904 F.2d 542 (10th Cir. 1990), 87-1547, Blatchford v. Sullivan

Docket Nº:87-1547.
Citation:904 F.2d 542
Party Name:Herbert Charles BLATCHFORD, Jr., Petitioner-Appellant, v. George SULLIVAN, Warden, and Attorney General, State of New Mexico, Respondents-Appellees.
Case Date:May 30, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 542

904 F.2d 542 (10th Cir. 1990)

Herbert Charles BLATCHFORD, Jr., Petitioner-Appellant,


George SULLIVAN, Warden, and Attorney General, State of New

Mexico, Respondents-Appellees.

No. 87-1547.

United States Court of Appeals, Tenth Circuit

May 30, 1990

Page 543

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Norman S. Thayer, Sutin, Thayer & Browne, Albuquerque, N.M. (Hal Stratton, Atty. Gen. of the State of N.M., George Snyder, Asst. Atty. Gen., Santa Fe, N.M., Stephen Charnas, Sasha Siemel, and James Lawrence Sanchez, Sutin, Thayer & Browne, Albuquerque, N.M., with him on the brief), for respondents-appellees.

Roger J. Marzulla, Acting Asst. Atty. Gen., William L. Lutz, U.S. Atty., Albuquerque, N.M., Jacques B. Gelin and Maria A. Iizuka, Attys., Dept. of Justice, Washington, D.C., on the brief, for the U.S. as amicus curiae.

Paul E. Frye, Nordhaus, Haltom, Taylor, Taradash & Frye, Albuquerque, N.M., on the brief, for the Navajo Tribe of Indians as amicus curiae.

Before MOORE, ANDERSON and BALDOCK, Circuit Judges.


This case is a companion case to Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387 (10th Cir.1990). Although Pittsburg & Midway is a civil case and this one a criminal case, both raise the same legal issue, i.e., whether 1.9 million acres in northwest New Mexico remain part of the Navajo Reservation by virtue of two Executive Orders issued in 1907 and 1908. Oral arguments in the two cases were consolidated, and the extensive documentary records were read side by side. We today decide in Pittsburg & Midway that the area in New Mexico set aside by Executive Order ("EO") 709, as amended by EO 744, lost reservation status when EOs 1000 and 1284 were issued in 1908 and 1911. Our ruling in that case governs this case as well. Nonetheless, we proceed to write separately to dispose of a second issue arising in this case that was not present in Pittsburg & Midway.


Charles Blatchford, a Navajo Indian, was convicted in 1978 in the New Mexico courts of being an accessory to criminal sexual

Page 544

penetration of a Navajo child and an accessory to the kidnapping of a second Navajo child. He was sentenced concurrently to ten to fifty years on the first count and life imprisonment on the second. After pursuing various appeals in state court, he filed a writ of habeas corpus in federal court, alleging that the state of New Mexico lacked jurisdiction to try him for his offenses. The district court determined that Blatchford's unsuccessful appeal in Blatchford v. Gonzales, 100 N.M. 333, 670 P.2d 944 (1983), cert. denied, 464 U.S. 1033, 104 S.Ct. 691, 79 L.Ed.2d 158 (1984), and its procedural aftermath had completed the requirement of exhaustion of state remedies.

The criminal acts of which Blatchford was convicted occurred in 1977 within a rural settlement area known as Yah-Ta-Hey, more specifically within section 7 of Township 16 North, Range 18 West, New Mexico Principal Meridian. Section 7 and the surrounding sections fall within an area added in 1907 to the Navajo Reservation by EO 709, as amended by EO 744. Blatchford alleged that the 709/744 area had never lost its reservation status and that, therefore, exclusive federal jurisdiction to try him lay with the federal courts under the Federal Major Crimes Act, 18 U.S.C. Sec. 1153. Alternatively, he alleged that even if the area had lost reservation status, it was a "dependent Indian community," also mandating federal criminal jurisdiction in his case. After an eight-day evidentiary hearing before the U.S. Magistrate, and after proposed findings by the Magistrate, to which both parties objected, U.S. District Judge Howard Bratton ruled that the crimes of which Blatchford had been convicted did not occur within either an Indian reservation or a dependent Indian community and, therefore, 18 U.S.C. Sec. 1153 did not apply. The district court dismissed Blatchford's petition, and he appeals. We affirm.


The Federal Major Crimes Act provided

"Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely ... kidnapping, rape, ..., within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States."

18 U.S.C. Sec. 1153 (1982). For purposes of the Act, Indian country is defined as

"(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) 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, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same."

18 U.S.C. Sec. 1151.

Blatchford concedes that the offenses of which he was convicted did not occur on an Indian allotment under 18 U.S.C. Sec. 1151(c). We have already ruled in Pittsburg & Midway that the area in which the offenses occurred lack reservation status. Therefore, they do not fall within section 1151(a). That leaves for resolution the issue of whether they occurred within a dependent Indian community under section 1151(b). The issue before us raises a jurisdictional question, and we review de novo the district court's legal conclusion that Yah-Ta-Hey is not a dependent Indian community. The factual characteristics of the Yah-Ta-Hey area are essentially undisputed, and in reviewing them this court is essentially reviewing the legal conclusion drawn from them by the district court. See United States v. Morgan, 614 F.2d 166, 170 (8th Cir.1980).


The standards guiding the determination of what constitutes a dependent Indian community have been spelled out in a series of federal cases dating back to 1913. The early cases from which interpretation of the term dependent Indian community

Page 545

derives are United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913) and United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938). Sandoval concerned the status of about twenty scattered pueblos (communities or villages) owned communally in fee simple...

To continue reading