State v. Ortiz

• Decision Date: 23 December 1986
• Docket Number: No. 9377,9377
• Citation: 1986 NMCA 131,105 N.M. 308,731 P.2d 1352
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Angus R. ORTIZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1352

731 P.2d 1352

105 N.M. 308

STATE of New Mexico, Plaintiff-Appellee, v. Angus R. ORTIZ, Defendant-Appellant.

No. 9377.

Court of Appeals of New Mexico.

Dec. 23, 1986.

[105 N.M. 309] Jacquelyn Robins, Chief Public Defender, Deborah A. Moll, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Paul G. Bardacke, Atty. Gen., Patricia Frieder, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

MINZNER, Judge.

Defendant, an Indian, was arrested and subsequently charged with burglary and larceny, crimes which stemmed from the unauthorized entry of a motor vehicle belonging to a non-Indian. The incident occurred within the corporate limits of Espanola. However, the area where the incident occurred is also within the exterior boundaries of the San Juan Pueblo (Pueblo). The incident occurred either on privately-held land of a non-Indian, or upon a public thoroughfare which runs through the area, in a residential area used and occupied primarily by non-Indians.

It is not disputed that the Espanola municipal government provides essential governmental services, including police services, to the area. Defendant pled guilty in district court to one count of burglary, expressly reserving his right to appeal the court's jurisdiction. The court denied defendant's motion to dismiss, ruling that it had jurisdiction over the crimes and over defendant.

Defendant filed his notice of appeal prior to entry of judgment and sentence but after a sentencing hearing, at the end of which the district court announced its disposition. Under these circumstances, we conclude defendant perfected a timely appeal from a final judgment. See NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 202(a) (Repl.Pamp.1983); cf. State v. Garcia, 99 N.M. 466, 659 P.2d 918 (Ct.App.1983) (trial court was without jurisdiction to enter judgment and sentence during pendency of appeal); see also State v. Harris, 101 N.M. 12, 677 P.2d 625 (Ct.App.1984).

The issue on appeal is whether the state district court had subject matter jurisdiction to try defendant for the charge of burglary. Pivotal to the issue raised by defendant is whether the situs of the alleged offense, involving lands lying within the exterior boundaries of San Juan Pueblo, is "Indian country" within the meaning of 18 U.S.C. Section 1151 (1982), thus depriving the state of jurisdiction to prosecute defendant. Other issues, raised in the docketing statement but not briefed, are deemed abandoned. State v. Maes, 100 N.M. 78, 665 P.2d 1169 (Ct.App.1983). We reverse and remand with instructions to dismiss the indictment against defendant and discharge him.

DISCUSSION.

Generally, New Mexico lacks jurisdiction to prosecute criminal charges against Indians for offenses committed within the boundaries of an Indian reservation except where such jurisdiction has been specifically granted by Congress or sanctioned by a decision of the United States Supreme Court. See State v. Warner, 71 N.M. 418, 379 P.2d 66 (1963); see generally Crosse, Criminal and Civil Jurisdiction in Indian Country, 4 Ariz.L.Rev. 57 (1962-63). The underlying rationale for this principle is non-interference with Indian sovereignty. See Ryder v. State, 98 N.M. 316, 648 P.2d 774 (1982). Although the principle sometimes results in deference to tribal jurisdiction, on these facts the problem is whether Congress has provided exclusive federal jurisdiction. We conclude that it has.

Pursuant to its constitutional authority, Congress has enacted the Major Crimes Act, which provides that the United States has exclusive jurisdiction over certain enumerated crimes committed within "Indian country" by an Indian against another Indian or any other person. 18 U.S.C. Sec. 1153 (Supp.III 1985). The crime of burglary is included as a major crime in the federal Act. Id.

18 U.S.C. Section 1151 defines "Indian country" 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.

The principal test for determining whether a tract of land is "Indian country" within the meaning of Subsection 1151(a) for the purposes of the Major Crimes Act is whether the land in question has been validly set apart for the use of Indians as such, under the superintendence of the United States government. See United States v. John, 437 U.S. 634, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978). By its terms the test has several parts: (1) the federal government must have recognized an area as subject to Congressional authority for the use of Indians; (2) the authority must be a valid exercise of Congressional power; and (3) the area must be subject to Congressional authority at the present time. In applying the test, the Supreme Court has examined legislative history, and the past and present relationship of the United States government to the Indian tribe, in order to reach an appropriate conclusion about the land in question. Id.; see also United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938); United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914).

Our supreme court has observed that the terms of Section 1151(a) largely overlap with the terms of Section 1151(b). See Blatchford v. Gonzales, 100 N.M. 333, 670 P.2d 944 (1983), cert. denied, 464 U.S. 1033-34, 104 S.Ct. 691, 79 L.Ed.2d 158 (1984). "[I]t is apparent that Indian reservations and dependent Indian communities are not two distinct definitions of place, but definitions which largely overlap." Id. at 335, 670 P.2d at 946. On the facts, we apply the principal test in resolving the appellate issue. The answer brief filed by the state concedes that, "[t]aken as a whole, congressional action as well as case law largely supports defendant's position in the case at bar."

The lands of the Pueblo, like those of other New Mexico pueblos, are held and occupied pursuant to a grant made by the Spanish government during the time when New Mexico was a Spanish possession. That grant subsequently was confirmed by the Mexican government after it declared independence from Spain, and then by Congress after the territorial cessions made by the Treaty of Guadalupe Hidalgo. See United States v. Chavez, 290 U.S. 357, 54 S.Ct. 217, 78 L.Ed. 360 (1933); Pueblo Indian Land Grants Act of 1924, ch. 331, 43 Stat. 636.

The terms upon which New Mexico was admitted to the Union recognized the lands owned or occupied by Pueblo Indians as "Indian country." See generally Your Food Stores, Inc. (NSL) v. Village of Espanola, 68 N.M. 327, 361 P.2d 950 (1961). Lands owned or occupied by Pueblo Indians are subject to the legislation of Congress, see United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913), and the Pueblo Indians have a relationship to the United States government that is comparable to the relationship between that government and any other recognized tribe of Indians. See Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985); United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023 (1926).

The state argues that in United States v. Sandoval the Supreme Court established what has been referred to as the "functional approach" test, see United States v. Martine, 442 F.2d 1022 (10th Cir.1971), to determine that the Santa Clara Pueblo was a dependent Indian community, and therefore "Indian country." In United States v. Martine, the court approved the trial court's inquiry " 'as to the nature of the area in question, the relationship of the inhabitants of the area to Indian Tribes and to the federal government, and the established practice of government agencies toward the area.' " United States v. Mound, 477 F.Supp. 156, at 158 (D.S.D.1979) (quoting United States v. Martine, 442 F.2d at 1023). The state suggests that the same test is relevant in determining the status of the area within the San Juan Pueblo where the offenses charged in this case occurred. We disagree, for the following reasons.

The definition of "Indian country" did not include land within the boundaries of a reservation at the time United States v. Sandoval was decided. Congress did not include the term "reservation" in the definition of "Indian country" until 1948. See United States v. John. Thus, the Sandoval Court identified the pueblo in question as a distinctive Indian community in order to conclude that Congress had jurisdiction to legislate with respect to the lands then held or occupied by Pueblo members. The approach employed in United States v. Sandoval extended Congressional authority over Pueblo lands by construing the relevant constitutional provision to include the Pueblo Indians. See generally State v. Dana, 404 A.2d 551 (Me.1979), cert. denied, 444 U.S. 1098, 100 S.Ct. 1064, 62 L.Ed.2d 785 (1980). It would be anomalous to apply the "functional approach" test in this case, because the result would be to expand state court jurisdiction. Under the relevant rule of construction, "doubtful expressions" should be resolved in favor of limiting state jurisdiction. See Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962).

For purposes of Section 1153, we see no reason why the Pueblo should not enjoy the same sovereignty over its formally designated land as an Indian tribe occupying lands formally designated as a reservation. See ...