Blatchford v. Sullivan

• Decision Date: 30 May 1990
• Docket Number: No. 87-1547,87-1547
• Citation: 904 F.2d 542
• Parties: Herbert Charles BLATCHFORD, Jr., Petitioner-Appellant, v. George SULLIVAN, Warden, and Attorney General, State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 542

904 F.2d 542

Herbert Charles BLATCHFORD, Jr., Petitioner-Appellant, v. 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.

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.

STEPHEN H. ANDERSON, Circuit Judge.

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.

BACKGROUND

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

I.

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).

II.

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 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 by the Pueblo Indians under grants from the King of Spain that were subsequently confirmed by Congress. Like reservation Indians, the Indians of the pueblos were treated by the United States as dependent peoples, Sandoval, 231 U.S. at 40-41, 34 S.Ct. at 3-4. The federal government provided agents and superintendents to "guard their interests," established Indian schools in the pueblos, constructed dams and irrigation works, and set aside additional lands for the use and occupancy of the Pueblo Indians where their own lands were insufficient. Id. at 40, 34 S.Ct. at 3. In addition, Congress forbade New Mexico from taxing the lands and other property within the pueblos. Id. The Sandoval Court concluded that the pueblos had been treated by the legislative and executive branches as dependent communities in need of protection and federal guardianship, especially from the evils of liquor. Id. at 46-48, 34 S.Ct. at 5-7. The Court thus declared that the pueblos were subject to a federal criminal prohibition on the introduction of liquor into Indian country. The fact that the lands were held communally rather than in individual ownership and that the pueblos were "distinctly Indian communities" were significant to the outcome.

The McGowan case also applied the federal law prohibiting the introduction of liquor into Indian country. In McGowan, the United States had purchased a tract of land in which to settle needy, nonreservation Indians living in Nevada. The United States held title to the land for the benefit of the Indians. The Court observed that "Indians of the Reno Colony have been established in homes under the supervision and guardianship of the United States." McGowan, 302 U.S. at 538, 58 S.Ct. at 287. The Court added that "[t]he fundamental consideration of both Congress and the Department of the Interior in establishing this colony has been the protection of a dependent people." Id. The colony was given the "same protection" as that given Indians on reservations. Id. Finally, in declaring the Reno Indian Colony to be a dependent Indian community, the Court summarized the facts as follows:

"The Reno Colony has been validly set apart for the use of the Indians. It is under the superintendence of the Government. The Government retains title to the lands which it permits the Indians to occupy. The Government has authority to enact regulations and protective laws respecting this territory.... [I]t is not reasonably possible to draw any distinction between this Indian 'colony' and 'Indian country.' "

Id. at 539, 58 S.Ct. at 288.

The next case to interpret the term dependent Indian community was United States v. Martine, 442 F.2d 1022 (10th Cir.1971). In Martine, we concluded that the term applied to the Navajo community of Ramah, New Mexico, which is typically seen as one of three satellite communities of the Navajo Reservation. Martine was indicted for involuntary manslaughter of a passenger in a truck that he allegedly had been driving when it overturned on land within Ramah. The land was "owned by the Navajo Tribe, ... having been purchased with tribal funds from a corporate owner." Id. at 1023. We stated in Martine that Sandoval confirmed the propriety of the trial court's approach to the determination of dependent Indian community status. The trial court had considered (1) the nature of 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 government agencies toward the area. Id. We acknowledged...