U.S. v. M.C.

• Decision Date: 24 March 2004
• Docket Number: No. CR-02-219MV.,CR-02-219MV.
• Citation: 311 F.Supp.2d 1281
• Parties: UNITED STATES of America, Plaintiff, v. M.C. (a juvenile), Defendant.
• Court: U.S. District Court — District of New Mexico

311 F.Supp.2d 1281

UNITED STATES of America, Plaintiff, v. M.C. (a juvenile), Defendant.

No. CR-02-219MV.

United States District Court, D. New Mexico.

March 24, 2004.

Jonathan Gerson, Assistant U.S. Attorney, District of NM, Albuquerque, NM, for Plaintiff.

Benjamin Gonzales, Assistant Federal Public Defender, District of NM, Albuquerque, NM, for Defendant.

Marcelino Gomez, Esq. and Donovan Brown, Esq., Navajo Nation Dept of Justice, Window Rock, AZ, for Navajo Nation.

Peter Tasso, Esq., Albuquerque, NM, for Zuni Tribe.

Arthur W, Pepin, Esq., NM Attorney General's Office, Santa Fe, NM, for State of New Mexico.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, Chief Judge.

THIS MATTER comes before the Court on Defendant M.C.'s Motion to Dismiss Indictment for Lack of Jurisdiction, filed May 14, 2002. The Court, having considered the motion, briefs, relevant law and being otherwise fully informed, finds that the motion is well taken and will be GRANTED.

BACKGROUND

The indictment charges Defendant, a juvenile, with second degree murder in violation of 18 U.S.C. § 5031, et seq., § 1153 and § 1111. The alleged offense occurred at the Fort Wingate Indian School (the "School") in McKinley County, New Mexico. "Fort Wingate" is a tract of 100 square miles designated in 1870, and an additional 30 square miles designated in 1881, as a military reservation. In 1950, Congress enacted Public Law 567 transferring to the Department of the Interior, for use by the Bureau of Indian Affairs ("BIA"), 13,150 acres of the Fort Wingate Military Reservation determined to be surplus to the requirements of the Department of the Army. Title to the transferred land was to remain in the United States for the use of the BIA. Currently, the Fort Wingate area remains titled in the federal government, with the exception of sixteen privately owned acres of land.

The federal government's holdings in Fort Wingate are now four separately administered parcels. The School, along with Wingate Elementary School, is located on Parcel Three. To the north of Parcel Three is Parcel One, which is administered by the BIA in trust for the Navajo Nation. This area is referred to as the Iyanbito. Parcel Two, south of Parcel One and west of Parcel Three, is administered by the Department of Defense. Parcel Four is south of Parcel Three and is administered by the United States Forestry Service.

In 1990, after a determination that sixteen acres of Parcel Three were excess to the needs of the BIA, the government sold those sixteen acres to an individual named Paul Merrill. The privately owned Merrill Property is the "commercial hub" of the area, containing a small restaurant, a gas station, a trailer park, a United States Post Office and rental apartments. With the exception of the Paul Merrill Property, Parcel Three continues to be administered by the BIA. The BIA is responsible for and has authority over all land use within the boundaries of Parcel Three, including the issuance of permits and easements and the determination of whether land is excess to its needs. No tribal government has the authority to determine the use, occupancy or transfer of any part of the land on Parcel Three.

The School campus on Parcel Three comprises approximately fifty-three acres of land and includes dormitories, classrooms, a laboratory, a gymnasium, a cafeteria, staff housing and a cattle-grazing area. The purpose of the School is to educate Native American children in grades nine through twelve. During the 2002-2003 academic year, there were 731 students enrolled in the School. All of the students are Native American. The majority of the students are from the Navajo Reservation, although there are also students from North Dakota, South Dakota, southern Arizona, the Hopi Reservation and the Zuni Tribe. Eighty percent of the students board at the School and the remaining twenty percent are day students who mostly reside in the Gallup area. Approximately twenty students live in the trailer park on the Merrill Property. There are boarding students who reside at the School during the regular academic session, from August through May, and during the summer session for four to five weeks. Students do not reside in the dormitories during Christmas vacation and Spring vacation or once they have graduated. There are approximately 200 staff members at the School, fifty of whom are teachers. Some staff members live in rental housing on the School campus. The remainder of the staff live in the Iyanbito, the Gallup area and in rental apartments and trailers on the Merrill Property.

As with all of the BIA-operated schools around the United States, whether on-reservation or off-reservation, the School is run by the BIA. All of the funding for the School comes from Congress and is administered by the BIA, including maintenance of the School property and payment of the School's bills. The School has a principal, who is an employee of the BIA. In accordance with federal statute, the School has a Board which is appointed by the Navajo Nation council. See 25 U.S.C. § 2021. The Navajo Nation council also determines how many members will be on the Board. The School's Board has seven members, each of whom comes from a chapter of the Navajo Nation that has students at the School. The Board determines and approves school policies, the curriculum and the budget. The principal can appeal the Board's decisions to the BIA which has the power to overturn the Board's decisions. At the hearing, Principal Adam Bull testified that, in his experience, the BIA has never overturned a policy implemented by the School Board.

Water for the School comes from five wells which are located on School property and which are maintained by facilities staff employed by the School. Food is not produced at the School but rather is ordered from a company called Nobel-Sysco located in Albuquerque. There are no electricity or gas generating capabilities at the School. Gallup Joint Utilities supplies electricity and gas to the School. There are no telephone communication facilities on the School property. All such services are provided by Qwest. Outside of the campus grounds but within Parcel Three, there are four churches — Baptist, Church of the Latter Day Saints, Christian Reform and Catholic. The closest Navajo chapter house is located in the Iyanbito. The BIA has granted easements for the utility lines, telephone service and churches on Parcel Three.

For medical services, students and staff of the School generally go to the Gallup Indian Medical Center. Ambulance service is provided exclusively by Med Star which is located in Gallup. There are no mental health treatment facilities at the School. There is a clinic on the School campus which is run by Indian Public Health Services and staffed by a part-time nurse and three or four dentists. The nurse spends one day each week for approximately four hours at the clinic. In addition, physicians occasionally staff the clinic. Access to the clinic is not limited to students and staff at the School but is limited to Native Americans. Individuals who live on Parcel Three, the Iyanbito and surrounding areas all use the dental and medical services provided at the clinic. There is a volunteer fire department located on Parcel Three.

Canteens on the School campus are open when the School is in session. There is a School bank which is available to students during the School term. There are no movie theaters, concert venues, restaurants, grocery stores or stores of any kind at the School. The School, however, does provide entertainment for the students. The only grocery store and only restaurant within the boundaries of Parcel Three are located on the Merrill Property.

With regard to the provision of law enforcement services, Principal Bull testified that the Navajo Nation has prosecuted misdemeanor offenses that occurred at the School. In addition, Principal Bull testified that, in non-emergency situations requiring law enforcement, the School contacts the Navajo police. According to Principal Bull, in emergency situations, calls are made to 911.

Sandra Sweeney, the director of communications for McKinley County Metropolitan Dispatch Authority, testified that when a call is made to 911 from the School, dispatch normally sends a deputy from the McKinley County Sheriff's Office. If a sheriff's deputy is not available, dispatch sends a state police unit. If a state police unit is not available, dispatch contacts the Navajo police. If the call is reporting a potentially violent situation or a situation in progress, dispatch sends someone from each of the three law enforcement agencies: the Sheriff's office, the New Mexico State police and the Navajo police. Ms. Sweeney testified that because the Navajo police has a very large area to cover and a low number of officers, it often takes days for a Navajo police officer to respond to a call. For this reason, she testified, it is dispatch's practice to call the Sheriff's office or the State police before contacting the Navajo police. Ms. Sweeney testified that, in her experience, the Sheriff's office is the law enforcement agency sent most often to respond to calls from the School.

Walter Edward Marble, a patrol sergeant for the Navajo police, testified that, with regard to providing law enforcement services, the Navajo police does not make any distinction between the treaty trust portion of the Navajo Nation on Parcel One and the School and its surrounding area on Parcel Three. Sergeant Marble testified that the Navajo police is the primary law enforcement agency for this entire area. In addition, Sergeant Marble testified that, in years past, the Navajo police has exchanged cross-commissions with the McKinley County Sheriff's office and the State police. Under these cross-commissions, the closest responding officer would arrive at the scene and ensure that the case was investigated by the appropriate agency. According to Sergeant...