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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.
