State v. St. Francis

• Decision Date: 14 April 1989
• Docket Number: No. 84-550,84-550
• Citation: 563 A.2d 249,151 Vt. 384
• Parties: STATE of Vermont v. Homer ST. FRANCIS, Jr.; Homer St. Francis; Ronald St. Francis and Homer St. Francis, Sr.
• Court: Vermont Supreme Court

Page 249

563 A.2d 249

151 Vt. 384

STATE of Vermont v. Homer ST. FRANCIS, Jr.; Homer St. Francis; Ronald St.

Francis and Homer St. Francis, Sr.

No. 84-550.

Supreme Court of Vermont.

April 14, 1989.

Motion for Reargument Denied April 14, 1989.

Jeffrey L. Amestoy, Atty. Gen., Elizabeth J. Grant, Asst. Atty. Gen., and Nancy GianLorenzo, Law Clerk, on the brief, Montpelier, for plaintiff-appellee.

David W. Curtis, Defender Gen., and William A. Nelson and Henry Hinton, Appellate Defenders, Montpelier, for defendants-appellants.

Before ALLEN, C.J., PECK, DOOLEY and MAHADY, JJ., and COSTELLO, District Judge (Ret.), Specially Assigned.

DOOLEY, Justice.

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, 34 S.Ct. 1, 58 L.Ed. 107 (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 Indian 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 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

testimony of enforcement officers [151 Vt. 387] and Bureau of Indian Affairs officials" is relevant. Martine, 442 F.2d at 1023-24; and

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, 93 S.Ct. 2686, 2698, 37 L.Ed.2d 548 (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 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 equivalent 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:

means of knowledge...." Id. (emphasis in original).

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,...