State v. Romero, No. 22,836.

• Docket Nº: No. 22,836.
• Citation: 84 P.3d 670, 2004 NMCA 12, 135 N.M. 53
• Case Date: November 11, 2003
• Court: Court of Appeals of New Mexico

84 P.3d 670
135 N.M. 53
2004 NMCA 12

STATE of New Mexico, Plaintiff-Appellant,
v.
Del E. ROMERO, Defendant-Appellee

No. 22,836.

Court of Appeals of New Mexico.

November 11, 2003.

Certiorari Granted January 20, 2004.

84 P.3d 671

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

John B. Bigelow, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

Lester K. Taylor, Stephen H. Greetham, Nordhaus, Haltom, Taylor, Taradash & Bladh, L.L.P., Albuquerque, NM, for Amicus Curiae, Taos Pueblo.

Frank A. Demolli, Pueblo of Pojoaque Legal Department, Santa Fe, NM, for Amicus Curiae, Pueblo of Pojoaque.

Certiorari Granted No. 27,411, January 20, 2004.

OPINION

ALARID, Judge.

{1} This case presents a question of the State's jurisdiction to prosecute a member of Taos Pueblo charged with committing an aggravated battery upon another member of Taos Pueblo on land located within the original boundaries of the land grant from the King of Spain to Taos Pueblo, but which is now part of the town of Taos, New Mexico. We hold that by operation of federal law, the land on which the alleged crime occurred is no longer Indian country, and that the State has jurisdiction to prosecute Defendant.

BACKGROUND

{2} Defendant-Appellee, Del E. Romero, was indicted by a Taos County grand jury on one count of aggravated battery, stemming from an incident at the Pueblo Allegre Mall in the town of Taos, New Mexico. Defendant moved to dismiss the charge against him on the ground that he is an Indian, that the Pueblo Allegre Mall is located in Indian country, and that New Mexico lacked subject matter jurisdiction to prosecute criminal charges against an Indian for an offense committed in Indian country. Defendant requested an evidentiary hearing on his motion to dismiss. The State filed a short response asserting that the Pueblo Allegre Mall is "within the geographical boundaries of the Town of Taos, and outside the exterior boundaries of the Taos Pueblo."

{3} The trial court held an evidentiary hearing. Defendant and the State stipulated that both Defendant and the alleged victim are members of Taos Pueblo. The evidence presented to the trial court included various maps of the town of Taos and the lands surrounding Taos Pueblo.

{4} Defendant, citing State v. Ortiz, 105 N.M. 308, 731 P.2d 1352 (Ct.App.1986), argued that federal law preempted state criminal jurisdiction in Indian country. According to Defendant, the Pueblo Allegre Mall is located on land that was owned by Taos Pueblo at the time New Mexico was admitted as a state, and therefore is included within the definition of Indian country set out in Article XXI, Section 8 of the New Mexico Constitution: "lands owned or occupied by

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[the Pueblo Indians] on the twentieth day of June, nineteen hundred and ten, or which are occupied by them at the time of the admission of New Mexico as a state."

{5} The State, referring to a plat prepared by the Pueblo Lands Board, argued that Pueblo title to the tract on which the Pueblo Allegre Mall is located had been extinguished pursuant to the Pueblo Lands Act, ch. 331, 43 Stat. 636 (1924) (the PLA).

{6} In a letter decision, the trial court found that the Pueblo Allegre Mall is located on privately owned property within the town limits of Taos, in an area "within the original exterior boundaries of the Taos Pueblo Grant." The trial court further found that Pueblo title to the land underlying the Pueblo Allegre Mall was "extinguished" pursuant to the PLA. Applying Ortiz, the trial court held that extinguishment of Pueblo title pursuant to the PLA did not "diminish or change" the boundaries of Taos Pueblo. The trial court concluded that the State lacked subject matter jurisdiction. The trial court entered a separate order of dismissal, incorporating its letter decision.

{7} The State filed a timely notice of appeal.

DISCUSSION

{8} Under federal law, the United States has exclusive jurisdiction to prosecute certain serious offenses committed by Indians within Indian country. 18 U.S.C. § 1153 (2000); Ortiz, 105 N.M. at 310, 731 P.2d at 1354 (discussing exclusive federal jurisdiction under Major Crimes Act). There is no dispute that Defendant is an enrolled member of Taos Pueblo, and that the offense with which he is charged—aggravated battery causing serious bodily harm—is one of the offenses listed in § 1153. Further, as previously noted, the trial court found that the Pueblo Allegre Mall is located on privately owned property within the town limits of Taos, in an area "within the original exterior boundaries of the Taos Pueblo Grant," and that Pueblo title to the land underlying the Pueblo Allegre Mall was extinguished pursuant to the PLA. These findings are not attacked by either party to this appeal and we therefore accept them as operative facts for purposes of this appeal. This appeal ultimately turns upon a question of law: did extinguishment of the Pueblo title to the lands underlying the town of Taos pursuant to the PLA permanently change the jurisdictional status of this land? We conclude that it did, and that the 926 acres underlying the town of Taos as to which title was quieted against Taos Pueblo pursuant to the PLA are not Indian country. Accordingly, the State may prosecute Defendant for his alleged offense.

Indian Country Defined

{9} In 1948 Congress enacted the current definition of Indian country:

"Indian country" ... 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 ..., and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

18 U.S.C. § 1151(2000). For the State to prevail, we must be persuaded that Pueblo Allegre Mall is not located within any of the three categories of lands comprising Indian country set out in § 1151.

{10} There is no serious question as to the inapplicability of Subsection (c). Allotment is a term of art in Indian law "referring to land owned by individual Indians and either held in trust by the United States or subject to a statutory restriction on alienation." Felix S. Cohen's Handbook of Federal Indian Law 40 (Rennard Strickland, et al., eds.1982) (hereinafter "Cohen"). The lands comprising the Taos Pueblo land grant are owned communally, and therefore are not allotments. See United States v. Chavez, 290 U.S. 357, 360, 54 S.Ct. 217, 78 L.Ed. 360 (1933) (observing that the lands of Isleta Pueblo, "like those of other pueblos of New Mexico" are owned communally).

{11} We are also satisfied that Subsection (a) is not applicable in the present case. At one time it was generally accepted, and we so held, that the categories of Indian

84 P.3d 673

lands described in Subsections (a) and (b) were largely interchangeable for purposes of jurisdictional analysis. Cohen at 38; Ortiz, 105 N.M. at 310, 731 P.2d at 1354. However, that position is no longer tenable. In Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998), the United States Supreme Court held that dependent Indian communities "refers to a limited category of Indian lands that are neither reservations nor allotments." Id. at 527 (emphasis added). There can be no question that the Taos Pueblo land grant is a dependent Indian community: the very term "dependent Indian communities" was adopted in United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913), to describe New Mexico Pueblos. Indeed, "[t]he entire text of § 1151(b), and not just the term `dependent Indian communities,' is taken virtually verbatim from Sandoval." Venetie, 522 U.S. at 530, 118 S.Ct. 948; see also Cohen at 34 (characterizing Subsection (b) as "codifying" the phrase "dependent Indian communities"). As a dependent Indian community the Taos Pueblo land grant by definition is not an Indian reservation.¹ Applying Venetie, we hold that if the situs of the alleged crime in this case is Indian country, it is by operation of Subsection 1151(b)

The PLA

{12} Early decisions of the territorial supreme court and the United States Supreme Court held that Pueblo Indians of New Mexico, unlike other Indians, were not in a state of tutelage and that neither the Pueblo Indians nor their property were under the guardianship of the federal government. E.g., United States v. Joseph, 94 U.S. 614, 24 L.Ed. 295 (1876). As a result of these cases, it was understood that Pueblo Indians could convey good title to Pueblo lands notwithstanding federal law generally restricting the alienation of Indian lands. Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 240-42, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985). "Relying on the rule established in Joseph, 3,000 non-Indians had acquired putative ownership of parcels of real estate located inside the boundaries of the Pueblo land grants." Id. at 243.

{13} In 1910 Congress enacted enabling legislation contemplating the admission of New Mexico as a state. New Mexico Enabling Act, ch. 310, 36 Stat. 557 (1910). As a condition of admission, Congress required the people of New Mexico to enact "an ordinance irrevocable without the consent of the United States and the people [of New Mexico]" recognizing that lands "now owned or occupied by the Pueblo Indians of New Mexico" were Indian country.² New Mexico Enabling Act, ch. 310, § 2, 36 Stat. at 558. In view of the Joseph decision, there was a substantial question as to whether Congress had the authority under the Indian Commerce Clause to define Pueblo lands as Indian country. In Sandoval, the United States Supreme Court upheld the Enabling Act as a valid exercise of Congress's power...