State v. Klindt ( 1989 )

PARKS, Presiding Judge,

concurs in result:

Appellee claims that 18 U.S.C. § 1152 excludes him from the jurisdiction of the State. 18 U.S.C. § 1152 provides:

“Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipultions, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.”

Appellee is using the exclusionary language of this section as an affirmative defense. The general rule is that once a criminal defendant satisfies his burden or production with respect to an affirmative defense, the prosecution must prove the inapplicability of this defense beyond a reasonable doubt. United States v. Guess, 629 F.2d 573, 577 n. 4 (9th Cir.1980).

Appellee should only be required to produce evidence that he is a member of a federally recognized tribe. Thereafter, the ultimate burden or proof remains on the prosecution. See United States v. Hester, 719 F.2d 1041, 1043 (9th Cir.1983). Therefore, I disagree with the majority opinion to the extent that it requires appellee to “establish” that he is an Indian. The ultimate burden or proving appellee’s status rests with the State.