State v. Begay, 6292
| Decision Date | 22 January 1958 |
| Docket Number | No. 6292,6292 |
| Citation | 63 N.M. 409,1958 NMSC 13,320 P.2d 1017 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Nelson H. BEGAY, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Fred M. Standley, Atty. Gen., Frank H. Patton, Sp. Asst. Atty. Gen., Robert F. Pyatt, Asst. Atty. Gen., for appellant.
Tansey & Rosebrough, Farmington, for appellee.
The appellee, Nelson H. Begay, is a Navajo Indian who was arrested on May 7, 1957 by an officer of the New Mexico State Police on the right of way of U. S. Highway 666, south of Shiprock, New Mexico, and within the exterior boundaries of the Navajo Reservation. He was taken to the office of the justice of the peace for Precinct No. 13, County of San Juan, State of New Mexico, and charged with three violations of state law, to-wit: driving while intoxicated, driving after revocation of driver's license, and being involved in an accident while driving when intoxicated.
Appellee was tried and convicted of the charges in the justice of the peace court and interned in the county jail. On May 27, 1957, appellee filed his petition for writ of habeas corpus in the district court of San Juan County and prayed for his release from imprisonment. Appellee in his petition challenged the jurisdiction of the state courts over the subject matter and contended that the judgment of the justice of the peace was a nullity.
The district judge issued the writ of habeas corpus directed to the sheriff directing that the body of the appellee be produced at the court house at Aztec, New Mexico, for hearing. At the hearing the court held that the justice of the peace was without authority or right to impose the sentence on the appellee and that he had been deprived of his liberty without due process of law. The court ordered appellee be released and restored to his liberty. Appeal was taken from such order and judgment of the district court.
Highway 666 was constructed under a grant from the United States to the State of New Mexico of an easement to the land for the right of way under discussion herein. A map was introduced in evidence at the hearing on the Petition for writ of habeas corpus which describes this particular highway and upon which the right of way is delineated. This map bears a notation of approval of the Department of the Interior of the United States which reads, as follows:
'Department of the Interior, April 29, 1926, approved as of date of December 23, 1925, subject to the provisions of the Act of March 3, 1901 (31 Stat.L. 1058-1084) Department regulations thereunder; and subject also to any prior valid existing right or adverse claim.
'/s/ William H. Edwards
'William H. Edwards
'Assistant Secretary.'
The Department regulation cited in the approval is Title 25 U.S.C.A. Sec. 311, reading:
The approval granted by the Department of the Interior to the state to construct Highway 666 was subject to the provisions of 25 U.S.C.A. Sec. 311 which authorizes the Secretary of the Interior '* * * to grant permission * * * for the opening and establishment of public highways * * *.' Nothing more than an easement granted to the state can be found here. An easement is distinguished from a fee and constitutes a liberty, privilege, right or advantage which one has in the land of another, 28 C.J.S. Easements Sec. 1, pp. 619, 623.
The State of New Mexico lacks jurisdiction over Indian lands within the state until and unless the title of the Indian or Indian Tribes shall have been extinguished. Until such extinguishment of title, the lands involved are subject to the absolute jurisdiction and control of the Congress of the United States. Constitution of New Mexico, Art. XXI, Sec. 2. We hold that the authority under which the State was permitted to construct Highway 666 through, and over, the Navajo Indian reservation failed to extinguish the title of the Navajo Indian Tribe.
The appellant relies heavily upon the case of State v. Tucker, 237 Wis. 310, 296 N.W. 645. That case also involved a highway right of way through an Indian reservation granted to the State by the Department of the Interior. The court held that the permission given to construct and maintain the highway by the Secretary of the Interior under 25 U.S.C.A. Sec. 311 destroyed the Indian's title to the land included in the highway right of way. Thus, with the title in the Indians extinguished, the land came under the jurisdiction of the state. State v. Tucker adopted a rule of law which was taken from the earlier cases of Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681; Veeder v. Guppy, 3 Wis. 502; Beecher v....
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