State v. Frank, 20,376.

• Decision Date: 28 March 2001
• Docket Number: No. 20,376.,20,376.
• Citation: 2001 NMCA 26,24 P.3d 338,130 N.M. 306
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Travis FRANK, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

24 P.3d 338

130 N.M. 306

2001 NMCA 26

STATE of New Mexico, Plaintiff-Appellee, v. Travis FRANK, Defendant-Appellant.

No. 20,376.

Court of Appeals of New Mexico.

March 28, 2001.

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.

OPINION

PICKARD, Judge.

{1} This case requires us to review and clarify the current case law interpreting the definition of "dependent Indian community" contained in 18 U.S.C. § 1151(b) (1994), for the purpose of determining whether the State has jurisdiction over this Navajo Defendant. The United States Court of Appeals for the Tenth Circuit established a two-step analysis to determine what constitutes a "dependent Indian community." See Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir.1995)

. We adopted that analysis in a prior opinion in this case. See State v. Frank, 1997-NMCA-093, ¶ 2, 123 N.M. 734, 945 P.2d 464. However, that analysis was recently called into question when the United States Supreme Court interpreted the meaning of 18 U.S.C. § 1151(b) for the first time since its inception and established a somewhat different test to determine jurisdiction in what is argued to be Indian country. See Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (hereinafter Venetie).

{2} Since that time, the Tenth Circuit has twice interpreted the Venetie analysis, first in United States v. Roberts, 185 F.3d 1125 (10th Cir.1999), and then in HRI, Inc. v. Environmental Protection Agency, 198 F.3d 1224, 1248 (10th Cir.2000). We now adopt the Tenth Circuit's analysis of the threshold issue of defining the appropriate "community of reference" as established in Watchman, adopted in Frank, and reiterated in HRI. We then require application of the United States Supreme Court's two-factor test for determining the meaning of "dependent Indian community" established in Venetie, which modifies the second step of the Watchman analysis. We hold that the district court, in failing to analyze the community of reference issue, applied incorrect criteria in determining jurisdiction in this case. We reverse and remand for additional findings of fact and conclusions of law consistent with this decision.

ISSUES

{3} Defendant makes three claims on appeal: (1) the district court did not follow the mandate of this Court in the first appeal of the case because it did not use the two-step analysis ordered in Frank; (2) the district court's findings of fact are insufficient for it to have analyzed the jurisdiction issue under Venetie as applied in the Tenth Circuit; and (3) the area in question is a "dependent Indian community" as defined by 18 U.S.C. § 1151, as a matter of law.

FACTS AND PROCEDURAL HISTORY

{4} Defendant appeals his convictions of six counts of vehicular homicide stemming from an accident that occurred on Highway 44, a state road that traverses northwestern New Mexico. The following facts are uncontested. Highway 44 runs through an area known as the checkerboard, so-called because of its pattern of land owned or administered by the federal government, the Navajo Nation, Navajo allottees, the state, and private non-Indians. The accident occurred on land owned by the federal government and administered by the Bureau of Land Management (BLM). Though the situs of the accident is not within the boundaries of the Navajo Reservation, it is within a political subdivision of the Navajo Nation known as the Nageezi Chapter. Defendant, a registered member of the Navajo Nation, moved for the charges to be dismissed for lack of state court jurisdiction, arguing that the area in question was a dependent Indian community as defined by 18 U.S.C. § 1151(b). The district court denied his motion. Defendant then pleaded guilty to the charges, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and reserved his right to appeal on the jurisdiction issue. On appeal, this Court held that the district court applied incorrect criteria in determining whether the accident occurred in Indian country as defined in 18 U.S.C. § 1151(b). See Frank, 123 N.M. 734,

945 P.2d 464, 1997-NMCA-093, ¶ 2. We remanded the case to the district court for additional findings and conclusions and instructed it to apply the two-step analysis set out in Watchman. See id. On remand, the district court again made findings of fact and conclusions of law, determining that the area in question is not a dependent Indian community under 18 U.S.C. § 1151(b). Defendant now appeals from this second district court decision.

DISCUSSION

Issue One: The Mandate of This Court on Remand.

{5} Defendant is correct in arguing that the general rule is that the lower court's duty on remand is to comply with the mandate of the appellate court and to follow the order without variation. See Vinton Eppsco Inc. v. Showe Homes, Inc., 97 N.M. 225, 226, 638 P.2d 1070, 1071 (1981). However, the general rule does not apply in this case because new law was announced in the interval between our remand and the district court's re-hearing of the case. See Venetie, 522 U.S. at 527, 118 S.Ct. 948 (noting that this decision was the first occasion for the Supreme Court to interpret the term "dependent Indian communities" since 18 U.S.C. § 1151(b) was enacted in 1948, rejecting the six-factor test established by the Ninth Circuit, and establishing a new two-factor test to determine what constitutes a dependent Indian community under 18 U.S.C. § 1151(b)). Defendant does not cite any authority that discusses a lower court's mandate in the event of intervening new law, so we need not address Defendant's direct claims. See Fernandez v. Farmers Ins. Co., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993)

(stating the general rule is that cases are not authority for propositions not considered).

{6} Here, the district court did not follow our mandate because it concluded that the United States Supreme Court's decision in Venetie, announced subsequent to the remand, superseded previous law. The district court is correct, because the Supreme Court has held that when it applies a rule of federal law to the parties before it, it is a controlling interpretation of federal law and must be given full retroactive effect in all cases still open on review, even if the events predated the announcement of the rule. See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 96, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993)

; see also State v. Dick, 1999-NMCA-062, ¶¶ 13-14, 127 N.M. 382, 981 P.2d 796 (applying Venetie analysis on appeal of case in which trial court used Watchman analysis); cf. Clark v. Tansy 118 N.M. 486, 491, 882 P.2d 527, 532 (1994) (holding that when a habeas petitioner in a criminal case can show that there has been an intervening change of law, relitigation of an issue decided adversely on direct appeal is not barred). However, "[i]n applying federal law, [the Court of Appeals] follow[s] the precedent established by the federal courts, particularly the United States Court of Appeals for the Tenth Circuit." State v. Snyder, 1998-NMCA-166, ¶ 9, 126 N.M. 168, 967 P.2d 843. The Tenth Circuit has twice discussed the Supreme Court's decision in Venetie, interpreting the Supreme Court's analysis in relation to Indian country in the southwest. Before we can discuss Defendant's remaining issues, we must first consider how to apply the Supreme Court's and Tenth Circuit's decisions to this case.

Background

{7} 18 U.S.C. § 1151 provides:

"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.

{8} In its interpretation of this statute prior to Venetie, the Tenth Circuit's analysis was a two-step analysis. See Watchman, 52 F.3d at 1543

. The first step was to determine the appropriate "community of reference." Id. at 1542. In so doing, the "[t]he two guiding principles are: (1) the status of the area in question as a community and (2) consideration of that locale or community of reference within the context of the surrounding area." Frank, 123 N.M. 734,

945 P.2d 464, 1997-NMCA-093, ¶ 9 (internal quotations and citations omitted). The second step was a four-factor test to determine whether the land in question is a dependent Indian community within the meaning of 18 U.S.C. § 1151:

"(1) whether the United States has retained `title to the lands which it permits the Indians to occupy' and `authority to enact regulations and protective laws respecting this territory,'; (2) `the nature of the area in question, the relationship of the inhabitants in the area to Indian tribes and to the federal government, and the established practice of government agencies toward the area,'; (3) whether there is `an element of cohesiveness ... manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality,'; and (4) `whether such lands have been set apart for the use, occupancy and protection of dependent Indian peoples.'"

Watchman, 52 F.3d at 1545 (quoting United States v. South Dakota, 665 F.2d 837, 839 (8th Cir.1981)).

{9} In Venetie, the Supreme Court held that an Alaska Native village occupying former reservation land was not a dependent Indian community because the Alaska Native Claims Settlement Act effectively removed federal supervision of...