Lead Opinion
Appellant Gipe appeals from his conviction for possessing intoxicating liquors in “Indian country” in violation of 18 U.S.C. § 1156.
Gipe admits to possessing and selling beer at Fort Courage, a shopping area locаted on fee-patented land within the boundaries of an Indian reservation. He maintains, however, that Fort Courage is “a non-Indian community” and thus by statutory definition not Indian country. After an extensive evidentiary hearing, thе district court concluded that Fort Courage is not a non-Indian community. The court explicitly labeled this conclusion a jurisdictional finding lying entirely within the competence of the court, and not a factual issue to be determined by the trier of the fact. Gipe submitted the case to the court on the basis of the record developed at the evidentiary hearing, and the court, without re-examining the non-Indian community issue under the beyond-a-reasonable-doubt standard, found him guilty as charged.
Section 1156 establishes penalties for anyone who, aside from certain exceptions, “possesses intoxicating liquors in the Indian country.” The same statutory section states that: “The term ‘Indian country’ as used in this section does not include fee-patented lands in non-Indian communities . . . and this section does not apply to such lands ... in the absence of a treaty or statute extending the Indian liquor laws thereto.” 18 U.S.C. § 1156. The few courts which
We are persuaded that the issue indeed constitutes an element of thе crime of possession of intoxicants in Indian country and is neither a jurisdictional issue, as the district court believed, nor a statutory exception that must be proved by the defendant. The district court’s charaсterization of the issue as jurisdictional apparently resulted from its failure to distinguish territorial jurisdiction cases, where the exercise of federal jurisdiction over a specific geographic arеa is necessary to vest jurisdiction in federal court. See, e.g., Rodman v. Pothier,
The structure and wording of § 1156 indicate that the prosecution should bear the burden of proof as to the status of the site. Because possession of intoxicants is prohibitеd by § 1156 only in Indian country, the locus of the act of possession constitutes an element of the crime. The statutory definition of “Indian country” excludes fee-patented lands in non-Indian communities. We are therefore persuaded that the Government bears the burden of proving that the site of the offense was not a non-Indian community as part of its proof that the offense occurred in Indian country. Cf. United States v. Vuitch,
Due process requires that each fact necessary to constitute a crime be proved beyond a reasonable doubt. In re Winship,
REVERSED and REMANDED for proceedings consistent with this opinion.
Notes
. The full text of 18 U.S.C. § 1156 provides:
Whoever, except for scientific, sacramеntal, medicinal or mechanical purposes, possesses intoxicating liquors in the Indian country or where the introduction is prohibited by treaty or an Act of Congress, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both.
The term “Indian country” as used in this section does nоt include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.
Dissenting Opinion
dissenting.
I must respectfully dissent because I believe that the proper characterization of Fort Courage is essentially a jurisdictional issue, a question of law to be decided by the court аnd subject to de novo review here. Jurisdiction is always a question of law to be determined by the district court. E.g., United States v. Jones,
Although the statute generally forbids all such possession “in the Indian country,” it excludes from the definition of “Indian country” all “fee-patented lands in non-Indian communities,”
As examples, 18 U.S.C. § 7 sets forth five categories of the exercise of “special maritime and territorial jurisdiction of the United States.” They include “the high seas” and “lands reserved or acquired for the use of the United States, and under the exclusive concurrent or [i.e., shared with the states] jurisdictiоn thereof.” Title 18 U.S.C. § 13, the so-called “Assimilative Crimes Act,” applies to any of the places and things described in § 7 the criminal prohibitions of the state in which situated, if the particular conduct is not made punishablе by an enactment of Congress.
Normally, acts performed outside the territorial boundaries of the United States are not within the reach of the criminal laws of our courts although they may be punishable elsеwhere. E.g., United States v. Busic,
The majority relies solely, and in my thinking unjustifiably, on United States v. Mazurie,
In our case, the proposed opinion’s finding that this issue must be proved beyond a reasonable doubt means that different juries might reaсh different conclusions with respect to the same tract of land. This possibility would appear to make the statute unconstitutionally vague, thereby conflicting with the Supreme Court’s contrary determination.
Thе view that status as a non-Indian community is an issue of law is directly supported by United States v. Morgan:
This court, in reviewing the characteristics presented in this case to the district court in' regard to the status of appellant’s localities, is actually reviewing a legal conclusion made by the court, namely, whether or not such surroundings can be termed a non-Indian community, or part of same, under the federal statute employing such term as an exception.
Involved here is essentially a territorial determination (Indian country as defined in 18 U.S.C. § 1156). In United States v. Jones,
Counsel have not cited, nor have we found, a case where it has been contended that the question of acceptance of jurisdiction or the location of territorial bоundaries should be determined by a jury. There are many cases in which it is clear that these questions have been determined by the court.
Finally, the instant case simply is an inappropriate vehicle in which to address this subject. The issue does not arise out of a jury trial in which the judge took it away from the jury, but was the court’s finding in a bеnch trial. The judge made no special finding that the prosecution had proved this “element” of the offense beyond a reasonable doubt; but under Rule 23(c) of the Federal Rules of Criminal Procedure, no special finding was required unless requested. United States v. Pace,
I would affirm the conviction.
The same generality of prohibition, with the same words of exclusion appear in § 1154 relating to sale, etc., of intoxicating liquors. See also § 1161.