State v. Dana

Decision Date03 July 1979
Citation404 A.2d 551
PartiesSTATE of Maine v. Albert C. DANA, Jr. STATE of Maine v. Allen J. SOCKABASIN.
CourtMaine Supreme Court

John M. R. Paterson (orally), David Roseman, William Laubenstein, Asst. Attys. Gen., Augusta, for the State.

Edward J. Shawaker (orally), Jacques B. Gelin, Dept. of Justice, Washington, D.C., George J. Mitchell, U.S. Atty., District of Maine, Portland, for amicus curiae, United States.

Brown & Tibbetts by John A. Churchill, Jr. (orally), Calais, for defendants.

Thomas N. Tureen (orally), Native American Rights Fund, Portland, Richard B. Collins, Native American Rights Fund, Boulder, Colo., for amicus curiae, Joint Tribal Council of Passamaquoddy Tribe.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY, and NICHOLS, JJ.

WERNICK, Justice.

The appeals in this case raise an important question of federal-state relations in what has continued to be, since our nation's beginnings, the sensitive area of criminal jurisdiction over Indians. 1 The issue is: Does 18 U.S.C. § 1153 (1970 ed.), the current version of the Major Crimes Act of 1885, prevent the State of Maine from exercising jurisdiction over the crime of arson as allegedly committed by two Passamaquoddy Indians on certain land in Maine inhabited by Indians known as the "Passamaquoddy Tribe"? The resolution of the question turns on the meaning, and reach, of "all dependent Indian communities", one of the alternative phrases used by Congress in 18 U.S.C. § 1151 (1976 ed.) to define "the Indian country" brought within the exclusive jurisdiction of the federal government when certain enumerated crimes are committed there by Indians. 2

We have arrived at an understanding of the meaning, and scope, of "all dependent Indian communities", as a criterion of the existence of "Indian country", which leads us to conclude that the term embodies an expansive federal concern with matters affecting Indians which was not fully recognized by the Superior Court when it failed to arrest the judgments of conviction now before us. We therefore sustain the appeals from those judgments and remand to the Superior Court for further inquiry, in accordance with guidelines hereinafter provided, into the question whether the status of the "Passamaquoddy Tribe" and its lands brings this arson case within the jurisdiction of the federal government to the exclusion of the jurisdiction of the State of Maine.

1.

Separate indictments returned May 3, 1977 in the Superior Court (Washington County) charged that defendant Albert C. Dana and defendant Allen J. Sockabasin, respectively "on or about the sixteenth day of April 1977, in Indian Township, County of Washington and State of Maine . . . did start, cause, or maintain a fire on the property of another, to wit; Indian Township Elementary School, situated in Peter Dana Point, so-called, in said Indian Township, the property of the Passamaquoddy Indian Tribe with the intent to damage or destroy property thereon."

Each defendant pleaded not guilty, and the indictments were consolidated for trial before a jury. Evidence presented at trial as part of the State's case indicated that each defendant was an Indian and that each had committed the crime charged on the "reservation" in Maine inhabited by Indians bearing the name "Passamaquoddy Tribe." When the State concluded its case in chief, defendants contended that the indictments should be dismissed because the Court lacked jurisdiction of the subject-matter. By agreement, consideration of the issue was postponed until after the case had been submitted to the jury.

After the jury found the defendants guilty as charged, each defendant filed a motion in arrest of judgment asking dismissal for lack of subject-matter jurisdiction. Each motion claimed that defendant was a Passamaquoddy Indian, that the offense of arson charged against him was a crime listed in 18 U.S.C. § 1153, and that since it had been committed within "Indian country" as defined in 18 U.S.C. § 1151, the offense lay within the exclusive federal jurisdiction announced by Section 1153. 3

Evidence presented at the hearing on the motions showed that each defendant was a Passamaquoddy Indian by descent and heritage, listed as a member of the "Passamaquoddy Tribe" on its rolls, and that the reservation in question at Peter Dana Point was inhabited by Indians of the "Passamaquoddy Tribe." The Justice presiding at the hearing found that "both of these defendants are indeed Indians." He concluded, however, that the Superior Court had jurisdiction of the subject-matter and, accordingly, denied each motion in arrest of judgment.

The rationale of this ruling, as explained in the opinion written by the presiding Justice, was: (1) dicta from this Court in 19th century cases

"suggest . . . that there is no (I)ndian country within the State of Maine . . . ";

(2) express limiting language in Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), indicates that that decision does not require abandonment of the long-established and uniform practice of the Maine authorities as based on the prevailing belief that there has never been Indian country in this State; and (3) the record before the Superior Court sufficiently established that defendants committed the crime within the territorial boundaries of the State and thus proved the Superior Court's subject-matter jurisdiction.

Each defendant has appealed from the judgment of conviction entered against him and asserts as the only issue on appeal the jurisdictional question. As earlier indicated, we sustain the appeals, concluding that the presiding Justice erroneously assessed federal law, and more particularly the bearing of Passamaquoddy v. Morton, supra, on the matters, both factual and legal, that affect the determination whether the crime of arson was committed by these defendants in "Indian country."

2.

Taken in its narrowest decisional scope, Passamaquoddy v. Morton holds that the federal government's duty to act as the guardian of Indian tribes, as more particularly made a Trust responsibility by the Indian Trade and Intercourse Act of 1790, 1 Stat. 137, now 25 U.S.C. § 177, extends to Every bona fide tribe of Indians, even if any such tribe has never been specifically recognized as a tribe by the federal government and, absent such specific federal recognition, may have always submitted to the guardianship and protection of a State. Passamaquoddy v. Morton establishes at least this much As law, though it may not have finally resolved the mixed factual and legal question whether the Maine Indians who bear the name "Passamaquoddy Tribe" comprise a bona fide tribe of Indians. See Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061, n. 3 (1st Cir. 1979).

In deciding Passamaquoddy v. Morton, the Court of Appeals for the First Circuit referred specifically to State v. Newell, 84 Me. 465, 24 A. 943 (1892), and to the reasoning underlying the dictum in that case (referred to by the presiding Justice here) denying the existence of "Indian country" in Maine. Insofar as the dictum in Newell rested on the factual considerations that the Passamaquoddies'

"Power to make war or peace, and the like, had vanished, and the political and civil rights of its members were enforced only in the courts of the State",

the First Circuit pointed out that

"no federal cases hold that the test of tribal existence for purposes of the (Indian Trade and Intercourse) Act turns on whether a given tribe has retained sovereignty in this absolute sense." Passamaquoddy v. Morton, supra, at 378, n. 9.

Moreover, as to the remark in Newell that the federal government had never specifically recognized the Passamaquoddies to be a tribe of Indians, the First Circuit stressed that If the Passamaquoddies had always been a bona fide tribe of Indians federal recognition was not a "sine qua non" of the federal government's fiduciary responsibility to protect the "title" rights of the tribe in its lands. In addition, neither the status of the Passamaquoddies as a bona fide Indian tribe nor the federal government's role as fiduciary would have been terminated merely because the federal government had failed to make a response to State v. Newell disputing the view advanced in that case. Passamaquoddy v. Morton, supra, at 380.

The discussion that follows will show why we have concluded that the presiding Justice failed to accord the above-described aspects of the decision in Passamaquoddy v. Morton their full bearing on the factual and legal issues involved in the determination of the status of the area in question as "Indian country."

3.

Arguing in support of the Superior Court's subject-matter jurisdiction, the State first points to the fact that the term "Indian country" initially appeared, undefined, in the various Indian Trade and Intercourse Acts enacted by Congress in the period from 1790 until 1834. The State then presents an historical survey and review not only of pre-federal Indian policies of the British and the Continental Congress from which the Indian Trade and Intercourse Acts evolved but also of long-standing federal legislative, executive and administrative statements bearing on federal jurisdiction over the Indians generally and the Maine Indians in particular. Relying on this approach, the State takes the same position as to the meaning of the term "Indian country" appearing in 18 U.S.C. § 1151 that it sought, unsuccessfully, to have the First Circuit adopt regarding the meaning of "any . . . tribe of Indians" as used in the successive Indian Trade and Intercourse Acts. The State contends that even if the Passamaquoddies may always have been a bona fide tribe of Indians they had never been specifically recognized and dealt with by the federal government as constituting a tribe. Hence, they cannot be taken to be the kind of tribe contemplated by the mention of the "Indian Tribes" in Article I, § 8 of the...

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