State v. Steven B.
| Decision Date | 01 April 2013 |
| Docket Number | Docket No. 31,322 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellant, v. STEVEN B., Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Opinion Number: ___
APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
Gary K. King, Attorney General
James W. Grayson, Assistant Attorney General
for Appellant
Bennett J. Baur, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Appellee
Harrison Tsosie, Attorney General
Paul W. Spruhan, Assistant Attorney General
Window Rock, AZ
for Amicus Curiae Navajo Nation Department of Justice
{1} In State v. Dick, 1999-NMCA-062, 127 N.M. 382, 981 P.2d 796, this Court held thatthe State does not have jurisdiction to prosecute a criminal defendant within Parcel Three of the former Fort Wingate Military Reservation (Parcel Three). A subsequent decision by the United States District Court for the District of New Mexico, United States v. M.C., 311 F. Supp. 2d 1281 (D.N.M. 2004), decided otherwise. In this appeal, the State asks this Court to agree with the federal court decision and overrule its holding in Dick. Because we continue to believe that Parcel Three is within "Indian country" as defined by 18 U.S.C. § 1151 (1949) and discussed in Alaska v. Native Village of Venetie Tribal Government (Venetie), 522 U.S. 520 (1998), we affirm the ruling of the district court dismissing the State's prosecution.
Dick, 1999-NMCA-062, ¶ 3. As further described in Dick, Fort Wingate consists of four separately administered parcels. Id. ¶ 4. The incident in this case took place at Wingate High School, which is located in Parcel Three, the same parcel as in Dick and M.C. Dick, 1999-NMCA-062, ¶ 5; M.C., 311 F. Supp. 2d at 1282.
{3} According to the district court's findings of fact, in 1950, Parcel Three was assigned to the BIA for school purposes, and the BIA operates Wingate High School and Wingate Elementary School on Parcel Three "primarily, but not exclusively, for the education of Indian [c]hildren." The BIA controls all occupancy within Parcel Three except on the privately-owned property, which is surrounded by Parcel Three. The BIA housing is exclusively for students and school employees and their families. The students at the schools are mostly Navajo; ninety-eight percent of the 540 students at the high school, with the remainder from other Indian tribes, and the majority of the 617 students at the elementary school. About seventy-five percent of the high school students and fifty percent of the elementary school students board at the student dormitories. A school board elected at Navajo Nation elections establishes school policies, curriculum, and budget, and the schools also comply with the State of New Mexico educational requirements, including teacher licensure. The principals are BIA employees. With respect to law enforcement protectiveservices, the Navajo Nation, McKinley County Sheriff's Office, and the New Mexico State Police all serve Parcel Three. Utility and fire protective services are not provided by "any Indian Tribe, Indian government, or Indian enterprise." The Navajo Nation has prosecuted misdemeanors that have occurred at the schools in the Navajo Nation courts. M.C., 311 F. Supp. 2d at 1284.
{4} Concluding that it was bound by Dick, the district court granted Child's motion to dismiss. The State appealed.
{5} The central issue before us is whether Parcel Three is within "Indian country" as defined by Congress in 18 U.S.C. § 1151. If Parcel Three, the location of the incident giving rise to the petition charging Child, is within "Indian country," the State would, as a general matter, lack jurisdiction over the case. See Dick, 1999-NMCA-062, ¶ 8 (). Because the State does not contest the facts found by the district court, we review de novo whether the district court correctly applied the law to the facts, viewing the facts in the manner most favorable to Child as the prevailing party. See State v. Frank, 2002-NMSC-026, ¶ 10, 132 N.M. 544, 52 P.3d 404.
{6} 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.
{7} At issue in this case is Subsection (b), whether Parcel Three is within "Indian country" because it is a "dependent Indian community." The United States Supreme Court has interpreted this subsection to include two requirements for a finding of a dependent Indian community, that the land in question (1) "must have been set aside by the Federal Government for the use of the Indians as Indian land;" and (2) "must be under federal superintendence." Venetie, 522 U.S. at 527. The State concedes that Parcel Three is under federal superintendence; it is the first requirement, a federal set aside, that raises the differences in the parties' positions.
{8} In interpreting 18 U.S.C. § 1151, the Supreme Court in Venetie observed that the "federal set-aside requirement ensures that the land in question is occupied by an 'Indian community[.]'" Venetie, 522 U.S. at 531. By footnote, it further observed that some congressional action was necessary "to create or to recognize Indian country." Id. n.6.
{9} The United States Supreme Court stated that 18 U.S.C. § 1151(b) was a codification by Congress of the two requirements that the Court had previously held to be required for a finding of "Indian country" in two cases, United States v. Sandoval, 231 U.S. 28 (1913), and United States v. McGowan, 302 U.S. 535 (1938). Venetie, 522 U.S. at 528-30. Sandoval involved the jurisdiction of the Santa Clara Pueblo land that, although held in fee simple by the Pueblo, was recognized by Congress as the Pueblo's ancestral land and was subject to Congressional enactments "in the exercise of the Government's guardianship over . . . [Indian] tribes and their affairs, including federal restrictions on the lands' alienation." Venetie, 522 U.S. at 528 (alteration in original) (internal quotation marks and citations omitted). The Court held that Congress "could exercise jurisdiction over the Pueblo lands, under its general power over all dependent Indian communities within its borders[.]" Id. (internal quotation marks and citation omitted). In addition, by executive orders, additional public land had been reserved for the Pueblos' "use and occupancy." Id. (internal quotation marks and citation omitted). In McGowan, the government held the land "in trust for the benefit of the Indians residing there." Venetie, 522 U.S. at 529. The Court held that the Government created an Indian colony that had been "validly set apart for the use of the Indians . . . under the superintendence of the Government" was "Indian country." Id. (alteration in original) (internal quotation marks and citation omitted).
{10} M.C., relying on Venetie, Sandoval, and McGowan, concluded, as did the Tenth Circuit in Blatchford v. Sullivan, 904 F.2d 542 (10th Cir. 1990), that the federal set-aside requirement is not met unless the community at issue is "located on tribal lands or land held in trust for Native Americans." M.C., 311 F. Supp. 2d at 1295. In addition, M.C. declined to find a dependent Indian community because the Wingate school community was not "created by Native Americans themselves or the federal government to provide for the use, occupancy[,] and protection of the community." Id.
{11} As discussed in M.C., although the federal cases addressed in Venetie and M.C. do not conclude that there is a dependent Indian community without tribal or trust land, we do not read Venetie to restrict a dependent Indian community to tribal or trust land. M.C., 311 F. Supp. 2d at 1294. Venetie only necessitates a federal set aside and federal superintendence for a finding of a dependent Indian community. Venetie, 522 U.S. at 530. Indeed, the federal set-aside requirement may be more evident if tribal or trust land is involved; nevertheless, such ownership is not required.
{12} M.C. also emphasizes that "no Native American tribe dwells on the land in Parcel Three." 311 F. Supp. 2d at 1295. It discounts that students and staff live at the school or in Parcel Three because such occupancy "is dependent upon attendance or employment at the [s]chool." Id. According to M.C., a federal set aside demands that the resultant communitybe "created by Native Americans themselves or the federal government to provide for the...
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