State v. Dick, 18-969

Citation981 P.2d 796
Case DateMarch 18, 1999
CourtCourt of Appeals of New Mexico


JOSEPH L. RICH, District Judge

PATRICIA A. MADRID, Attorney General, RALPH E. TRUJILLO, Ass't Attorney General, Santa Fe, NM, for Appellee

PHYLLIS H. SUBIN, Chief Public Defender, LAUREL A. KNOWLES, Ass't Appellate Defender, Santa Fe, NM, for Appellant

HERB YAZZIE, Navajo Nation Attorney General, MARCELINO R. GOMEZ, Ass't Attorney GeneralWindow Rock, AZ, for Amicus Curiae


PICKARD, Chief Judge.

{1} Defendant was arrested in McKinley County, and charged in state court, for driving while under the influence of intoxicating liquor (DWI). He filed a motion to dismiss that challenged the jurisdiction of the McKinley County District Court, arguing that the arrest occurred in "Indian country" and as a result fell outside the state court's jurisdiction. The district court denied Defendant's motion to dismiss, and Defendant now appeals that denial. In light of the United States Supreme Court's recent discussion of this issue in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S.Ct. 948 (1998), we reverse.


{2} Defendant, a member of the Navajo Nation, was arrested for DWI near the intersection of State Road 118 and State Road 400 in McKinley County, New Mexico. State Road 118 is the former Route 66, which runs north of and nearly parallel to Interstate 40. State Road 400 runs north-south through Fort Wingate. Defendant was charged in McKinley County District Court, where he challenged that court's subject matter jurisdiction. Because this jurisdictional issue was common to six known defendants, a unified hearing concerning state jurisdiction on this land, Fort Wingate, was held. This appeal, however, concerns only Defendant Dick.

{3} "Fort Wingate" refers to a tract of 100 square miles designated in 1870, and an additional 30 square miles designated in 1881, as a military reservation. In 1950, Congress enacted a public law retaining title to 13,150 acres of Fort Wingate in the United States, but transferring the land to the Department of the Interior for the use of the Bureau of Indian Affairs (BIA). See Public Law 567, 64 Stat. 248 (1950) (Public Law 567). The Fort Wingate area remains titled in the United States government, with the exception of sixteen acres that are privately owned (the Merrill Property).

{4} The United States government's holdings in Fort Wingate are now four separately administered parcels, as indicated on the following representational map.


Graphic file number 0 named c:\wpdata\wpwin\auth. with height 240 p and width 428 p Center aligned

Parcel one, to the north, is administered by the BIA in trust for the Navajo Nation. Parcel two, south of parcel one and west of parcels three and four, is administered by the United States Department of Defense. Parcel three, south of parcel one and east of parcel two, is administered by the BIA. Parcel four is directly south of parcel three, and is administered by the United States Forestry Service. Defendant was arrested on parcel three.The district court viewed parcels two, three, and four as the proper community of reference on which to base the determination of whether Fort Wingate is properly considered a "dependent Indian community" under 18 U.S.C. § 1151(b) (1994). The district court went on to apply the four-factor test set forth in Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1545 (10th Cir. 1995), for assessing whether Fort Wingate is a "dependent Indian community." The district court found that parcel three housed a high school and an elementary school, that the high school's student body was 90% Navajo, the remainder being from other Indian tribes, and that about 75% of the students lived on campus. The district court concluded that "[p]arcel 3 is land held by the BIA for purposes of primarily educating Indian children, but not specifically for the use, occupancy and protection of dependent Indian peoples."

{5} Based on the evidence presented at the hearing, the district court denied Defendant's motion to dismiss. Defendant entered a guilty plea to the charge of second-offense DWI, reserving his right to appeal the denial of his motion to dismiss.

A. Standard of Review

{6} Upon review, this Court will defer to the trial court's determinations of fact if such findings are supported by substantial evidence. See State v. Munoz, 111 N.M. 118, 120, 802 P.2d 23, 25 (Ct. App. 1990). As to matters of law, this Court conducts a de novo review. See State v. Frank, 1997-NMSC-093, ¶ 4, 123 N.M. 734, 945 P.2d 464.

B. "Indian Country"

{7} Defendant contends that because he was stopped in "Indian country," the state had no jurisdiction over him. As a general principle, a state has no jurisdiction over crimes committed by an Indian in "Indian country." See generally United States v. Kagama, 118 U.S. 375, 383 (1886); cf. Williams v. United States, 327 U.S. 711, 714 (1946) (holding that a state has no jurisdiction over a crime committed by a non-Indian against an Indian in "Indian country").

{8} Congress defines "Indian country" at 18 U.S.C. § 1151. That provision states:

"Indian country," as used in this chapter, means (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.

In this appeal, however, only the second form of "Indian country," that is, "dependent Indian communities," is at issue.

1. "Dependent Indian Community"

{9} The United States Supreme Court recently revisited the question of what is a "dependent Indian community" in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S. Ct. 948 (1998). In Venetie, the Court stated that the determination of whether a given community is a "dependent Indian community" under Section 1151(b) turns on two elements: (1) a federal set-aside of lands for Indian use; and (2) federal superintendence of such lands. See id. at ___, 118 S. Ct. at 953. Compared to existing precedent in the circuits, the Venetie opinion indicates a change in the focus of the "dependent Indian community" analysis by shifting the emphasis from the inhabitants and their day-to-day relationship with the government to a land-based inquiry. See id. at ___, 118 S. Ct. at 954-55 n.5.

{10} Prior to Venetie, the test for determining whether a "dependent Indian community" existed varied by jurisdiction. Here in New Mexico, we decided this issue most recently in State v. Frank. In Frank, we adopted the Tenth Circuit's analysis in Watchman. See Frank, 1997-NMCA-093, ¶¶ 6, 13. In Watchman, the Tenth Circuit required an initial determination of the community of reference and a four-prong test to be applied to the designated community of reference to determine whether that community is a "dependent Indian community." See Watchman, 52 F.3d at 1545. The four prongs are: (1) whether the United States has retained title to the lands which it permits the Indians to occupy and authority to enact regulations and laws governing the property; (2) the nature of the area in question, the relationship of its inhabitants to Indian tribes and the federal government, and the practice of the government toward the area; (3) whether there is an element of cohesiveness in the area; and (4) whether the lands have been set apart for the use, occupancy, and protection of dependent Indian peoples. See Frank, 1997-NMCA-093, ¶ 13.

{11} The Supreme Court in Venetie disapproved of the multi-factored tests for "dependent Indian communities" as it rejected the Ninth Circuit's six-factored "textured" analysis. See id. at ___, 118 S. Ct. at 955 n.7. The six factors referred to by the Ninth Circuit are the same as the four factors from Watchman, except that compound factors in Watchman are separated out into individual factors. See Venetie, 522 U.S. at ___, 118 S. Ct. at 952. While the Supreme Court did not eliminate the other factors outright, it did declare that the federal set-aside and superintendence considerations take priority over other considerations. See id. at ___, 118 S. Ct. at 954-55 & n.7. The Court criticized the Ninth Circuit's relegation of "the federal set-aside and superintendence requirements to mere considerations." Id. at ___, 118 S. Ct. at 955 n.7. The Court explained the relationship between the Venetie analysis and the articulations of the different Circuit Courts of Appeal:

The federal set-aside requirement ensures that the land in question is occupied by an "Indian community"; the federal superintendence requirement guarantees that the Indian community is sufficiently "dependent" on the Federal Government that the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question.

Id. at ___, 118 S. Ct. at 955 (footnotes omitted).

{12} In our case, the trial court concluded, in its application of the Watchman analysis, that the relevant community of reference in this case consisted of parcels two, three, and four of Fort Wingate. The district court offered no support for its exclusion of parcel one, which it found to be Indian trust land, or its inclusion of parcels two and four, which are used for military and national forest purposes, respectively. As stated above, we review this legal conclusion de...

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