State v. Romero, 28,410.

• Court: Supreme Court of New Mexico
• Citation: 142 P.3d 887,2006 NMSC 039
• Docket Number: No. 28,688.,No. 28,410.,28,410.,28,688.
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Del E. ROMERO, Defendant-Petitioner.
• Decision Date: 14 June 2006

Page 887

142 P.3d 887 2006 NMSC 039 STATE of New Mexico, Plaintiff-Respondent,
v.
Del E. ROMERO, Defendant-Petitioner. No. 28,410. No. 28,688. Supreme Court of New Mexico. June 14, 2006. Rehearing Denied August 30, 2006. As Revised September 12, 2006.

Page 888

John Bigelow, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Pueblo of Pojoaque Legal Department, Frank A. Demolli, Santa Fe, NM, for Petitioners.

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Respondent.

Rothstein, Donatelli, Hughes, Dahlstrom & Bienvenu, L.L.P., Richard W. Hughes, Caren I. Friedman, Santa Fe, NM, for Amicus Curiae Pueblo of Santa Clara.

Nordhaus, Haltom, Taylor, Taradash & Bladh, L.L.P., Jill E. Grant, Stephen H. Greetham, Albuquerque, NM, for Amici Curiae Pueblos of Laguna, San Juan, Santa Ana and Taos.

Chestnut Law Offices, Peter C. Chestnut, Ann Berkley Rodgers, Albuquerque, NM, for Amicus Curiae Pueblo of Acoma.

Pueblo of Tesuque Legal Department, Mekko Miller, Santa Fe, NM, for Amicus Curiae Pueblo of Tesuque.

Roth, VanAmberg, Rogers, Ortiz, Fairbanks & Yepa, L.L.P, David R. Yepa, Albuquerque, NM, for Amici Curiae Pueblos of Cochiti and Jemez.

Sonosky, Chambers, Sachse, Endreson & Mielke, L.L.P., David C. Mielke, Albuquerque, NM, for Amici Curiae Pueblos of Isleta, Sandia and Zia.

Pueblo of Pojoaque Legal Department, Frank Demolli, Jana C. Werner, Santa Fe, NM, for Amicus Curiae Pueblo of Pojoaque.

White, Koch, Kelly & McCarthy, P.A., Albert V. Gonzales, Santa Fe, NM, for Amicus Curiae Pueblo of Zuni.

Kenneth H. Bobroff, Albuquerque, NM, for Amici Curiae American Indian Law Center, Inc., and UNM Native American Law Students Association.

OPINION

SERNA, Justice.

{1} The State of New Mexico charged Defendant Romero for alleged crimes on privately-owned land within the exterior boundaries of Taos Pueblo and Defendant Gutierrez for alleged crimes on privately-owned fee land within the exterior boundaries of Pojoaque Pueblo. Both Defendants challenged the indictments due to the State's lack of jurisdiction to prosecute Indians in Indian country and petitioned this Court to determine whether the State has jurisdiction.¹ We conclude that the State does not have jurisdiction to prosecute Defendants for alleged crimes occurring within the exterior boundaries of the pueblos; therefore, we affirm the district courts and reverse the Court of Appeals.

I. FACTS AND PROCEDURAL POSTURE

{2} Defendant Del E. Romero is an enrolled member of Taos Pueblo. On June 19, 2001, a State of New Mexico Grand Jury indicted Defendant Romero for alleged aggravated battery against another enrolled member of Taos Pueblo. Defendant Romero moved to dismiss the indictment on August 13, 2001, due to the State's lack of jurisdiction because the State indicted him for alleged acts within the exterior boundaries of Taos Pueblo. The State contested this assertion and argued that the alleged acts occurred at privately-owned Pueblo Alegre Mall within the boundaries of Taos Town, and outside the exterior boundaries of Taos Pueblo. The parties eventually agreed that the incident occurred on private property within Taos Town and within the exterior boundaries of the Taos Pueblo Land Grant. The district court concluded that the State did not have jurisdiction and dismissed the

Page 889

indictment on December 7, 2001. The State appealed.

{3} Defendant Matthew A. Gutierrez is an enrolled member of Pojoaque Pueblo. On August 25, 2002, Pojoaque Pueblo Tribal Police arrested Defendant Gutierrez after a stabbing incident. Defendant Gutierrez was arraigned in Pojoaque Tribal Court on August 29, 2002, for assault, battery, carrying a concealed weapon, criminal negligence, and disorderly conduct in violation of Pojoaque Pueblo Tribal Law and Order Code. He did not contest the tribal court's jurisdiction. The Pojoaque Pueblo Tribal Police Department contacted the Bureau of Indian Affairs, which commenced an investigation and referred the matter to the United States Attorney for the District of New Mexico for prosecution. After the commencement of the tribal prosecution, the State of New Mexico indicted Defendant Gutierrez on September 13, 2002, for the same incident. The State charged aggravated battery with a deadly weapon, child abuse, and battery against a household member. The alleged victims are non-Indians. Pojoaque Pueblo Chief Judge Edie Quintana entered a Memorandum Opinion and Declaratory Judgment on October 7, 2002, declaring that the tribal court had jurisdiction. Defendant moved to dismiss the State indictment on January 27, 2003, due to the State's lack of jurisdiction. The State and Defendant Gutierrez disputed whether the alleged crimes occurred in Indian country. The parties agree that the alleged crime occurred within the exterior boundaries of the Pojoaque Pueblo on non-Indian fee land owned by Defendant Gutierrez's father-in-law, Ben Garcia. The district court dismissed the case due to the State's lack of jurisdiction. The State appealed. The Court of Appeals reversed the district courts in both cases in split decisions. State v. Romero, 2004-NMCA-012, 135 N.M. 53, 84 P.3d 670; State v. Gutierrez, No. 24,731 (Ct. App. May 20, 2004).

{4} In addition to the contemporary facts specific to the pending cases, historical facts are also relevant to resolving the jurisdictional dispute. Taos Pueblo was settled in approximately 1000 A.D. Rubén Sálaz Márquez, New Mexico: A Brief Multi-History 4 (1999). Our government has previously recognized that Pojoaque Pueblo has been inhabited since approximately 850-1100 A.D. See Department of the Interior, National Park Service, Notice of Inventory Completion for Native American Human Remains and Associated Funerary Objects from New Mexico in the Possession of the Museum of Indian Arts and Culture/Laboratory of Anthropology, Museum of New Mexico, Santa Fe, N.M., 63 Fed.Reg. 35,608 (June 30, 1998). In 1540, the pueblo people encountered their first European, Francisco Vásquez de Coronado. Sálaz Márquez, supra, at 14. In 1598, Juan de Oñate claimed for Spain land that is now New Mexico and met with the pueblo people to explain his colonizing efforts. Id. at 19, 23. Between 1684 and 1691, Governor Jironza Cruzate made land grants on behalf of Spain of approximately 17,000 acres to each pueblo, id. at 69-70, which started the chain of title that is recognized by this state's modern-day property law system. In 1821, the land over which this Court is now supreme changed hands from Spain to Mexico. Id. at 170. In 1850, New Mexico became a United States territory. Id. at 243. Congress then confirmed Taos and Pojoaque Pueblos' land grants. Act of December 22, 1858, 35th Cong., 11 Stat. 374 (1859). Prior to statehood, the United States Congress passed New Mexico's Enabling Act, which confirmed the grants made to the Territory of New Mexico. H. Res. 18166, 61st Cong., 36 Stat. 557 (1910). In 1912, New Mexico became a state. Sálaz Márquez, supra, at 424. Then, in 1924, the Pueblo Lands Act recognized this history. In 1948, Congress passed an Indian country criminal jurisdiction statute, 18 U.S.C. § 1151 (1948). In 1998, the United States Supreme Court decided Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) and came down with the set aside and superintendence standard.

{5} Consistent with this history, the district judge in Defendant Romero's case regarding Taos Pueblo decided that the land in question was clearly within the exterior boundaries of the pueblo grant. In Defendant Gutierrez's case within Pojoaque Pueblo, the district judge found as a fact that,

Page 890

"[t]he site of the alleged crime has been `Indian country' for hundreds of years and has been acknowledged as such by the federal government."

II. STANDARD OF REVIEW

{6} Statutory construction is a question of law that is reviewed de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). This Court defers to a district court's fact determinations if such findings are supported by substantial evidence. State v. Frank, 2002-NMSC-026, ¶ 10, 132 N.M. 544, 52 P.3d 404. In this case, we defer to the district courts' findings of facts because they are supported by substantial evidence.

III. ANALYSIS

A. Indian Country

{7} We are called upon to determine whether the State has jurisdiction to prosecute alleged crimes committed by Defendant Indians on private fee land within the exterior boundaries of Defendants' respective pueblos. If the land in question is Indian country, the State prosecution must be dismissed. Resolving this requires an interpretation of federal law because Congress has codified in 18 U.S.C. § 1151 what lands are "Indian country" for purposes of criminal prosecution. Even though our state judiciary has confronted this issue before, we base our decision in these cases on federal law because the laws of the United States "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby. . . ." U.S. Const. art. VI, cl. 2. The criminal jurisdiction statute, 18 U.S.C. § 1151, states:

Except as otherwise provided in sections 1154 and 1156 of this title, the term "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} The federal statutes we apply demand the outcome that jurisdiction not rest with the State. We note,...