dissenting. Today’s majority all but ignores controlling acts of Congress, strays beyond the issue presented, and makes unwarranted assumptions of fact entirely dehors the record, thereby reaching a predetermined result. I am unable to associate myself with such a decision, and therefore I dissent.
The issue presented is limited to the allocation of the burden of proof as to the jurisdiction of the State to prosecute a criminal case in the face of a defendant’s claim that the alleged offense occurred in “Indian country.”
This is an interlocutory appeal by defendants who challenge a pretrial ruling with regard to their motions to dismiss the various criminal charges filed against them for lack of subject matter jurisdiction of the district court. The trial court ruled that defendants bore the burden of proving that they are Indians and that the alleged offenses occurred in “Indian country,” as defined by 18 U.S.C. § 1151. I would affirm in part and reverse in part, holding that defendants must bear the initial burden of proving that they are Indians but that the State, upon such a showing, must bear the burden of proving that the alleged offenses did not occur in “Indian country.”
I.
A.
The State alleges that four misdemeanors and one felony were committed. If the defendants are Indians and if the alleged of*393fenses occurred, as defendants claim, in “Indian country,” 18 U.S.C. § 1151, the courts of this state would be prohibited from assuming jurisdiction over the four misdemeanors by reason of the exclusive federal jurisdiction over such offenses in “Indian country” established by 18 U.S.C. § 1152. Vermont courts would likewise be deprived of jurisdiction with regard to the felony by reason of the exclusive federal jurisdiction established by 18 U.S.C. § 1153.
“Indian country” includes 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). Although defendants concede that there are no Indian reservations nor Indian allotments in Vermont, they claim that the alleged offenses all occurred within a “dependent Indian community.”
When Congress included “dependent Indian communities” within the definition of “Indian country,” it effectively codified the holding of United States v. Sandoval, 231 U.S. 28 (1913). Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 508 (1976). The criteria which determine whether a particular locale is a “dependent Indian community” include “the nature of the area in question, the relationship of the inhabitants of the area to Indian Tribes and to the federal government, and the established practice of government agencies toward the area.” United States v. Martine, 442 F.2d 1022, 1023 (10th Cir. 1971). Courts have considered “evidence which would tend to prove or disprove the following: (1) that the area in question was primarily used and occupied by Indians; (2) that the Indian group was distinct from the rest of the community; and (3) that the Indian community was dependent upon the federal government for financial resources or general protection.” Comment, Jurisdiction Over Adjudications Involving the Abenaki Indians of Vermont, 10 Vt. L. Rev. 417, 423-24 (1985) (citing United States v. Levesque, 681 F.2d 75 (1st Cir. 1982); United States v. South Dakota, 665 F.2d 837 (8th Cir. 1981)).
Therefore, under § 1151(b), the existence and dependent nature of the affected Indian community must be established as a question of fact. See United States v. Martine, 442 F.2d at 1023-24. The issue presented by this appeal is whether the State or the defendants bear the burden of proof as to the establishment of the jurisdictional facts.
*394B.
Considerations of federal-state comity as well as respect for our federal system require us to approach the issue with caution. The allocation of authority over Indian affairs is established by federal statutes and treaties. McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 165 (1973). On the subject of Indian country jurisdiction the federal role is “dominant.” See F. Cohen, Handbook of Federal Indian Law 282 (1982).
Federal policy has long favored tribal self-government and federal protection, which are important aspects of the trust relationship between the tribes and the United States. F. Cohen, at 361. Recognizing the congressional determination that state jurisdiction erodes both tribal self-government and federal protection, the Supreme Court has held that any congressional purposes to delegate Indian country jurisdiction to a state must be clearly and specifically expressed. Bryan v. Itasca County, 426 U.S. 373, 392 (1976); see also Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 484 (1979); Menominee Tribe v. United States, 391 U.S. 404, 413 (1968). In short, “[f]ederal protection of tribal self-government precludes either criminal or civil jurisdiction of state courts over Indians or their property absent the consent of Congress.” F. Cohen, at 349 (citing United States v. John, 437 U.S. 634, 652-54 (1978); Fisher v. District Court, 424 U.S. 382, 386-87 (1976). Since Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Supreme Court has consistently held that the states may not apply their own laws to Indians in Indian country without the consent of the United States, the Indians, or both.
In 1953 Congress enacted Public Law 83-280. Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326; 28 U.S.C. § 1360). The Act delegated, in mandatory terms, to certain enumerated states, not including Vermont, jurisdiction over most crimes and many civil matters throughout most of the Indian country within their borders. The Act also offered any other state the option of accepting the same jurisdiction. See generally Goldberg, Public Law 280: The Limits of State Jurisdiction Over Reservation Indians, 22 UCLA L. Rev. 535 (1975). Although ten of the optional states acted to accept some degree of jurisdiction under the Act’s provisions, see F. Cohen, at 362, n. 125, Vermont did not.
*395We must therefore be mindful of the dominant federal role in Indian affairs, the long-standing and judicially-recognized federal policy against state jurisdiction over Indians in Indian country, and the decision of the State of Vermont not to accept such jurisdiction when offered the opportunity to do so by Public Law 280.
C.
Courts in other jurisdictions have taken two different approaches to resolve the burden-of-proof issue. The Supreme Judicial Court of Maine has held that “the State of Maine must come forward with evidence . . . sufficient to meet the ultimate burden of establishing beyond a reasonable doubt” that the location of the alleged criminal offense was not in Indian country. State v. Dana, 404 A.2d 551, 562 (Me. 1979). However, that holding was predicated solely upon a Maine statute, then 17-A M.R.S.A. § 5, since recodified as 17-A M.R.S.A. § 7, which specifically provides that “[t]he existence of territorial jurisdiction must be proved beyond a reasonable doubt.” Vermont has no such statute.
The Supreme Court of Nevada has held that it is not necessary in a state criminal prosecution for the State “to negative the jurisdiction of the United States”; rather the State need only show that the offense occurred within its territorial borders, and it then becomes the burden of the defendant to prove that it occurred in Indian country. State v. Buckaroo Jack, 30 Nev. 325, 334-36, 96 P. 497, 497-98 (1908). The Nevada court has also held that the State is not required to prove that the accused was not an Indian, but rather, “the accused” is required “to shoulder the burden of establishing his Indian ancestry . . . .” Jones v. State, 94 Nev. 679, 680, 585 P.2d 1340, 1341 (1978); see also State v. Cutnose, 87 N.M. 307, 309, 532 P.2d 896, 898 (1974) (burden on defendant to demonstrate lack of jurisdiction on grounds that the crimes were committed within Indian country).
The Nevada court predicated its holdings on the theory that the jurisdiction of the state court was general, whereas the jurisdiction of the federal court was limited only to cases where the offense was committed in Indian country. It concluded that “[w]here the state jurisdiction is general, and that of the federal government is special and limited,” the State should not be required “to negative” the special and limited federal jurisdiction. State v. Buckaroo Jack, 30 Nev. at 334, 96 P. at 497-98. It did not *396recognize, nor did it discuss, the important concerns of comity and federal Indian policy noted above nor did it consider the dominant federal role in Indian affairs under the Supremacy Clause of the United States Constitution. Today’s majority adopts the cavalier attitude of the Nevada court with regard to these issues.
The Maine court’s exclusive reliance upon that state’s statute, which has no Vermont counterpart, and the Nevada court’s failure to consider important concerns lead to the conclusion that neither line of cases is particularly helpful to an appropriate resolution of the issue.
D.
In Vermont, the State has always been required to establish the jurisdiction of the court in a criminal prosecution. See Vt. Const. ch. II, § 39; V.R.Cr.P. 12(b)(2); State v. Huginski, 139 Vt. 95, 97, 422 A.2d 935, 936 (1980); State v. Longway, 137 Vt. 165, 167, 400 A.2d 1002, 1003 (1979).* As noted above, the court would be without jurisdiction in this case if defendants are Indians and if the alleged offenses occurred in Indian country, specifically in a “dependent Indian community” as that term is used in 18 U.S.C. § 1151(b).
To require the State to prove that defendants are not Indians would require the State to establish a fact involving defendants’ personal ancestry and family history with regard to which most of the knowledge and evidence is uniquely more available to defendants. It is therefore appropriate that the defendants should bear the burden of proof to establish that they are Indians. Cf. People v. Prichard, 162 Cal. App. 3d Supp. 13, 16, 209 Cal. Rptr. 314, 316 (1984) (when an exonerating fact is peculiarly within defendant’s knowledge, initial burden of proof is placed on defendant). I would accordingly hold (as does the majority) that in a challenge such as this to the jurisdiction of a state court, defendants must bear the burden of going forward in the first instance to present evidence sufficient to establish that they are Indians by a prepon*397derance of the evidence. Should defendants fail to establish that fact in this manner the jurisdictional challenge must fail.
Unlike the geneology of a particular defendant, however, evidence and knowledge as to the relevant criteria for determining whether there exists a “dependent Indian community” are as available and accessible to the State as to defendants, if not more so. These factors include “the nature of the area in question, the relationship of the inhabitants of the area to Indian Tribes and to the federal government, and the established practice of governmental agencies toward the area.” United States v. Martine, 442 F.2d at 1023. To be considered is “evidence which would tend to prove or disprove the following: (1) that the area in question was primarily used and occupied by Indians; (2) that the Indian group was distinct from the rest of the community; and (3) that the Indian community was dependent upon the federal government for financial resources or general protection.” 10 Vt. L. Rev. at 423-24.
All of these factors are objective historical and sociological facts. Such facts are open and available to all, especially to a party with the virtually unlimited resources of the State. However, the majority (with a total absence of analysis or even discussion) blandly assumes that such matters are “peculiarly within the knowledge of the Abenaki Indian tribe and its individual members.” This naked assertion underpins the majority’s position. It is difficult to conceive a weaker foundation. Perhaps Abenakis are more accomplished historians and sociologists than non-Abenakis; if so, such does not appear from the record.
Therefore, in the interest of federal-state comity, deference to federal authority in Indian affairs, and recognition of long-standing judicially recognized federal policy, I would hold that the State must bear the burden of proving that the alleged crimes did not occur in Indian country provided defendants have first established by a preponderance of the evidence that they are Indians.
II.
The majority virtually ignores federal supremacy in Indian affairs and well-established judicial recognition of the need for state deference to federal policy. Such judicial recognition dates back to John Marshall. Worcester v. Georgia, 31 U.S. (6 Pet.) 515. Having waged genocidal warfare against the native inhabitants of *398this continent, see Utley, The American Way of War, the European majority has belatedly, and all too often ineffectively, created a special trust relationship between the federal government and Native Americans. Today, this Court violates that trust.
The majority substitutes a series of irrelevancies for careful analysis (or much of any analysis at all, for that matter) of the federal statutes and policies. The most egregious example is the subtle overstatement of the issue involved in this appeal. That issue is limited to the allocation of proof as to state criminal jurisdiction. Yet, the majority for no apparent reason assumes that the State will not be able to prove its right to assume criminal jurisdiction in this case. It concludes (with, it would appear, a touch of xenophobia) that deference to federal policy would allow these defendants to “escape all criminal prosecution.” This explicit result-oriented concern is at least premature; in the event, the State may well carry its appropriate burden of proof. Moreover, our neighboring state of Maine almost a decade ago placed the jurisdictional burden of proof on the State; to date, there have been no reports of anarchy.
Likewise, the majority prematurely emphasizes the lack of evidence “that the federal government recognizes any part of Vermont as Indian country.” If true (this record being silent on the matter), an historical lack of significant relationships between the federal government and the Abenaki Tribe would be an important fact supporting the state’s assumption of criminal jurisdiction in a hearing on' remand. However, it simply had nothing to do with the issue before the trial court, which explains the lack of a record. Likewise, it is irrelevant to the issue before us. The majority shows undue haste to allow the state to head the Indians off at the pass rather than fairly defeat them, if it can, in a battle fought on level ground.
Similarly unhelpful is the underlying implication that the State should not be required to negative a positive. As with most cliches, this one does not withstand analysis. The fact is that the State is often required to negative a positive. The most common of many such examples are the requirement that the State prove beyond a reasonable doubt the absence of authority or consent in a prosecution for unlawful trespass, 13 V.S.A. § 3705(a), and the requirment that the State prove beyond a reasonable doubt the absence of consent in a prosecution for sexual assault, 13 V.S.A. § *3993252(1)(A). The State routinely carries such burdens of proof with success.
The majority”s claim that its position is supported by “the majority of other states addressing the issue” is disingenuous. That “majority” consists of cases from Nevada and New Mexico, courts which have adopted the same cavalier attitude toward the federal government-Native American trust relationship as does today’s majority of this Court. On the other hand, the Supreme Judicial Court of Maine has in a similar case forthrightly applied its local statute allocating the jurisidictional burden of proof without fear or favor. This Court should likewise apply clear federal law and policy to this case.
Fundamentally, the majority jumps the gun in its desire to protect our European majority from some anticipated depredations of our Native American minority. While such fear is ephemeral, its existence apparently makes this a hard case. The majority’s decision proves yet again the axiom, “hard cases make bad law.” Northern Securities Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).
On Motion For Reargument
In response to appellants’ December 15, 1988, motion for reargument, the opinion of the Court is recalled to delete Footnote 3 and to correct an inaccuracy in the statement of the position of defendants. The revision does not change the result previously reached.
The motion for reargument is denied; appellants’ supplemental motion is denied as untimely.
The majority, in an attempt to find support for its position, reaches back to 1896 for a case not in point. State v. McCaffrey, 69 Vt. 85, 37 A. 234, has nothing to do with jurisdiction; rather the issue before the McCaffrey court involved statutory factors which excuse conduct which would otherwise be criminal.