State v. Atcitty
| Decision Date | 04 June 2009 |
| Docket Number | No. 27,189.,No. 27,333.,No. 27,940.,27,189.,27,333.,27,940. |
| Citation | 2009 NMCA 086,215 P.3d 90 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Arnold ATCITTY, Defendant-Appellant, State of New Mexico, Plaintiff-Appellee, v. Norman Jim, Defendant-Appellant, and State of New Mexico, Plaintiff-Appellee, v. Michael Billy, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.
Hugh W. Dangler, Chief Public Defender, S. Erin Brunson, Assistant Appellate Defender, Santa Fe, NM, for Appellants.
{1} The question presented in these consolidated cases is whether the State has the authority to require an Indian, who: (1) was convicted of a sex offense in a court other than a New Mexico state court; (2) is an Indian living in Indian country; and (3) is not attending school or employed outside of Indian country, to comply with the State's Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1999, as amended through 2007). Defendants are enrolled members of the Navajo Nation who were convicted in federal court of sex offenses involving minors. The State, in separate proceedings, charged Defendants with failing to register as sex offenders as required by SORNA.
{2} Defendants each filed motions to dismiss for lack of jurisdiction. Defendants asserted that the State lacked the authority to impose the registration requirements of SORNA on an Indian living in Indian country. The district court denied the motions. Defendants entered conditional pleas of guilty while reserving their right to appeal jurisdictional issues. The district court thereafter entered judgments convicting each Defendant of failing to register as a sex offender. We reverse.
{3} Defendant Arnold Atcitty (Atcitty) is an enrolled member of the Navajo Nation, which is a federally recognized Indian tribe. In 1998 Atcitty was convicted in federal court of a sexual offense against a minor. Pursuant to 42 U.S.C. § 14072 (1998), Atcitty was required to register with the FBI national sex offender database. The federal court specifically ordered Atcitty to "comply with any applicable registration requirements for sex offenders that exist in any jurisdiction in which [Atcitty] resides." In September 2004, Atcitty's federal probation supervision was transferred from the state of Colorado to San Juan County, New Mexico. At all times relevant to this case, Atcitty (1) was domiciled on the Navajo Indian Reservation (the Reservation) near Shiprock, New Mexico; (2) was not employed outside the boundaries of the Reservation; and (3) was not attending school outside the boundaries of the Reservation.
{4} On October 13, 2004, Atcitty was placed in a detoxification facility located outside of the boundaries of the Reservation in Farmington, New Mexico. The record does not indicate how long Atcitty was treated at the detoxification facility. On January 19, 2005, the San Juan County Magistrate Court issued an arrest warrant for Atcitty for his failure to register as a sex offender pursuant to Section 29-11A-4(I). Atcitty was arrested outside the boundaries of the Reservation, in San Juan County.
{5} Defendant Norman Jim (Jim) is an enrolled member of the Navajo Nation. In 1998 Jim was convicted in federal court of a sex offense involving a minor for which registration is required under SORNA. The federal court ordered Jim to "comply with any applicable [sex offender] registration requirements [existing] in any jurisdiction in which [Jim] would reside" following his release from federal prison. Jim was released from prison on January 5, 2006, and was placed under the supervision of a federal probation officer working in San Juan County. At all times relevant to this case, Jim (1) was domiciled on the Reservation and within San Juan County; (2) was not employed outside the boundaries of the Reservation; (3) was not attending school outside the boundaries of the Reservation; and (4) maintained a mail box with an address in Fruitland, New Mexico, which is located outside the boundaries of the Reservation.
{6} Jim's probation officer notified him of the requirement to register as a sex offender within ten days of his release from prison. Jim failed to register as a sex offender with the San Juan County authorities following his release from prison. Jim likewise failed to register as a sex offender with the FBI. On February 2, 2006, the San Juan County Magistrate Court issued an arrest warrant for Jim's failure to register as a sex offender pursuant to Section 29-11A-4(I). Jim was arrested on July 15, 2006, in an area outside the boundaries of the Reservation near Fruitland, New Mexico.
{7} Defendant Michael Billy (Billy) is an enrolled member of the Navajo Nation. In 2000 Billy was convicted in federal court of a sex offense involving a minor for which registration is required under SORNA. The federal court ordered Billy to "comply with any applicable [sex offender] registration requirements [existing] in any jurisdiction in which [Billy] would reside" following his release from federal prison. Billy registered as a sex offender with the San Juan County authorities and renewed his registration annually for the years 2001 through 2004. Billy failed to renew his registration with the San Juan County authorities in 2005 and did not register as a sex offender with the FBI. At all times relevant to this case, Billy (1) was domiciled on the Reservation and within San Juan County, (2) was not employed outside the boundaries of the Reservation, and (3) was not attending school outside the boundaries of the Reservation.
{8} On January 26, 2006, the San Juan County Magistrate Court issued an arrest warrant for Billy's failure to register as a sex offender pursuant to Section 29-11A-4(I). Billy was arrested on July 7, 2006, in an area outside the boundaries of the Reservation.
{9} In March 2005 the Navajo Nation enacted its own Sex Offender Registration Act, although the law was not in effect until April 26, 2006. See Sex Offender Registration Act of 2005, CAP-20-06 (available at http://www. navajocourts.org/Resolutions/CAP-20-06Sex Offender.pdf).
{10} The State charged Atcitty, Jim, and Billy (collectively Defendants) in separate proceedings with failing to register as sex offenders as required by SORNA. Defendants each filed motions to dismiss for lack of jurisdiction. Defendants asserted that the State lacked the authority to impose the registration requirements of SORNA on a member of the Navajo Nation living on the Reservation. The district court denied the motions, although it certified the issue for interlocutory appeal in the Jim case. The district court made the following determinations for each Defendant, with only slight variations, in denying the motions to dismiss.
a. [T]he Navajo Nation did not have a sex offender registration program. ... until April 26, 2006;
b. Defendant[s'] federal offense required registration with the FBI pursuant to 42 U.S.C.[] § 14072(b)(1) and (c);
c. [F]ederal law requires state authorities to register a current address, fingerprints[,] and photograph of a person convicted of a sexual criminal offense against a minor with the FBI's national database[;] if the state's sex offender registration program is not minimally sufficient according to the federal standards, the sex offender must register directly with the FBI's national database[;]
[d.] The federal court had jurisdiction over the Defendant[s] when it ordered [Defendants] to comply with any registration requirements for sex offenders that exist in any jurisdiction in which [Defendants] would reside. ... Defendant[s] resided in San Juan County, New Mexico on the Navajo Indian Reservation;
[e.] [Whether the State may require a Navajo] Indian living on a reservation located within the State's geographical boundaries defies traditional jurisdictional analysis in that the situs of the crime is unclear, whether the victim(s) of the crime is/are Indian is unclear, and that the crime arises from a statute that [this] Court ... has labeled a "civil, remedial, regulatory, nonpunitive law;" [and]
[f.] [Because] the Navajo Nation has no sex offender registration law or program in effect, Court relies on the jurisdictional principle ... adopted by the State ... that "the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them[.]"
{11} Following entry of the district court's orders denying Defendants' motions to dismiss, Atcitty and Billy signed plea agreements in which they agreed to plead guilty to failing to register as sex offenders pursuant to SORNA, although they reserved their right to appeal the jurisdiction issue. The district court thereafter entered its judgment and sentence in the Atcitty and Billy cases. Atcitty and Billy timely filed notices of appeal. Jim filed an application for interlocutory appeal, which this Court granted on April 3, 2007. The State filed a motion to consolidate the cases on appeal, which we hereby grant due to the factual and legal similarity among the cases.
{12} Defendants each assert on appeal that the district court erred in denying their motions to dismiss because New Mexico courts lack both subject matter and personal jurisdiction over their cases. Defendants do not dispute that they were convicted of sex offenses involving minors and that such convictions trigger SORNA's registration requirements for New Mexico residents. See Section 29-11A-3(D)(1), (2) (); Section 29-11A-3(E) (...
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