Blatchford v. Gonzales

• Decision Date: 21 July 1983
• Docket Number: No. 14361,14361
• Citation: 100 N.M. 333,1983 NMSC 60,670 P.2d 944
• Parties: Herbert Charles BLATCHFORD, Jr., Petitioner-Appellee, v. Macario GONZALES, Administrator, Forensic Hospital, Respondent-Appellant.
• Court: New Mexico Supreme Court

Page 944

670 P.2d 944

100 N.M. 333

Herbert Charles BLATCHFORD, Jr., Petitioner-Appellee, v. Macario GONZALES, Administrator, Forensic Hospital,

Respondent-Appellant.

No. 14361.

Supreme Court of New Mexico.

July 21, 1983.

Jeff Bingaman, Atty. Gen., Eddie Michael Gallegos, Asst. Atty. Gen., Santa Fe, for respondent-appellant

Donna Chavez, Donald Juneau, Navajo Legal Aid and Defender Service, Window Rock, Ariz., for petitioner-appellee.

OPINION

PAYNE, Chief Justice.

Blatchford, a Navajo Indian, was convicted of accessory to criminal sexual penetration and kidnapping of a Navajo Indian child, and sentenced to life imprisonment. He was confined to the state mental hospital in San Miguel County where he filed a petition for writ of habeas corpus. However, he failed to pursue his post-conviction remedies under NMSA 1978, Crim.P.R. 57(j) (Repl.Pamp.1980), before applying for the writ. The district court granted the writ over objections by the State that Blatchford failed to exhaust his remedies under Rule 57(j). In granting the writ, the court below held that the State did not have jurisdiction over Blatchford for a crime committed on Indian land. It reached this result by concluding that the situs of the offense is a dependent Indian community. We reverse on two grounds.

First, we hold that the district court is without jurisdiction to grant the writ of habeas corpus, given the fact that Blatchford failed to exhaust his post-conviction remedies.

Rule 57(j) states that "[a] prisoner must exhaust his remedy under this rule [Rule 57] before applying for a writ of habeas corpus." The main purpose of the rule is to provide a uniform procedure for determining if the prisoner is entitled to relief. It would be premature to hear applications for writs of habeas corpus if other post-conviction remedies are available.

Second, we hold that Yah-Ta-Hey, the community where the crime occurred, is not a dependent Indian community with exclusive federal jurisdiction. We will consider this issue to afford guidance in further considerations of this matter should Blatchford pursue other remedies.

I.

The offense occurred in the Yah-Ta-Hey community, located approximately two miles from the Navajo Indian Reservation. The general area surrounding Yah-Ta-Hey has become a "checkerboard area," resulting from a sequence of Federal withdrawals and expansions of Indian reservation lands, and has been the source of some confusion on matters of jurisdiction.

Although Yah-Ta-Hey is the site of an Indian trading post and other related businesses, the trading post is owned by non-Indians and the site is on land which had been granted in fee by the United States. Sixty to seventy percent of the community is Indian. As part of their benefits of membership in the tribe, Navajos in the vicinity vote in tribal elections. But they also vote in state and county elections. Since Yah-Ta-Hey is primarily a site for Indian trading, no federal services are administered there. A Navajo living in the area who desires such services must go either to nearby Rock Springs or to Crownpoint, forty miles away, given the fact that Crownpoint has jurisdiction over the Yah-Ta-Hey area for providing many Indian services. County and state police, as well as tribal police and FBI officers, patrol the Yah-Ta-Hey community. The Navajo Tribal Code recognizes the Yah-Ta-Hey area as within its jurisdiction and consequently has designated Yah-Ta-Hey as a Chapter where meetings and tribal businesses are conducted.

II.

Blatchford contends that the situs of the crime scene, Yah-Ta-Hey, is "Indian country" as defined by 18 U.S.C. Section 1151 (1976), so as to require exclusive federal jurisdiction under 18 U.S.C. Section 1153 (1976). We do not agree.

The term "Indian country" as used in Section 1151 includes Indian reservations, dependent Indian communities, and all Indian allotments. Since Yah-Ta-Hey is neither located on an Indian reservation nor on an allotment, jurisdiction rests on the claim that the area in question is a dependent Indian community within Indian country.

Section 1151(b) defines "Indian country" as:

all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, * * *.

The foregoing language resulted from two earlier Supreme Court decisions, United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938) and United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913). These cases held that Indian country includes tribal Indian communities under federal protection that did not originate in either a federal or tribal act of reserving, or were not specifically designated a reservation. At the same time, it is apparent that Indian reservations and dependent Indian communities are not two distinct definitions of place, but definitions which largely overlap. See United States v. McGowan, 302 U.S. at 538-39, 58 S.Ct. at 287-288; see also F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 38 (1982). Nevertheless, the appropriate test to determine whether a community is within the definition of Indian country under Section 1151 is not how the land was acquired, but whether the land has been set apart for use and occupancy of Indians. United States v. McGowan, 302 U.S. at 539, 58 S.Ct. at 288; United States v. Mound, 477 F.Supp. 156 (D.S.D.1979); Youngbear v. Brewer, 415 F.Supp. 807 (D.N.D.Iowa 1976), aff'd, 549 F.2d 74 (8th Cir.1977); State v. Youngbear, 229 N.W.2d 728 (Iowa 1975); cf. United States v. Sandoval, 231 U.S. at 40, 34 S.Ct. at 3 (noting that Congress reserved public lands for Indian use and occupancy); accord United States v. Martine, 442 F.2d 1022 (10th Cir.1971) (endorsing Sandoval approach).

Other important factors were outlined in Martine to include: 1) the area in question; 2) the relationship of the inhabitants of the area to Indian tribes and to the federal government; and 3) the established practice of the government agencies toward the area. Id. at 1023. Additionally, in United States v. Morgan, 614 F.2d 166 (8th Cir.1980), a relevant factor was "cohesiveness" manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality. Id. at 170. The crucial consideration, however, is whether the community or land has been set apart for use, occupancy and protection of dependent Indian peoples. United States v. Mound, 477 F.Supp. at 160. This crucial factor is nothing more than an expanded concept of the original definition of a dependent Indian community set forth in McGowan as a community in which the United States retained "title to the lands which it permits the Indians to occupy" and "authority to enact regulations and protective laws respecting [the] territory." Id. 302 U.S. at 539, 58 S.Ct. at 288.

Blatchford contends that Yah-Ta-Hey, although presently situated two miles outside the original boundaries of the Navajo Indian Reservation, was annexed to the reservation as a result of President Woodrow Wilson's Executive Order of 1917, which "set apart for the use and occupancy of the Navajo" and other Indians certain federal lands. Executive Order No. 2513 of January 15, 1917. He argues that aboriginal Indian title to the Yah-Ta-Hey area was never extinguished after the United States sold the land in 1866 to the Atlantic & Pacific Railroad Company and pledged to extinguish Indian title "as rapidly as may be consistent with public policy and the welfare of the Indians." Act of July 27, 1866, ch. 278, Sec. 2, 14 Stat. 292 at 294. In addition, he argues that Indian title was not automatically extinguished in 1872, when the railroad line was definitely located. In short, Blatchford argues that the 1917 Order set the Yah-Ta-Hey area apart within the meaning of the test set forth in McGowan and its progeny, because aboriginal title to the area was never effectively extinguished. We disagree.

At the outset, we find error in the district court's finding that the 1917 Order encompassed the Yah-Ta-Hey area. The record shows that Yah-Ta-Hey is situated in Section 7 of Township 16 North, Range 18 West. We note that the 1917 Order embraced only three partial sections of Township 16 North, Range 18 West. Landy v. Federal Deposit Insurance Corporation, 486 F.2d 139, 151 (3rd Cir.1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974) (noting that an appellate court can properly take judicial notice of any matter of which any court of original jurisdiction may properly take notice); see also Varcoe v. Lee, 180 Cal. 338, 181 P. 223 (1919). These scattered sections do not embrace or overlap Section 7. Thus, even assuming that aboriginal Indian title had never been extinguished, the 1917 Order did not embrace the Yah-Ta-Hey area so as to set it apart for use and occupancy of the Navajo. Moreover, we find it difficult to conclude that an Executive Order, such as the 1917 Order, could validly set apart private fee land, given the well settled principle that the Executive may not act as lawmaker and take private property for public use. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).

But even if we assumed, arguendo, that the 1917 Order did encompass the Yah-Ta-Hey area, Indian title to the area was nonetheless extinguished. Aboriginal Indian title is a permissive right of occupancy granted by the federal government to the aboriginal possessors of land. Johnson and Graham's Lessee v. M'Intosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823); accord United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941); Beecher v. Wetherby, 95 U.S. 517, 525, 24 L.Ed. 440 (1877); Buttz v. Northern Pacific Railroad Co., 119 U.S. 55, 66, 7 S.Ct. 100, 104, 30 L.Ed. 330 (1866); Fellows v. Blacksmith, 60 U.S. 366, 15 L.Ed. 684 (1856); United States v. Gemmill, 535 F.2d 1145 (9th...