over a cause. See In re International Business Machines Corp., 618 F.2d 923, 927-28 (2d Cir. 1980).

In this case, there is no link-by-link explanation of how the outcome of these criminal prosecutions could affect any financial or other interest of the trial judge. Any such connection is so remote that his impartiality could not reasonably be questioned. See 12 V.S.A. § 61(c).

Affirmed.

1 The Weddell court stated that:

Wagner, South Dakota, is located within the exterior boundaries of the original Yankton Sioux Indian Reservation. However, as a municipal corporation, Wagner is independent from the Yankton Sioux tribe. . . . Only 16.3 percent of the population of Wagner is Indian. And although federal funds comprise 25 percent of the Wagner School District budget, the district court found that funding to be proportionate to the Indian student enrollment. As the petitioner points out, the Bureau of Indian Affairs office and a Public Health Service hospital located in Wagner administer various federal programs for members of the reservation.

We agree with the district court that it would be unwise to expand the definition of a dependent Indian community under section 1151 to include a locale merely because a small segment of the population consists of Indians receiving various forms of federal assistance. Although the community of Wagner is biracial in its composition and social structure, it is clearly not a dependent Indian community under any of the definitions set forth in the cases discussed above.

636 F.2d at 213; see also Martine, 442 F.2d at 1023-24.

2 In State v. Dana, 404 A.2d at 562, the Maine Supreme Court held that “[p]ursuant to [Maine state statute] the State of Maine must come forward with evidence before the presiding Justice, acting without a jury, sufficient to meet the ultimate burden of establishing beyond a reasonable doubt” this evidence. While the test to apply is relevant to the case at bar, neither the statutorily-mandated placing of the burden on the State of Maine, nor the “beyond a reasonable doubt standard,” are.