U.S. v. Levesque, 80-1749

• Decision Date: 22 June 1982
• Docket Number: No. 80-1749,80-1749
• Citation: 681 F.2d 75
• Parties: 10 Fed. R. Evid. Serv. 1159 UNITED STATES of America, Appellee, v. Leonard LEVESQUE, a/k/a Jason Levesque, and Raynard Levesque, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 75

681 F.2d 75

10 Fed. R. Evid. Serv. 1159

UNITED STATES of America, Appellee, v. Leonard LEVESQUE, a/k/a Jason Levesque, and Raynard Levesque, Defendants, Appellants.

No. 80-1749.

United States Court of Appeals First Circuit.

Argued Jan. 4, 1982.

Decided June 22, 1982.

Joseph L. Ferris, Ellsworth, Maine by appointment of the Court, with whom Libhart, Ferris, Dearborn, Willey & Ferm, Ellsworth, Maine, was on brief, for appellant Raynard Levesque.

Charles E. Gilbert, III, Bangor, Maine by appointment of the Court, and Vafiades, Brountas & Kominsky, Bangor, Maine, on brief for appellant Leonard Levesque.

Jay P. McCloskey, Asst. U. S. Atty., Bangor, Maine, with whom Richard S. Cohen, U. S. Atty., Portland, Maine, was on brief, for appellee.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The appellants, Leonard and Raynard Levesque, are Passamaquoddy Indians. Because of their participation in certain violent events arising from a drunken brawl, they were prosecuted and convicted after a jury trial in the United States District Court for the District of Maine of having assaulted one Allen Dorn resulting in serious bodily injury. 18 U.S.C. § 1153. Federal prosecution was grounded on the theory, as alleged in the indictment, that the crime occurred "within the Indian country, to wit, the Passamaquoddy Indian Reservation, Peter Dana Point, Indian Township, Washington County, a dependent Indian community, in the District of Maine." Section 1153 of 18 U.S.C. provides that an Indian who commits an "assault resulting in serious bodily injury within the Indian country" is subject to the jurisdiction of the United States. See United States v. John, 437 U.S. 634, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1977). ¹

On appeal from their convictions, the Levesques assert that the evidence was insufficient to establish that the offense was within "Indian country." They also raise other exceptions.

1. Whether the Offense was within "Indian Country"

The term "Indian country" is defined in 18 U.S.C. § 1151 as comprehending,

(a) all land within the limits of any Indian Reservation under the jurisdiction of the United States Government ... (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof ... (c) all Indian allotments....

(Emphasis supplied). The Peter Dana Point region where the alleged offense occurred is not a federal reservation nor is it an "Indian allotment." The government contends, however, that it is a "dependent Indian community" and is, for that reason, "Indian country." The court below charged the jury that, to convict, it must first determine that such was the case, and appellants now argue both that the evidence was insufficient to allow such a finding and that the court erred in presenting the issue to the jury rather than deciding it for itself.

Underlying defendants' contentions is the fact that the Passamaquoddy Tribe in Maine, of which defendants are members, unlike the Western Indians, has only recently been recognized as having any relationship with the federal government. Until the Passamaquoddies prevailed in litigation in the 1970's, see Passamaquoddy v. Morton 528 F.2d 370 (1st Cir. 1975), ² they were regarded as wards of the State of Maine, and their reservations in Maine-of which the locus of the crime here in question was a part-were state regulated. Thus for nearly 200 years, criminal jurisdiction over Passamaquoddies wherever located was exercised by the state. The present case arises in the aftermath of the Morton decision and following a formal determination by the federal Bureau of Indian Affairs published January 29, 1979, that the Passamaquoddy Tribe is a "tribal entity" having a government-to-government relationship with the United States. ³ 44 Fed.Reg. 7,235, 7,236 (1979).

We believe that federal jurisdiction was adequately demonstrated here. ⁴ Congress inserted the term "dependent Indian community" in the statutory definition of Indian country in 1948. The revisers of the 1948 Criminal Code noted that the definition was based on construction of the term in United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1937), following United States v. Sandoval, 231 U.S. 28, 46, 34 S.Ct. 1, 5, 58 L.Ed. 107 (1913). In Sandoval, the Supreme Court upheld Congress's power to enact criminal sanctions with respect to conduct occurring on lands owned communally by Pueblo Indians and held by them in fee simple, such lands being termed by the Court "dependent Indian communities." The phraseology in issue thus seems intended to afford federal criminal jurisdiction over crimes committed by Indians in communities which, while neither part of a federal reservation nor Indian "allotments," are both "Indian" in character and federally dependent.

Since 1948 the Eighth and Tenth Circuits have had occasion to construe the meaning of "dependent Indian community" as used in 18 U.S.C. § 1151. United States v. South Dakota, 665 F.2d 837 (8th Cir. 1981); Weddel v. Meierhenry, 636 F.2d 211 (8th Cir. 1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981); United States v. Martine, 442 F.2d 1022 (10th Cir. 1971). See also United States v. Mound, 477 F.Supp. 156 (D.S.D.1979). These courts have concluded that section 1151(b) mandates a functional inquiry into the nature of the community in which the crime occurred, the ultimate issue being whether the evidence shows that the area was established for the use, occupancy and protection of dependent Indians. Thus in Martine, sustaining federal jurisdiction over an offense on Navajo-owned land purchased with tribal funds from a corporate owner, the Tenth Circuit held that the district court properly took evidence on the nature of the area, the relationship of the inhabitants to Indian Tribes and to the federal government, and the established practice of government agencies towards the area. 442 F.2d at 1023.

The Eighth Circuit followed much the same approach in United States v. South Dakota. It found that a housing project operated and principally occupied by Indians was a dependent Indian community. The fact that a small number of non-Indians also lived at the project, that residents' children attended the local public schools, and that the project would cease whenever HUD funding ran out, were held not to prevent "dependent Indian community" status.

In the present case, the prosecution submitted largely unrebutted evidence on the three key factors identified in Martine, 442 F.2d at 1023. Concerning the first such factor, the nature of the area, it was shown that the assault occurred in front of a mobile home on a promontory called Peter Dana Point located within Indian Township. Except for 6,000 privately owned acres located elsewhere, it was testified that all of Indian Township belonged to the Passamaquoddy Indians, being part of the Passamaquoddy Indian Reservation. As to the second factor, the relationship of the inhabitants to Indian tribes, it was shown that 94 percent of the inhabitants of Indian Township were Passamaquoddy Indians, their status as such, for census purposes, having been approved by the Passamaquoddy Governor and Council. And finally, as to the relationship of the community with the federal government and the practice of government agencies, it was testified by John Meyers, Director of Indian Services, Bureau of Indian Affairs, that the Passamaquoddy Tribe now had the status of a federally recognized tribe. Citing the published notice mentioned above, Mr. Meyers said that a government-to-government relationship existed between the Passamaquoddy Tribe and the United States. He testified to various federal government programs involving the Tribe, including recent grants for tribal courts and law enforcement. From 1979-81, about $3 million had been furnished the Indians from federal sources. The State of Maine, according to Meyers, no longer funds the Tribe.

We think the above evidence, which was not substantially disputed, established prima facie that Peter Dana Point, where the crime occurred, was a "dependent Indian community" and hence "Indian country" within 18 U.S.C. § 1153. ⁵

Appellant Leonard Levesque argues that, even so, the district court erred by sending to the jury the question whether the locus constituted a dependent Indian community. In this he may well be correct. This was not a case where there was a factual dispute over where the crime occurred. The only question was whether the government's unrebutted evidence about the nature of the area, the make-up of the population, and the community's relationship with the federal government, revealed a dependent Indian community. Whether the crime occurred in Indian country was thus a jurisdictional fact susceptible of determination without reference to any of the facts involved in determining defendants' guilt or innocence. See United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1560, 23 L.Ed.2d 94 (1969).

But even assuming the court itself should have decided whether or not the locus was in Indian country, its error in submitting the issue to the jury does not, on this record, provide cause for reversal. Defendants did not, as was required, object to submitting the matter to the jury, nor were the jury instructions given based on an incorrect legal standard. Fed.R.Crim.P. 30. The undisputed evidence of record, moreover adequately shows that the alleged crime occurred in a dependent Indian community. See note 5, supra. We therefore find neither plain error nor any such error of law as would lead us to vacate the convictions on the ground that section 1151 jurisdiction was lacking.

2. Objections to Conduct of Trial

Raynard Levesque took the stand in his own behalf and towards the conclusion of direct examination was asked by his own counsel whether he had been convicted of larceny in the tribal court in...