United States v. Robert Billy Gipe

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 and 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, 480 F.2d 1135, 1138 (2d Cir. 1973) (and cases cited therein). The majority concludes that we have a fact issue and therefore an element of the offense of possession because that is how it reads in 18 U.S.C. § 1156 . It holds that since possession of intoxicants is made non-criminal *780 in a non-Indian community, the nature of the situs becomes an element of the offense. But this does not at all follow.

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,” * and also excludes “rights-of-way through Indian reservations.” The problem is that we are dealing with legislation in which Congress chose to impose jurisdiction discretely, not uniformly-

As examples, 18 U.S.C. § 7 sets forth five categories of the exercise of…

672 F.2d 777 UNITED STATES of America, Plaintiff-Appellee, v. Robert Billy GIPE, Defendant-Appellant. No. 80-1777. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 11, 1981. Decided March 26, 1982. Thomas F. Harper, Harrison, Myers, Singer & Lerch, Phoenix, Ariz., for defendant-appellant. Roger K. Dokken, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before CHOY, HUG and POOLE, Circuit Judges. PER CURIAM: 1 Appellant Gipe appeals from his conviction for possessing intoxicating liquors in "Indian country" in violation of 18 U.S.C. § 1156 . 1 Because the district court did not apply the beyond-a-reasonable-doubt standard in determining the existence of one of the facts necessary to constitute the crime, we reverse and remand. 2 Gipe admits to possessing and selling beer at Fort Courage, a shopping area located 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, the district court concluded…

Appellant Gipe appeals from his conviction for possessing intoxicating liquors in “Indian country” in violation of 18 U.S.C. § 1156 . 1 Because the district court did not apply the beyond-a-reasonable-doubt standard in determining the existence of one of the facts necessary to constitute the crime, we reverse and remand.

Gipe admits to possessing and selling beer at Fort Courage, a shopping area located 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, the 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…