State v. Warner, No. 7180

• Docket Nº: No. 7180
• Citation: 1963 NMSC 34, 71 N.M. 418, 379 P.2d 66
• Case Date: February 19, 1963
• Court: Supreme Court of New Mexico

Page 66

379 P.2d 66 71 N.M. 418 STATE of New Mexico, Plaintiff-Appellant,
v.
Alvin K. WARNER, Defendant-Appellee. No. 7180. Supreme Court of New Mexico. Feb. 19, 1963.

Page 67

[71 NM 419] W. R. Kegel, Sp. Asst. Atty. Gen., Santa Fe, for appellant.

John Quinn, U. S. Atty., John A. Babington, Asst. U. S. Atty., Albuquerque, amicus curiae.

Baggett & Baggett, Farmington, for appellee.

NOBLE, Justice.

Defendant, who is not an Indian, was charged with driving while under the influence of intoxicating liquors. Based upon a stipulation that the alleged criminal offense occurred within the boundaries of the Navajo Indian Reservation, the trial court dismissed the criminal complaint for lack of jurisdiction. The state has appealed. The single question presented is whether the State of New Mexico has jurisdiction to arrest and try a non-Indian for a criminal offense occurring within an Indian reservation, where no Indian or Indian property is involved.

The trial court was undoubtedly influenced by what it may have considered controlling language in State v. Begay, 63 N.M. 409, 320 P.2d 1017, holding that the New Mexico exclusionary clause, art. XXI, Sec. 2, New Mexico Constitution, denies the state and its courts all jurisdiction over Indian lands unless and until the title of the Indian and Indian tribes has been extinguished thereto.

[71 NM 420] Similar exclusionary clauses, however, were construed by the Supreme Court of the United States in Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573, decided March 5, 1962, as not excluding the state from all jurisdiction to such lands. The court there construed such an exclusionary clause thus:

'The disclaimer of right and title by the State was a disclaimer of proprietary rather than governmental interest.'

State v. Begay, supra, holds that an easement over Indian lands granted to the state for highway purposes does not extinguish the Indian title, and that the state lacks jurisdiction to try an Indian for a criminal offense committed on Indian reservation lands. To that extent we reaffirm the principles of Begay. The language of Begay, denying the state any governmental power over Indians or Indian lands until the title of the Indian or Indian tribes shall have been extinguished, was in effect modified by Your Food Stores, Inc. (NSL) v. Village of Espanola, 68 N.M. 327, 361 P.2d 950, to mean that the state lacks jurisdiction within the boundaries of an Indian reservation, 'except where such jurisdiction has been specifically granted by Act of Congress, or sanctioned by decisions of the Supreme Court of the United States.' It was pointed out in Montoya v. Bolack, 70 N.M. 196, 372 P.2d 387, that Begay need not have been decided on the 'exclusive jurisdiction' basis, because it involved the trial of an Indian for an offense committed on the reservation. In Montoya, we further said: 'There is not and never has been what might be termed 'exclusive federal authority" over Indian lands, merely because the lands are within an Indian reservation. Thus, to the extent that State v. Begay, supra, conflicts with Your Food Stores, Inc. (NSL) v. Village of Espanola, supra, and Montoya v. Bolack, supra, it is expressly overruled.

Page 68

The extent to which a state may exercise its...