St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 91 to 100

Page [91.]

Governor Kunin's 1990 Executive Order establishing the Governor's Advisory Commission on Native American Affairs:

STATE OF VERMONT

EXECUTIVE DEPARTMENT

EXECUTIVE ORDER

WHEREAS, It is the public policy of the State of Vermont to recognized the historic and cultural contributions of Native Americans to the State and to protect and strengthen that heritage by assuring that the problems and concerns of Native Americans are addressed in state policy, programs and actions;

NOW THEREFORE, BE IT RESOLVED that I, Madeleine M. Kunin, by virtue of the authority vested in me as Governor of the State of Vermont, do hereby establish the Governor's Advisory Commission on Native American Affairs:

1) The Commission shall be comprised of seven members, appointed as follows:

Three members shall be appointed by the Abenaki Tribal Council, with the approval of the Governor, for terms of two years. In order to provide for overlapping terms, two members from this group shall be appointed initially for one-year terms.

Three members shall be appointed by the Governor from the public, for terms of two years. In order to provide for overlapping terms, two members from this  group shall be appointed initially for one-year terms.

One member shall be appointed by the Governor from a list of three or more candidates from the public, compiled by the Division for Historic Preservation, after consultation with the Abenaki Tribal Council and other interested parties, to serve a two-person term as Chairperson of the Commission.

2) Recognizing the responsibility and jurisdiction of coordinate branches of government, the Commission shall act in advisory capacity to the Governor and may:

Study problems and issues and make recommendations to the Governor relating to the cultural, educational, and economic concerns of the Native American residents of the State of Vermont.

Study how state agencies can recognize the contributions of Native Americans to the heritage and culture of the State, and make recommendations to the Governor as to how state agencies can support and enhance those contributions through policy and programs.

Recommend to the Governor actions that will facilitate communication with, and the exchange of information about, Federal, state, or other government programs or information that may assist Native Americans in the State culturally, educationally, or economically.

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Recommend to the Governor actions that will protect archaeological and other physical artifacts, sacred and traditional places, and cultural traditions of Native American's in the State.

3) The Commission shall meet at the call of the Chairperson, and members of the Commission shall be reimbursed for mileage expenses incurred in travelling to and from Commission meetings, pursuant to paragraph 4 below.

4) The Division for Historical Preservation shall provide mileage reimbursement to the Commission, as instructed by the Chairperson. The Division may also provide administrative support to the Commission, as instructed by the Chairperson, in so far as the Division determines that adequate funds and staff are available.

5) The Commission may seek and receive funding from federal or other sources to assist it in its work, as approved by the Governor.

6) The Chairperson of the Commission shall regularly advise the Governor of the Commission's deliberations and recommendations.

7) Except for action 5 of the Executive Order #3 of Governor Richard A. Snelling dated January 28, 1977, said Order is hereby rescinded.

8) Nothing in this Executive Order shall be construed as according official recognition to any Native American tribe or tribal entity.

This Executive Order takes effect upon signing.

IN WITNESS MY NAME HEREUNTO

subscribed and the Great Seal of the State of Vermont

hereunto affixed, at Montpelier this 22, day of November,

A.D. 1990.

Madeleine May Kunin

Governor

By the Governor:

Kathleen C. Hoyt

Secretary of Civil and Military Affairs

Executive Order #97

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The 2006 Abenaki Recognition Bill (S.117):

NO. 125. AN ACT RELATING TO STATE RECOGNITION OF THE ABENAKI PEOPLE

(S.117)

It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 1 V.S.A. chapter 23 is added to read:

CHAPTER 23. ABENAKI PEOPLE

§ 851. FINDINGS
The general assembly finds that:
(1) At least 1,700 Vermonters claim to be direct descendants of the several indigenous Native American peoples, now known as Western Abenaki tribes, who originally inhabited all of Vermont and New Hampshire, parts of western Maine, parts of southern Quebec, and parts of upstate New York for hundreds of years, beginning long before the arrival of Europeans.
(2) There is ample archaeological evidence that demonstrates that the Missisquoi Abenaki were indigenous to and farmed the river floodplains of Vermont at least as far back as the 1100s A.D.
(3) The Western Abenaki, including the Missisquoi, have a very definite and carefully maintained oral tradition that consistently references the Champlain valley in western Vermont.
(4) Many contemporary Abenaki families continue to produce traditional crafts and intend to continue to pass on these indigenous traditions to the younger generations. In order to create and sell Abenaki crafts that may be labeled as Indian- or Native American-produced, the Abenaki must be recognized by the state of Vermont.
(5) Federal programs may be available to assist with educational and cultural opportunities for Vermont Abenaki and other Native Americans who reside in Vermont.
§ 852. VERMONT COMMISSION ON NATIVE AMERICAN AFFAIRS ESTABLISHED; AUTHORITY
(a) In order to recognize the historic and cultural contributions of Native Americans to Vermont, to protect and strengthen their heritage, and to address their needs in state policy, programs, and actions, there is hereby established the Vermont commission on Native American affairs (the “commission”).
(b) The commission shall comprise seven members appointed by the governor for two-year terms from a list of candidates compiled by the division for historic preservation. The governor shall appoint a chair from among the members of the commission. The division shall compile a list of candidates’ recommendations from the following:
(1) Recommendations from the Missisquoi Abenaki and other Abenaki and other Native American regional tribal councils and communities in Vermont.
(2) Applicants who apply in response to solicitations, publications, and website notification by the division of historical preservation.
(c) The commission shall have the authority to assist Native American tribal councils, organizations, and individuals to:
(1) Secure social services, education, employment opportunities, health care, housing, and census information.
(2) Permit the creation, display, and sale of Native American arts and crafts and legally to label them as Indian- or Native American-produced as provided in 18 U.S.C. § 1159(c)(3)(B) and 25 U.S.C. § 305e(d)(3)(B).

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(3) Receive assistance and support from the federal Indian Arts and Crafts Board, as provided in 25 U.S.C. § 305 et seq.
(4) Become eligible for federal assistance with educational, housing, and cultural opportunities.
(5) Establish and continue programs offered through the U.S. Department of Education Office on Indian Education pursuant to Title VII of the Elementary and Secondary Education Act established in 1972 to support educational and cultural efforts of tribal entities that have been either state or federally recognized.
(d) The commission shall meet at least three times a year and at any other times at the request of the chair. The agency of commerce and community development and the department of education shall provide administrative support to the commission.
(e) The commission may seek and receive funding from federal and other sources to assist with its work.
§ 853. RECOGNITION OF ABENAKI PEOPLE
(a) The state of Vermont recognizes the Abenaki people and recognizes all Native American people who reside in Vermont as a minority population.
(b) Recognition of the Native American or Abenaki people provided in subsection (a) of this section shall be for the sole purposes specified in subsection 852(c) of this title and shall not be interpreted to provide any Native American or Abenaki person with any other special rights or privileges that the state does not confer on or grant to other state residents.
(c) This chapter shall not be construed to recognize, create, extend, or form the basis of any right or claim to land or real estate in Vermont for the Abenaki people or any Abenaki individual and shall be construed to confer only those rights specifically described in this chapter.
Sec. 2. EFFECTIVE DATE; APPOINTMENTS TO COMMISSION 
(a) This act shall take effect on passage.
(b) The governor shall make appointments to the commission no later than 90 days after the effective date of this act.
Approved: May 3, 2006

Page [95.]

Special Sites Burial Fund Reference

TO:
Senate Committee oil General Affairs House Committee on General, Housing and Military Affairs Governor's Advisory Commission on Native American Affair's
FROM:
John S. Hall, Commissioner
Department of Housing and Community Affairs
DATE: February 18, 2003
RE: Unmarked Burial Site Fund Report

The Commissioner of the Department of Housing and Community Affairs (DHCA) is issuing this report oil the Unmarred Burial Site Fund to the Senate Committee on General Affairs, the House Committee oil General, Housing and Military Affairs, and the Governor's Advisory Commission oil Native American Affairs pursuant to Section 58, Act No. 149 (2002 Adj. Session). The statute required a report on the following:

1.) The fund balance, including the sources of deposits

A Capital Bill line item of $50,000 was appropriated to the Fund for use in FY2003. The current fund balance is $15,000.

2.) Disbursements that have been made from the fund, the municipality for which the disbursement was made, and a description of the process used or implemented by the municipality to protect unmarked burial sites or property owners, or by both.

The Department of Housing and Community Affairs disbursed $35,000 from the fund to the Vermont Land Trust for use as part of the cost of acquisition cost of the Auger Property Oil Monument Road in Highgate. The Commissioner at that time, Gregory Brown, determined that the town of Highgate met the requirements for the use of the funds within its boundaries. The Auger property is surrounded on three sides (the fourth being the Missisquoi River) by property acquired by the State of Vermont over a period of several years to protect known or assumed Native American burial sites. In the professional opinion of Division for Historic Preservation archaeologists and other professional archaeologists, there is no doubt that there are similar unmarked burial sites on the Auger property. In the interest of protecting such burial sites and preserving and improving relations between Native Americans and property owners along Monument Road, the Vermont Land Trust negotiated the purchase of the property from Wilfred Auger's estate upon his depth in 2002. DHCA granted the $35,000 to the Vermont Land Trust. for this purpose. A copy of the grant agreement is attached to this report.

3.) Management processes implemented by municipalities that are designed to protect unmarked burial sites, preserve Native American human remains and protect the rights of owners of property on which unmarked burial sites evict or are suspected to

Page [96.]

exist an evaluation of the effectiveness of these processes and a description of the actions taken by the Division for Historic Preservation to encourage and support appropriate municipalities to design such a process.

 

The municipalities and Swanton and Highgate have developed policies on addressing unmarked burial sites. Town officials worked with property owners and representatives from the Abenaki community to develop the procedures for identification and protection. Highgate and I believe Swanton have adopted interim zoning on Monument Road to address ground disturbance concerns. The Division has focused on the Auger property purchase and worked with the Vermont Land Trust to develop a base map identifying known burial sites on Monument Road. We have also, in partnership with the Natural Resource Conservation Service and land owners undertaken a remote sensing (ground penetrating radar) project on selected Monument Road properties to assess feasibility of identifying unmarked burials using non-ground disturbing methods. The project was partially successful and resulted in recommendations for improving this methodology.

 

4.) Improvements made to facilitate access to and communications with the Governor's Advisory Commission on Native American Affairs, including assuring publication of telephone and fax numbers and postal and email addresses in local and state directories, improve access to the Governor's Advisory Commission on Native American Affairs.

 

The Governor's Advisory Commission on Native American Affairs will be listed in the soon-to-be published revised Vermont State Government Directory and will be in the online directory as well. The Commission is also listed as a link on the Vermont Division for Historic Preservation's web site.

 

5.) The status of any rulemaking initiated or completed pursuant to this act.

 

To date, no rulemaking has been initiated.

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2001 Joint Resolution 62 Recognizing Chief Homer St. Francis:

 

State of Vermont

House of Representatives

Montpelier, Vermont

Joint House Resolution

J.R.H. 162

 

Joint resolution in memory of Abenaki Chief Homer St. Francis

Offered by: Representatives Obuchowski of Rockingham, LaVoie of Swanton and Winters of Swanton

Whereas, Homer St. Francis was a descendant of Abenaki Chief Graylocks, and

Whereas, he honorably served in the United States Navy, the Marine Corps and Vermont National Guard, and

Whereas, after completion of his active duty military service, Homer St. Francis dedicated his life to the reawakening of the long-suppressed Abenaki culture and political structure, and served as chief until his passing, and

Whereas, his leadership was highlighted by two terms of service as Chief of the St. Francis-Sokoki Band of the Abenaki Nation of Missisquoi from 1974-1980 and from 1987-1996, and

Whereas, he was a passionate advocate on behalf of his band, and sought, albeit without success, to promote its identity through distinctive systems of automotive and fishing licensing, and

Whereas, while he did not either achieve either federal or permanent state recognition for the Abenaki, Homer St. Francis empowered his tribe in a manner it had not experienced since the first Europeans settled in Vermont, and

Whereas, Homer St. Francis triggered an awareness of Abenaki history among the citizens of Vermont, and

Whereas, his death marks the passing of Vermont's leading defender of Native American rights, and

Whereas, the respect that Homer St. Francis had engendered in many quarters was symbolized by the attendance at his funeral of leaders in state government and representatives from many Native American tribes in the northeastern United States, and

Whereas, Homer St. Francis will be remembered as a determined Abenaki leader who has never deterred from promoting the advancement of his people, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly extends its sincere condolences to the family of former Abenaki Chief Homer St. Francis, and be it further

Resolved: That the Secretary of State be directed to send a copy of this resolution to his daughter, Chief April Rushlow in Swanton.

_________________________

Speaker of the House

_________________________

President of the Senate

 

Attested to:

Donald G. Milne

Donald G. Milne

Clerk, House of Representatives

 

VT LEG 145918.1

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United States Department of Agriculture         USDA

NRCS ... Natural Resources Conservation Service

617 Comstock Rock, Suite 1, Berlin, Vermont 05602-8498

Tel. 802-828-4493

Date: June 15, 2000

To: All Employees

From: John Titchner, State Conservationist

Re: Assistance to Help the Abenaki Rebury Ancestral  Remains

Many of you may have recently heard of the human remains that were exposed during excavation of a cellar hole for a new house being constructed along the Missisquoi River in Highgate. This property adjoins the Monument site for those of you that attended the All Employees Day in 1995.

At least four Abenaki burials have been exposed and more remains are expected to be found in the back dirt. Yesterday the State of Vermont purchased the property from the landowners to protect the site from further disturbance and it is now time to restore the cemetery site. The Abenaki have asked the NRCS for assistance to help them collect human remains and any grave goods that may have been interred with the deceased. The Abenaki will then bundle the remains together according to tradition for a re internment ceremony. Dave Skinas will be organizing our involvement in the effort that is expected to begin during the week of June 19, 2000 and may continue into the following week. I realize that this is an extremely busy time of year for everyone but if you could help Dave Skinas it would be greatly appreciated by NRCS and the Abenaki nation. As well as an excellent cultural resources awareness opportunity your assistance will be highly regarded by the Abenaki people.

Please contact Dave Skinas at 828-4493 for more details and directions to the site if you are interested in devoting some time to this effort.

______________________________

The Natural Resources Conservation Service works in partnership with the American people to conserve and sustain natural resources on private lands.

An Equal Opportunity Employer

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USDA

 United States

Department of Agriculture

Natural Resources Conservation Service

617 Comstock Road, Suite 1

Berlin, VT 05602-8498

Phone: 802-828-4493

Fax: 802-223-6163

Date: August 18, 2003

To: Fran Keeler, State Conservationist

From: David Skinas, Archaeologist D.S.

Re: Reappointment to the Governor's Advisory Commission on Native American Affairs

____________________________

On May 29, 2003 Governor Jim Douglas reappointed me to the Governor's Advisory Commission on Native Americans. I write this memo to assure you that this appointment will not create a 'conflict of interest' with my NRCS duties or any USDA programs. This commission is charged with advising the governor on Native American issues in Vermont and consists of six members and the chair, all serving a two year appointment. Three members are appointed by the Governor and three members are chosen by the Abenaki tribal council which the governor then approves. The Abenaki tribal council norminated me to one of their available three positions.

This commission does not receive grants, write grants or distribute funds and has no financial interests in any organization. They do not participate in any fundraising or membership activities for any organization. Their role is entirely advisory to the governor and the Abenaki tribal council. The Commission makes recommendations about improving economic self-sufficiency, cultural enrichment, health coverage and educational initiatives such as developing a Native American curriculum for public schools. As an NRCS employee my first and foremost responsibility is in the interest of NRCS and the federal government. Commission members do not vote but reach consensus on matters important to the Abenaki community. If consensus of a particular issue is required that remotely hints of a conflict of interest I will withdraw from the discussion.

My role will be to advise the commission on cultural resources issues that affect the Abenaki and other Native Americans in Vermont. I will provide technical assistance only and will not be involved in any policy related issues. Our first charge is to help the state and Abenaki tribal council implement a policy on how to respectfully identify and protect Native American burial sites located in the Swanton-Highgate area and Alburg. I am sure you remember the unfortunate incident that occurred in the summer of 2000 when excavation of a house foundation disturbed at least 27 Abenaki burials. This burial policy will also be used throughout Vermont which will provide NRCS with clear guidelines on how to treat burials when they are accidentally exposed during installation of conservation practices.

This appointment will also help me better serve as the Native American Indian Emphasis Program Manager because I will have a direct link to tribal members to distribute information about grants, scholarships and employment opportunities that are provided to me by our National Special Emphasis Program Manager.

United States Department of Agriculture     USDA

Natural Resources Conservation Service

617 Comstock Road, Suite 1
Berlin, VT 05602-8498
Phone: 802-828-4493

March 20, 2008
Chief April St. Francis-Merrill
Abenaki Nation Tribal Council
Box 276
Swanton, Vermont 05488

Re: FY07 and FY08 NRCS Conservation Projects Planned in Franklin County.

Dear Chief April:
Enclosed are Practice Description Forms for USDA Natural Resources Conservation Service (NRCS) projects planned in Franklin County. I send these projects for your review to comply with Section 106 of the National Historic Preservation Act, as amended, but more importantly I submit these practices to you in a spirit of cooperation to endure that any burial sites or other heritage resources important to the St. Francis-Sokoki band of the Abenaki Nation of Missisquoi will be considered during planning. Please let me know if there are any traditional cultural properties, sacred sites or other important resources located within or near the area of potential effect that concerns you or other community members.
If you would like to discuss these projects or other cultural resources issues please call me at 828-4493 ext. 102 and my cell is 802-233-0526. The NRCS and I look forward to continue working closely with you and the Abenaki Nation of Missisquoi to help protect your valuable and irreplaceable cultural heritage.

Sincerely,
David Skinas
David Skinas
Archeologist

Enclosures

St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 80 to 90, Etc:

Page [80.]

whites." Mitchel 34 U.S. at 346; see United States v. Seminole Indians, 180 Ct. C1. 375, 385-86 (1967) (determination of occupancy of definable territory necessary to support aboriginal title depends on the manner of land use over a period of time with dominion over the land as the dispositive criterion). In accordance with Mitchel and Seminole, this court's determination of whether the Missisquoi exclusively occupied and used a definable territory must be made in light of their lifestyle. The evidence established that for thousands of years, the Missiquoi inhabited a village which centered on the lower Missisquoi River and spread into the surrounding areas now known as Highgate and Swanton. FF. 97. Since 9300 B.C., the Missisquoi River watershed into Quebec and over to Lake Memphramagog, down into Missisquoi Bay, Alburg, the Champlain Islands, St. Albans, Swanton, Highgate, Fairfield, Fairfax, Georgia, Sheldon, Fletcher, and Northern Milton. (hereinafter "Missisquoi territory"). FF. 96. There is evidence of Missisquoi cultivation in some areas since 1123 A.D. FF. 7,60. Consequently, the court concludes that the Missisquoi's hunting, fishing, cultivation and settlements in the above named areas satisfies the occupancy and use requirement necessary to create aboriginal title in the Missisquoi territory.
The Court of Claims has considered the exclusive use and occupancy requirement as to other Native Americans. Six Nations, etc. et al. v. United States, 173 Ct. C1. 899, 910 (1965). The appeals court held that the evidence relied upon by the lower court was sufficient to support its determination that the Six Nations did not have the necessary

Page [81.]

exclusive use and occupancy of a particular area. The lower court relied upon evidence that Six Nations had not settlement in the contested area or nearby, that other Native Americans lived intermittently in the area and passsed through the area, that other Native Americans used the land, as much or more than the Six Nations and that the Six Nations used the area at most as a transitory passageway in common with other tribes. Id. at 910.

As to the exclusivity of the use of the Missisquoi territory, the court concludes that the Missisquoi occupied and used the Missisquoi territory to the exclusion of other tribes. No other tribes inhabited the Missisquoi territory or otherwise used or occupied the territory. The Missisquoi exercised dominion and control over the Missisquoi territory to the exclusion of other tribes. FF. 8.

The State contends that Native Americans' aboriginal title has two additional elements. First, use and occupancy of the land must be exclusive of whites. Second, there must be continuous exclusive use and occupancy of the land from which the establishment of the aboriginal rights until the present. The court disagrees with both of these propositions.

According to the United States Supreme Court the exclusivity element of the standard for creation of aboriginal title refers to other Native Americans not whites. As discussed previously, the Santa Fe Court stated taht the Walapais must have occupied a definable territory exclusive of other wandering tribes. Sante Fe at 345. Four years later in 1945, the Court confirmed that exclusivity referred to other Native Americans. Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 338 (1945). In Northwestern, the Court stated that a group of Native Americans may claim aboriginal title

PAGES 52 AND 53 OF THE ACTUAL WOLCHIK DECISION

NOT INCLUDED IN THE APPLICATION REVIEW.

Page [82.]

the Missisquoi, or as a result of their long land use and occupancy of the Missisquoi territory to the exclusion of other tribes, held aboriginal title and aboriginal fishing rights in the Missisquoi territory.

It is a settled principle that Native American's aboriginal rights are "as sacred as the fee simple of whites." Sante Fe, 314 U.S. at 345; Oneida II, 470 U.S. at 235 citing Mitchel et al. v. United States, 34 U.S. at 746. The continued existence of Native Americans' aboriginal rights is not dependent o nrecognition by treaty, statute or other formal government action. Oneida II, 470 U.S. at 236; Cramer, 261 U.S. at 229; United States v. Kent, 679 F.Supp. 985, 987 (E.D. Ca. 1987); Lipan, 180 Ct. Cl. at 492. Aboriginal rights are "entitled to the respect of all courts until it (they) should be legitimately extinguished..." Johnson, 21 U.S. at 592; see Worcester v. State of Georgia, 31 U.S. (6 Pet.) 405, 428 (1832).

Aboriginal rights are not perpetual; they may be extinguished by a number of different methods. Extinguishment can be accomplished by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy or otherwise." Santa Fe, 314 U.S. at 347 citing Beecher v. Wetherby, 95 U.S. 517, 525 (1877).

However, notwithstanding the method of extinguishment, that a predecessor sovereign or Congress intended the extinguishment of aboriginal title must be clear and unambiguous. Santa Fe at 345-6, 353; (no clear and plain indication that Congress intended to extinguish aboriginal title); United States v. Gemmill, 535 F.2d. 1145, 1147 (9th Cir. 1976) (government must clearly intend to extinguish aboriginal title); Lipan at 492 (citations omitted) ("While the selection of the means is a governmental perogative, the actual act

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(or acts) of extinguishment must be plain and unambiguous.") The requirement that extinguishment must be clear and unambiguous is apparent from the often cited rule that extinguishment will not be lightly implied. Menomiee Tribe v. United States, 391 U.S. 404, 413-14 (1968) (the intention of Congress to extinguish aboriginal rights will not be "lightly imputed"). Santa Fe at 354 "[(A)n extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards"]; accord Gemmill at 1147; Gila River Pima Maricopa Indian Commission v. United States, 494 F.2d. 1386, 1391 (Ct. Cl. 1974); Turtle Mountain Band of Chippewa Indians v. Unites States, 490 F. 2d. 935, 946 (Ct. Cl. 1974).

Extinguishment can also be accomplished by Native Americans' abandonment of their rights or by their cession of their rights. Mitchel, 34 U.S. at 746. "Abandonment" is defined as "the surrender or cession of property or rights; voluntary relinquishment." Black's Law Dictionary 2 (1979). The Missisquoi, however, never voluntarily abondoned any portion of their Missisquoi territory. FF. 56. The State's contention that the Missisquoi ceded their title and rights in the Missisquoi territory is addressed in section 2.

The State contends that this court cannot inquire into the means or the proprietariness of the act asserted to extinguishment aboriginal title. The State is correct that "[t]he manner, method, method and time of such extinguishment raise political not justiciable, issues", and the justness of an extinguishment is not open to inquiry in the courts Sante Fe at 347. Rather, the only issue this court is concerned with is whether any one of the various sovereign's actions clearly imply the sovereign's intent to extinquish aboriginal title. See United States v.

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Gemmill, 535 F.2d. 1145, 1148 (9th Cir. 1976) (the relevant question is whether governmental action was intended action was intended as extinguishment not whether extinguishment was effected by permissible means). Accordingly, this court is only concerned with whether or not extinguishment occured. Ftnt. 9.

The State also contends that that a sovereign state must have recognized aboriginal title or rights prior to the states' admission to the union if they are to be afforded federal protection. The cases cited by the State for this proposition are either distinguishable or against the weight of authority. The weight of authority takes a nearly opposite approach. As the court noted earlier, aboriginal title and rights, once established in fact, exist until extinguished or abandoned. Infra at 54-55. As one court stated, in discussing the proper posture in which to view aboriginal rights in relation to a sovereign republic not yet admitted to the Union, "Indian title based on aboriginal possession does not depend upon sovereign recognition or addirmative acceptance for its survival .... The correct inquiry is, not whether the Republic of Texas accorded or granted the Indians any

______________

Ftnt. 9. This court concludes that whether or not extinguishment occured is a justiciable question based on the precendent of the numerous courts who have decided this question. United States courts have adjudicated claims involving Indian claims and extinguishment where the argument is that extinguishment occured prior to the adoption of the United States Constitution; see Mitchel; United States v. Clarke, 33 U.S. (8 Pet.) 436 (1834); United States v. Arredondo, 31 U.S. (6 Pet.) 691 (1832), Johnson; and several cases where extinguishment allegedly occured before the Constitution was applicable and again, after the Constitution was applicable. See Oneida II; Oneida I; Santa Fe; United States v. Dann, 706 F.2d. 919 (9th Cir. 1983) rev'd on other grounds 470 U.S. ___ (198_); United States v. Atlantic Richfield Co., 435 F.Supp 1009 (1977); Lipan; 180 Ct. Cl. 492.

Page [85.]

rights, but whether that sovereign extinguished their pre-existing occupancy rights." Lipan 180 Ct. Cl. at 492.

The State argues that extinguishment of aboriginal rights can be accomplished by government acts and policies which imply the governments' intent that the land be used for purposes contrary to the Native Americans' possessory rights in accordance with the Santa Fe Court's statement that extinguishment could be accomplished by the "exercise of complete dominion adverse to the right of occupancy." Santa Fe, 314 U.S. at 347, Although the cases cited by the State do support the proposition that government intent to extinguishment can be implied from such acts, nearly all of the courts relied on a series of acts to ensure extinguishment was intended. United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976); United States v. Kent, 679 F.Supp. 985 (E.D.Cal 1987). This reliance inidicates that the courts were not convinced that a grant of land which was adverse to aboriginal rights qualified as an act which clearly and unabiguously implied the sovereign's intent to extinguish aboriginal title and rights. See Gemmill at 1149 (any one of these actions, including a designation of the land as federal reserve land, is insufficient by itself to unequivocally demonstrate extinguishment).

Although the Kent and Gemmill courts did consider governmental inclusion in federal forest reserves of land subject to aboriginal rights as one factor in determining whether aboriginal rights were extinguished, neither of the courts held that extinguishment was implied from that factor alone. In Kent, the court also considered the tribe's failure to make a timely claim under a federal statute and compensation to the tribe for the land. Kent at 987. In Gemmill, the

Page [86.]

2. Extinguishment of Aboriginal Title by the English.

The State did not prove by the preponderance of the evidence that the English sovereign, while in control of the Missisquoi territory, engaged in any act which clearly implied that the English sovereign intended to extinguish the Missisquoi's aboriginal rights to the Missisquoi territory. Specifically, the following acts did not clearly imply the English sovereign's intent to extinguish the Missisquoi's aboriginal rights: a) the 1763 Wentworth grants, b) the 1766 meeting at Isle La Motte and c) the New York governors' grants to Simon Metcalfe and the proprietors of the Prattsburgh grant. Nor was extinguishment accomplished by any of the other acts asserted by the State.

a) Governor Wentworth's 1763 grants:

First, the court considers whether Governor Wentworth's three August 1763 grants of land within the Missisquoi territory are acts clearly and unambiguously implying the English sovereign's intent to extinguish the Missisquoi's aboriginal rights in their Missisquoi homeland. The three grants, commonly known as the Swanton grant, the Highgate grant and the St. Albans grant, will be addressed collectively as "Governor Wentworth's grants" hereinafter. FF. 115.

The State concedes, although official acts within the subject matter jurisdiction bestowed upon an official are binding, a challenge to the act may be made on the basis that the official acted beyond his authority. United States v. Arredondo, 31 U.S. (6 Pet.) 691, 729

Page [87.]

(1832). See also, United States v. Clark, 33 U.S. (8 Pet.) 436, 451-2 (1834) (although a grant, if an act within a public officer's duty as assigned by king, is prima facie within his power, the Court would still hear argument that grant was invalid because officer acted beyond the power conferred upon him.) Therefore, this court can review whether or not Governor Wentworth's grants were within his authority, as a question of whether of extinguishment occured, without treading on nonjusticiable matters.

Governor Wentworth's authority was limited, in part, by England's Native American policy as manifested in several royal communications. FF. 114. If Governor Wentworth's grants were consistent with his authority as limited by this policy, his grants could conceivably be considered to imply English intent regarding Native American matters.

If, however, Governor Wentworth's grants are not consistent with his authority in that they violated England's Native American policy, then this court cannot consider Governor Wentworth's grants as acts which implied English intent regarding Native American matters. This court concludes that Governor Wentworth's grants were not within his authority as limited by English Native American policy, and therefore, are not acts which imply English intent much less acts which clearly imply  the English sovereign's intent to extinguish the Missisquoi's aboriginal title to the Missisquoi territory. Because the question of whether Governor Wentworth's grants extinguish aboriginal title is resolved by the English Native American policy's limitations on the Governor's authority to grant land, this court need not decide whether the Missisquoi territory was located outside the geogprahic boundaries

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of the Governor's jurisdiction in 1763 and thereby, beyond his authority.

English policy towards Native Americans originates with the Articles of Capitulation, is later reflected in the 1763 Treaty of Paris, and is subsequently manifested by a general Native American policy formally set out in a royal proclamation and royal instructions. In commenting on English relations with Native Americans, the United State's Supreme Court stated:

[o]ne uniform rule seems to have prevailed from their first settlement, as appears by their laws; that friendly Indians were protected in the possession of the land they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them as their common property from generation to generation, not as the right of individuals located on particular spots. Mitchel, 34 U.S. at 744.

As the Missisquoi were not enemies of the English, this uniform rule generally describes the English attitude towards the Missisquoi and the land they occupied. Ftnt. 13.

England's formal relationship with the Missisquoi was first defined by the Article of Capitulation. The Articles of Capitulation signed in 1760, marked the end of hostilities between the French and the English in the French and Indian War. Ftnt. 14. FF. 107. In accordance with Article XL, the English agreed that the Native American allies of the French King would be maintained in the lands they

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Ftnt. 13. Although the Missisquoi sided with the French during the French and Indian War, after the French defeat and the English succession to power in 1763 there is no evidence that the English viewed the Missisquoi as unfriendly.

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inhabited and not be molested for their support of the French King. FF. 107. The Missisquoi, as allies of the French King, fall within the protection of Article XL. Id. Under the Articles of Capitulation, the English were bound to treat the Missisquoi honorably and fairly. Id. Therefore, from the start of their formal relations with the Missisquoi, the English agreed to maintain the Missisquoi in their Missisquoi homeland, treating them honorably and fairly.

The Articles of Capitulation were followed up by the 1763 Treaty of Paris, which formally ended the French and Indian War. FF 108. The 1763 Treaty of Paris had the same purposes as the Articles and dealt with the Missisquoi and their homeland in the same manner. Id.

In the mid 18th century, the English formulated a general Native American policy that is prescribed in a royal proclamation, royal instructions and directions. FF. 110. The Crown learned from both its own and France's experience that peaceful relations with the Native Americans were necessary to the colonies' security and consequently, in the Crown's best interest. FF. 110-13. Motivated by its interest in avoiding conflict with the Native Americans, the Crown wanted to ensure that any acquisition of Native American land be carried out in an orderly fashion, by specific procedures, including treaties made by

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Ftnt. 14. The French were the "discoverers" of the Misssquoi territory and, therefore had the power to extinguish aboriginal rights. Although there was some evidence that French grants were made in the Missisquoi territory, the State did not assert that extinguishment occured under the French reign. Consequently, the Missisquoi's aboriginal rights were intact when England acquried the French territory which included the Missisquoi homeland.

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assemblies of the affected Native Americans. FF. 110, 112-13.

Apparently, the Crown also sought to maintain peaceful relations with the Native Americans by explicitly reserving land for them and protecting those rights from encroachment. FF. 112-13. See Johnson, 21 U.S. at 597. (England attempted to preserve peace with the Indians by quieting their alarms about their property by restraining white encroachment).

Royal communications by the Crown, including the Royal Instructions of 1761 and the Royal Proclamation of 1763, expressed this policy. FF. 112-13. The Royal Instruction of 1761 and the Royal Proclamation of 1763 had the effect of law in the colonies. See, United States v. Arredondo, 31 U.S. (6 Pet.) 691 at 713 (1832) (the instructions of the king to his governors are the supreme law superceding previous inconsistent ones.) Both the Royal Instruction and the Royal Proclamation prohibited royal governors, including Governor Wentworth, from making grants to certain lands. Id. Ftnt. 15.

Consequently, royal governors' grants were with their authority only if they were inconsistent with the Royal Instruction and the Royal Proclamation.

The Crown's 1761 Royal Instruction to several royal governors, including those of New Hampshire and New York, manifests England's

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Ftnt. 15. Dr. Calloway also concluded that Governor Wentworth's authority to grant land was restricted by the Royal Instruction of 1761 and the Royal Proclamation of 1763. C I at 93; C III at 80-2.

Obviously, there is MORE to the actual Judge Joseph J. Wolchik FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER; yet the allegedly "idnependent" scholar, Dr. Frederick Matthew Wiseman, PH.D. clearly "edited" the material to "selectively" address only the "good parts" that put the Missisquoi group in a "good light" judicially, socially and historically speaking. WHY? I surmise that the "other" pages of the Wolchik Decision were not valid, important or entertaining enough to use in this Application for State of Vermont Abenaki" "Recognition"?

It would appear that "the missing pages" of this Joseph J. Wolchik Decision (of August 1989), is not merely made accidentally; It is rather a seemingly "slight of hand" tactic in which to allegedly "prove", that the Missisquoi "Abenakis" and the group of which Mr. Wiseman PH.D. himself belongs to, are legitimate.

I think not.

Anyone care to read the Raleigh Elliott October 1991 Decision?

LINK: http://law.justia.com/cases/vermont/supreme-court/1991/op90-512.html

How about the Attorney General's (William Sorrell and Eve Jacobs-Carnahan) Response to the St. Francis/ Sokoki "Band of Abenakis" Petition For Federal Acknowledgement? ... or the Bureau of Indian Affairs O.F.A. Decisions of November 09, 2005 and or the June 22, 2007 FINAL REPORT regarding Mr. Frederick M. Wiseman PH.D., John S. Moody, and the bunch up in Swanton, Franklin County, Vermont led by April A. (St. Francis) Merrill?

St. Francis/Sokoki Missisquoi Abenaki Application For Vermont State Recognition PAGES 77 to 79, PLUS the MISSING PAGES 33 to 44 of the VT Judge Wolchik Decision of Aug. 1989:

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also provided for one who disguises himself and commits any of the above trespasses, abuses any person or leaves open any gate or fence to an enclosed area.
j. An Act Regulating Fisheries, March 8th 1787, 1787 Vt. Laws at 253; C I., Ex.. 22. This Act prohibits the erection of any structure across any river in the State which obstructs the natural passage of fish, except dams necessary for mills. One who does erect such a structure is guilty of nuisance and subject to a fine.
127. In 1791, the Republic of Vermont settled New York's claims to its lands with a $30,000.00 payment, clearing the way to entry into the Union. C I at 88.
128. The Missisquoi survived as a native American community in their traditional homeland throughout the existence of the Republic of Vermont, living openly and unmolested. C III at 111-112, 146.
129. No explicit acts or expressions of intention to extinguish Missisquoi aboriginal rights by any Vermont, New York, New Hampshire, Quebec, Continental Congress body or the United States federal government exist.
130. It was alien to the Missisquoi culture to go to colonial courts to maintain or vindicate property rights, and, therefore, it was not a viable option. C III at 158.

F. Missisquoi population figures
131. Using varying indirect methods of estimation, e.g. numbers Of houses times estimated number of people per house, the experts show1

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a Missisquoi native American population in the seventeenth and eighteenth century ranging from 200 to 2000 souls, with 750 being a fair estimate. In 1900 it had grown to 1500. As suggested above, the population in the homeland has now grown to as much as 2600. T I at 161, T II at 222, 228, T III at 110, 202, T IV at 46-47, C at 72.

132. The Court takes judicial notice of the following census figures derived from the 1988 Vermont Yearbook. These figures are the latest available* based upon the 1980 census.

Place ... Population
Vermont ... 511,456
Franklin County ... 34,788
Grand Isle County ... 4,613
Alburg ... 496
Fairfax ... 1,805
Georgia ... 2,818
Grand Isle ... 1,238
Highgate ... 2,493
Isle La Motte ... 393
Milton ... 6,829
North Hero ... 442
St. Albans ... 7,308
Sheldon ... 1,618
South Hero ... 1,188
Swanton ... 5,141

133. Eighty to ninety percent of tribal members still live in the 'Missisquoi homeland, while others return regularly. T IV at 73-74.
134. A small neighborhood in Swanton, consisting of several streets and known as Back Bay, has a forty to sixty percent Missisquoi population. T II at 171-172.
135. For a variety of reasons attributable to both the Native Americans and the census process, the Native American census count is it valid from 1790 forward. Moody T III at 154.
136. Though the details are not clear from the evidence, tribal Membership is a function of birth and a formal process of induction. T IV at 72.

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IV at 72.

G. Education, formal governance, employment and related issues

137. The Missisquoi governing body is a tribal council, with members elected by the tribe. T III at 45.

138. Needing a non-profit corporation and finding it inconsistent with tribal sovereignty to incorporate, the Missisquoi formed the Abenaki Self-Help Association, Inc. (ASHAI) in the early 1970's to act as a conduit for federal and other funds. T V at 188, 197.

139. Membership of ASHAI is one hundred percent Missisqoui Abenaki. T III at 45.
140. In order to receive federal funds through the Administration on Native Americans (ANA) an organization must be Native American to the satisfaction of the federal authorities. In 1982 ANA designated ASHAI as one of only ten nationwide grantees. T V at 163, 174.
141. In certain years, ASHAI funneled well in excess of $100,000 into the Missisquoi region, though not all of it was earmarked for Native Americans. The Vermont Housing Finance Agency's neighborhood Self-Help Development Program funds were not Native American specific. T V at 166, 171.
142. Abenaki Acres, a low income housing program was a cooperative effort between the Missisquoi and ASHAI. T V at 124.
143. Other federal program grants which ASHAI has served over the years include:
a. ANA weconomic development grant for the codification of tribal laws and leadership training, which was "almost a formula distribution among Indian people in New England."

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T V at 161.

b. Community Service Administration grant.

c. Community Food Program grant received because Missisquoi accepted as an Indian tribe and organization by the Indian Task Force of the federal regional council in Boston, Massachusetts. T V at 155.

d. Indian Manpower Program. ASHAI was the primary sponsor for Vermont and New Hampshire.

e. Department of Labor JTPA grant, designed for Native Americans and provides employment and training services to the Native American communities in Vermont and New Hampshire. T V at 203.

f. Title IV PART B grant for pre-school/kindergarten through office of Indian Education for Native American children. T V at 170, VI at 35-36.

g. Title IV C grant for adult basic education through the office of Indian Education. "ONly groups that had been accepted as Indian were eligible." T V at 165, T VI at 35-36.

144. Another grant, given to the public school systems in the Franklin Northwest Supervisory Union situated in the Missisquoi homeland, is Title IV A, a grant for services for native American children in the public schools. T VI at 35-36.

145. In 1984-1985, the Missisquoi community was the only one in the United States to get Title IV  Parts: A, B, and C funds. T VI at 35-36.

146. Other than preshool/kindergarten Missisquoi children

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attend the public schools of various towns in the region. T II at 144.

147. The Missisquoi are generally blended into the non-native American work force, are generally of low income, and have a dissproportionately high number of high school dropouts. T II at 147, T VI at 57-58.

148. The problems of poverty and poor education have been characteristic of the Missisquoi sicne the arrival of the Europeans. T IV at 97-98.

H. Genealogies

149. The testimony of John Moody, establishes that all but six of the defendants, Sylvia Wells, Tammy Lee Conger, Richard Rowe, Mark Rushlow, Raleigh Elliot, and Joy Mashtare, have blood relatives traceable back to Missisquoi living in the Missisquoi homeland prior to first European contact. T IV at 112, 119.

150. An overall reading of the testimony of John Moody establishes that the remaining defendants are looked upon at Indian by the Missisquoi Abenakis community.

I. Miscellaneous

151. A large number of local and state police officers testified in this case. From that fact and through judicial notice, we concluded that law enforcement is provided throughout the Missisquoi homeland by town, county, and state authorities. There is evidence to suggest the existence of a Missisquoi law enforcement authority.

152. We take judicial notice of the fact that each of the towns in the Missisquoi homeland is governed in accord with Vermont State law.

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153. There is no evidence to suggest that any authority other than each town providing municipal services to the Missisquoi.

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CONCLUSIONS OF LAW

A. INDIAN COUNTRY.

In State v. St. Francis, No. 84-85, slip op. at 2 (Vt., April 14, 1989), the Vermont Supreme Court framed and briefly analyzed the issues surrounding the so-called "Indian Country" defense advanced by all of the defendants:

[i]f the defendants are Indians and if the alleged offenses occurred, as defendant's claim, in "Indian country,"  as that term is used in 18 U.S.C. 1151 [-1152], the courts of this state would have no jurisdiction...

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."

Defendants in this case make the same concessions and assertions.

1. Defendants' ancestry

The testimony of John Moody has established by a preponderance of the evidence, through the presentation of miticulously prepared genealogies, that all but six of the defendants, namely Sylvia Wells, Tammy Lee Conger, Richard Rowe, Mark Rushlow, Raleigh Elliot, and Joy Mashtare are related by blood to Missisquoi Abenakis who lived in the Missisquoi homeland prior to its discovery by Europeans. His testimony, read as a whole, established that the remaining defendants are recognized as Indian by the Missisquoi Abenaki community. These defendants, therefore, meet the widely accepted definition of an Indian:

[a] person meeting two qualifications: (a) that some of the individual's ancestors lived in what is now the United States before its discovery by Europeans, (b) that the

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individual is recognized as an Indian by his or her tribe or community. F. Conen, Handbook of Federal Indian Law 20; Turtle Mountain Band of Chippewa Indians vs. U.S., 490 F. 2d 935, 942-943 (Ct. C1.1974).

2. Origins and History

Felix Cohen tells us in his Handbook of Federal Indian Law, that "Indian Country"

is a Statutory term used for Indian lands under federal protection. The concept of a seperate territory for Indians within the boundaries claimed by another sovereign date from 1763, and the term "country" was sometimes used to describe such lands. The term "Indian country" appeared in the temporary Trade and Intercourse Acts of 1790 and 1799, int he first permanent Trade and Intercourse Act of 1802, and in the Trading House laws of 1796-1822. Cohen, supra at 29.

The United States Supreme Court dealt with Indian Country concept in two early foundational cases, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and Wocester vs. Georgia, 31 U.S. (6 Pet.) 515 (1832). Recalling these cases in an 1885 opinion that court reflected that "in the opinions in these cases [all Indian tribes] are spoken of as 'wards of the nation', 'pupils', as local dependant communities," United States v. Kagama, 118 U.S. 375, 382 (1885). (emphasis added).

The use of the word "dependent" in this context appears for the first time in an 1823 United States Supreme Court case: "The peculiar situation of the Indians, necessarily considered, in some respects, as a dependent, and in some respects as a dependent... people..." Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543, 598 (1823).

In 1885, when the Supreme Court annoned Kagama, "dependent" was a word that meant solely reliant on the United States government for surivival basics: " Dependent for their daily food. Dependent for their political rights. They owe no allegiences to the States, and receive

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from them no protection. Because of the [?] ill feeling, the people of the States where they are found are often their deadliest enemies." Kagama, 118 U.S. at 384 (emphasis added).

The phrase "dependent Indian communities" is not defined by statute. When Congress included the term it chose to codify "the decision of the United States Supreme Court in United States v. Sandoval, 231 U.S. 28 (1913)." St. Francis, No. 84-550 at 2-3.

Cohen in his handbook agrees:

[i]n the 1948 codification of Indian Country, Congress relied on the Supreme Court's decisions in Donnelly, Sandoval, Pelican, (ftnt. 3) and McGowen, even to the point of codifying the Court's phrase "dependent Indian communities." Thus the intent of Congress, as elucidated by these decisions, was to designate as Indian country all lands set aside by whatever means for the residence of tribal Indians under federal protection, together with trust and restricted Indian allotments. Cohen, supra at 34 (emphasis added).

"Dependent Indian communities" derives from that part of th Sandoval which reads: "long continued and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and duty of exercising a fostering care and protection over all dependent Indian communities within its borders." Sandoval, 231 U.S. at 45-46 (emphasis added).

The "lands" in Sandoval were twenty native American pueblos (communities of stone or adobe houses) with an aggregate population of

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Ftnt. 3. "It must be remembers that the fundamental consideration is the protection of a dependent people." United States v. Pelican, 232 U.S. 442, 456. (1913).

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over eight thousand, [?] pueblo, on [?] consisted of seveteen thousand acres, held in communal fee simple ownership. Each pueblo was a seperate and isolated community. Sandoval, 231 U.S. at 38-39.

Congressed expended federal monies

in presenting them with farming implements and utensils and in their civilization and instruction agents and superintendents have been provided to guard their interests; central training schools and day schools at the pueblos have been established and maintained for the education of their children; dams and irregation works have been constructed to encourage and enable them to cultivate their lands, and sustain themselves; public lands, as before indicated, have been reserved for their use and occupancy where their own lands are deemed inadequate; a special attorney has been employed... [T]hey are dependent upon the fostering care and protection of the Government, like reservations Indians in general. Sandoval, 231 U.S. at 39-41.

For nearly sixty years following Sandoval the case law is nearly devoid (ftnt. 4) of any significant development concerning exercise of federal jurisdiction over dependent Indian communities. Then in 1971 the Tenth Circuit handed down United States v. Martine, 442 F. 2d 1021 (10th Cir. 1971), making room for the expansion of jurisdiction toward as yet undefined outer limites by broadly focusing on a myriad of elements of the physical and social geography of the land in issue. Referring to the federal district court trial the court stated:

[t]he Sandoval case indicates that the proper approach to this problem was followed in this trial. The trial court received evidence as to the nature of the area in question, the relationship of the inhabitants of the area to the Indian Tribes and to the federal government, and the established practise of government agencies toward the area... only after considering all of the various factors we have noted as well as any other relevant factors, can the trial court determine the state of a particular area. The mere presence of a group of Indians in a particular area would undoubtedly not suffice. United States v. Martine, 442 F. 2d 1021, 1023-1024 (1971) (emphasis added).

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Ftnt. 4. See United States v. McGowen, 302 U.S. 535 (1938).

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The inquiry is clearly wide ranging and "the test for determining what is a dependent Indian community must be a flexible one, not tied to any single technical standard such as percentage of Indian occupants." United States v. Mound, 477 F.Supp. 186, 160 (Dist. Ct. D.S. Dakota D.C. 1979).

In that spirit the courts have added other factors for our consideration. The court in United States v. Morgan, 614 F. 2d 166 (8th Cir. 1980) asks us to consider "cohesiveness":

[b]asic to the difinitions of "community" which we have reviewed is the existence of an element of cohesiveness. This apparently can be manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality. Cohesiveness or common interests can be more necessary to the existence of a community than can mere density of population. United States v. Morgan, 614 F.2d at 170. (emphasis added).

The court in United States v. Levesque 681 F.2d 75 (1st Cir. 1982) reviews prior cases and adds a furthe consideration:

[s]ince 1948 the Eighth and Tenth Circuits have had occasion to construe the meaning of "dependent Indian community" as used in 18 U.S.C. sec. 1151. United States v. South Dakota, 665 F.2d 837 (8th Cir. 1980);  Weddell v. Meirhenry, 636 F.2d 211 (8th Cir. 1980); United States v. Martine ... United States v. Mound ... 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. United States v. Levesque, 681 F.2d at 77.

This so-called "ultimate issue" "is a difficult element of the test to prove." St. Francis, No. 84-550 at 3.

Because our Supreme Court in St. Francis cites State v. Dana, 404 A.2d 551 (Me. 1979) as a historical example of how courts have dealt with the dependent Indian community issue, we should pause and address it here. St. Francis at 3. This court considers the anomalous standard

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announced in the case unnecessary to the result, a result which can be justified by applying the tests outlined above. The Dana court states

[t]he decisions establish that ... "dependent Indian community" will include the land in Maine now occupied by the Passamaquoddy Indians if, as a bona fide tribe of Indians, the Passamaquoddies inhabited that land and had "Indian title" to it in 1790 when the Indian Trade and Intercourse Act became law, and if the status of the Passamaquoddies and the nature of their occupancy of the land was the same when the instant crime was committed on it. State v. Dana, 404 A.2d at 562.

Internally the standard is vague. What do "status" and "nature of occupancy" mean? Externally, it would be a rare community that could fit the general thrust of the standard - a people whose world had little changed since 1790. Fortunately for the Passamaquoddy they were able to meet the standard. We agree with the opposing standard set by the Eighth Circuit: "The important consideration is what the land in question is now.... " United States v. South Dakota, 665 F.2d 837, 842 (8th Cir. 1981).

Dana is a thorn between two roses, namely Passamaquoddy v. Morton, 528 F2d 370 (1st Cir. 1975) and United States v. Levesque, 681 F.2d at 75. Dana was decided by the Maine Supreme Court. Passamaquoddy and Levesque are First Circuit federal cases. All three deal with the Passamaquoddy tribe. Passamaquoddy comes before Dana. Levesque came after. Despite the notable decision in Dana, the Levesque court followed the United States v. South Dakota, Meirhenry, Martine and Mound case chain leading back to Sandoval. The thinking in Dana is creative but it only confuses the inquiry, and this court declines to resolve this case by attempting to apply its test.

The fact situation in Levesque is a model for a clean application

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of the Martine test which resulted in a findings of "dependent Indian community." The case was decided on

largely unrebuffed evidence of the three key factors identified in Martine ... nature of area ... assault occurred .. Peter Dana Point located within Indian Township. Except for 6000 acres located elsewhere ... all of Indian Township belonged to the Passamaquoddy Indians, being part of the Passamaquoddy Indian Reservation. As to .... relationship of the inhabitant to Indian tribes, it was shown that 94 percent of the inhabits ... were Passamaquoddy Indians .... As to the relationship of the community with the federal government and the practise of government agencies ... tribe now had the status of a federally ercognized tribe. Levesque, 621 F.2d at 78.

Compare the Levesque fact situation with the one in Weddell, where the Eighth Circuit refused to find a "dependent Indian community".

Weddell was convicted of a grand larceny and burglary of a Coast to Coast store in Wagner, South Dakota... 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 per cent of the Wagner School District budget, the district court found that funding to be proportional 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 amdminister various federal programs for the members of the reservation. Weddell, 636 F.2d at 212-213.

The court went on to say:

[w]e agree with the district court that it would be unwise to expand the definitioin of a dependent Indian community under section 1151 to include a locale merely because a small segement 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. Weddell, 636, F.2d at 213.

The available evidence leads this court to conclude that neither the Missisquoi homeland or any part of it is Indian country. There is no specific piece of land one can point to as being "set aside

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by whatever means for tribal Indians under federal protection." Cohen supra at 34. The thrust of the evidence is that the Missisquoi community is thoroughly mixed if not blended into the non-native American community. Their children attend schools with non-native American children. Those who find work find it with non-native Americans. Municipal police protection is a function of Vermont State government and its subdivisions.

The issue is not whether a tribe whose roots can be traced back to pre-European contact continues to exist within the Missisquoi homeland. We have no doubt but that it does.

The evidence does not establish, however, that at this time the area is "established for the use, occupancy, and protection of dependent Indians." Levesque, 681 F.2d at 77. Clearly, it is established for the use, occupancy, and protection of its mixed population of Native Americans and non-Native Americans, the vast majority of whom are non-Native American. To the extent that this status lends to cohesiveness, it is not the cohesiveness described in Morgan.

These native Americans have and continue to receive substantial help through verious federal programs, but it cannot be said that these programs generally benefit the populous of the Missisquoi homeland as a whole. If we were to assume that the Missisquoi homeland consisted of only St. Albans, Highgate, and Swanton, the 2600 tribal members would comprise only 17.4 percent of the total population. Spread out over the entire homeland the figure would be much smaller. This court agrees that "merely because a small segment of the population consists of Indians receiving varous forms of federal

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assistance," as here, is no reason to find the existence of a dependent Indian community. Weddell, 636 F.2d at 213.

The court concludes that there is no way for the defendents to meet the Martine test on any other acceptable standard for establishing that the Missisquoi homeland or any relevant part thereof is a dependent Indian community. As a result, the court must deny the various motions to dismiss for lack of jurisdiction.

Pages 46 though 49 of the ACTUAL Wolchick Decision are NOT INCLUDED IN THE APPLICATION, nor do I have the pages either.