STATE V. DICK, 1999-NMCA-062, 127 N.M. 382, 981 P.2d 796
CASE HISTORY ALERT: affected by
2015-NMSC-020
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
GILBERT DICK, Defendant-Appellant.
Docket No. 18,969
COURT OF APPEALS OF NEW MEXICO
1999-NMCA-062, 127 N.M. 382, 981 P.2d 796
March 18, 1999, Filed
APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY. JOSEPH L. RICH, District Judge.
Released for Publication May 20, 1999. Certiorari granted, No. 25,691, May 7, 1999.
COUNSEL
PATRICIA A. MADRID, Attorney General, RALPH E. TRUJILLO, Ass't Attorney General, Santa Fe, NM, for Appellee.
PHYLLIS H. SUBIN, Chief Public Defender, LAUREL A. KNOWLES, Ass't Appellate Defender, Santa Fe, NM, for Appellant.
HERB YAZZIE, Navajo Nation Attorney General, MARCELINO R. GOMEZ, Ass't Attorney General, Window Rock, AZ, for Amicus Curiae.
JUDGES
LYNN PICKARD, Chief Judge. WE CONCUR: MICHAEL D. BUSTAMANTE, Judge, M. CHRISTINA ARMIJO, Judge.
OPINION
{*382} OPINION
PICKARD, Chief Judge.
FACTUAL AND PROCEDURAL BACKGROUND
Parcel one, to the north, is administered by the BIA in trust for the Navajo Nation. Parcel two, south of parcel one and west of parcels three and four, is administered by the United States Department of Defense. Parcel three, south of parcel one and east of parcel two, is administered by the BIA. Parcel four is directly south of parcel three, and is administered by the United States Forestry Service. Defendant was arrested on parcel three. The district court viewed parcels two, three, and four as the proper community of reference on which to base the determination of whether Fort Wingate is properly considered a "dependent Indian community" under 18 U.S.C. § 1151(b) (1994). The district {*384} court went on to apply the four-factor test set forth in Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1545 (10th Cir. 1995), for assessing whether Fort Wingate is a "dependent Indian community." The district court found that parcel three housed a high school and an elementary school, that the high school's student body was 90% Navajo, the remainder being from other Indian tribes, and that about 75% of the students lived on campus. The district court concluded that "parcel 3 is land held by the BIA for purposes of primarily educating Indian children, but not specifically for the use, occupancy and protection of dependent Indian peoples."
DISCUSSION
A. Standard of Review
B. "Indian Country"
"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.
In this appeal, however, only the second form of "Indian country," that is, "dependent Indian communities," is at issue.
1. "Dependent Indian Community"
The federal set-aside requirement ensures that the land in question is occupied by an "Indian community"; the federal superintendence requirement guarantees that the Indian community is sufficiently "dependent" on the Federal Government that the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question.
522 U.S. at 527-528, 118 S. Ct. at 955 (footnotes omitted).
{*386} {15} a. Federal Set-Aside
{16} The district court made no specific finding of whether or not the land in question was "set aside" for Indian use. The district court found that "parcel 3 was administratively assigned to the BIA in 1950 for school purposes" and that "there is no trust language in the administrative assignment directing the BIA to hold the land for use, occupancy or protection of any Indian tribe." However, all that is required under the first prong of the Venetie test is that the land be "set aside" by the federal government for Indian use. See Venetie, 522 U.S. at 524-525, 118 S. Ct. at 953. Public Law 567 did, in fact, set aside the land "for use by the Bureau of Indian Affairs." Although specific trust language is not used in the Act, it need not be. The statement that "Title to the land so transferred shall remain in the United States for the use of the Bureau of Indian Affairs" is sufficient to satisfy Venetie's federal set-aside requirement.
{17} The status of the land as housing a school community does not remove it from the set-aside requirements set out in Venetie. Rather, "the federal set-aside requirement ensures that the land in question is occupied by an 'Indian community.'" Venetie, 522 U.S. at 531, 118 S. Ct. at 955. The use of land for schooling of an Indian community appears to be a "use" consistent with the set-aside requirement.
{18} The Oklahoma Court of Criminal Appeals has held that a similar land area, used and administered by the BIA for Indian schools, met the requirement that the land be "validly set apart for the use of Indians as such, under the superintendence of the government" when an executive order "set aside [the land] for the settlement of such friendly Indians . . . as have been or who may hereafter be educated at the Chilocco Indian Industrial School" and when Congress ratified an agreement between the Cherokee Nation and the United States stating the lands were reserved "for use of and in connection with the Chilocco Indian Industrial School," as well as for the purposes set forth in the executive order. C.M.G. v. Oklahoma, 1979 OK CR 39, 594 P.2d 798, 800, 801, 802 (Okla. Crim. App. 1979).
{19} In C.M.G., the circumstances were similar to those facing us in the instant case. All students enrolled at the BIA schools were at least one-quarter Indian and from various tribes, although non-Indians were permitted to attend. See 594 P.2d at 799-800. The vast majority of the school's employees were Indian, and some were housed at the school. See id. at 799. The school property was owned by the United States government. See 594 P.2d at 800-01. The court in C.M.G. found that the land had been set aside by executive order and was federally superintended. See id. at 803, 804. Although the Oklahoma court was applying a different iteration of the test we apply here, it found that an analogous set-aside requirement was integral to that test. The land in that case had been "reserved by Congress for an Indian school and for the 'settlement of such friendly Indians . . . as have been or may hereafter be educated at the Chilocco Indian Industrial School.'" 594 P.2d at 803. The court held that the land had been set apart for Indian use. See 594 P.2d at 802.
{20} The State also contends that the Indian country precedent requires that qualifying land must be set aside for an Indian residential community or settlement, and that because parcel three was not so set aside, it fails the Venetie analysis. At oral argument before this Court, the State relied on an interpretation of wording from United States v. Pelican, 232 U.S. 442, 449, 58 L. Ed. 676, 34 S. Ct. 396 (1914), that is cited in Venetie. The Venetie Court noted "we stated that the original reservation was Indian country 'simply because it had been validly set apart for the use of the Indians as such, under the superintendence of the Government.'" Venetie, 522 U.S. at 529, 118 S. Ct. at 953, (quoting Pelican, 232 U.S. at 449) (emphasis omitted). Under the State's proposed analysis, "as such" refers to land set aside for occupation and residence by Indians and does not encompass parcel three.
{21} We disagree with the State's theory. Although the cases relied upon by Venetie and Venetie itself address lands that were allotments, villages, reservations, or otherwise home to Indians, there is no indication that the set-aside requirement is so limited. Rather, the "as such" language permits two {*387} reasonable interpretations. First, it may require only that the land be set aside for the use of the Indians as Indians. See 118 S. Ct. at 954; see also United States v. McGowan, 302 U.S. 535, 539, 82 L. Ed. 410, 58 S. Ct. 286 (1938) (quoting Pelican, 232 U.S. at 449). We interpret this as being set aside for Indian use.
{22} Alternatively, as the State argues, the meaning of the "as such" phrase in Pelican can be interpreted to mean use of the land as a reservation or for residence by Indians. We are, however, not persuaded and conclude that the first alternative applies. As noted in Venetie, in McGowan, the Supreme Court held land to be Indian country even though it was not a reservation because it had been set apart for Indian use and benefit. See Venetie, 522 U.S. at 525-526, 118 S. Ct. at 953-54. In Pelican, the land had been a reservation and was later broken up into various parcels of land. The Court could not have meant that land had to be set-aside as reservation-type land. Otherwise, there would have been no need for the passage of Section 1151, which separately discusses reservations, allotments, and dependent Indian communities. Because "the federal set-aside requirement ensures that the land in question is occupied by an 'Indian community,'" Venetie, 522 U.S. at 530, 118 S. Ct. at 955, the State's semantic argument is misplaced.
{23} Even were we to subscribe to the State's theory, however, the BIA schools and housing on parcel three do, in fact, comprise a "community." As the district court found, the property houses a high school and an elementary school primarily for the education of Indian children. The occupancy of parcel three is controlled and regulated by the BIA, and all housing is for the use and occupancy of students, school employees, and employees' families. Occupancy of campus housing is entirely conditioned on a relationship with the schools. The high school population is 100% Indian, and about 75% of the students from the schools board on campus. Fifty-five percent of the employees living on campus are Indian. This population, and the occupants of the Merrill property, are the sole occupants of parcel three. Even if a residential community of some sort were required, the BIA schools on parcel three would constitute such a community.
b. Federal Superintendence
{24} The Venetie analysis also requires that the land be subject to federal superintendence. See Venetie, 522 U.S. at 530, 118 S. Ct. at 954-55. The district court made findings to support a holding that this requirement was met. For example, the district court found the land to be "controlled by the U.S. Department of Interior, Bureau of Indian Affairs." Also, the district court found that "all occupancy on Parcel 3, except on the Merrill Property, is controlled and regulated by the BIA without participation by any Indian tribe and tribal government." The court concluded that "if the educational or employment relationship of a Parcel 3 occupant with the schools is terminated, occupancy must cease forthwith except on the lands comprising the Merrill Property," and found that "grazing animals in Parcel 3 are regulated by the BIA and branded with BIA brands." All of these findings indicate that the BIA, a federal agency, has control over the land at issue.
{25} The fact that sixteen acres of parcel three were private land does not defeat the finding of a set-aside or federal superintendence in this case. Defendant was not arrested on the private Merrill property. In addition, we have held that privately held land can constitute "Indian country" when it is within the boundaries of land that is properly considered "Indian country." See State v. Ortiz, 105 N.M. 308, 312, 731 P.2d 1352, 1356 .
{26} The State further relies on the fact that emergency fire, police, and medical services and utilities for parcel three are predominantly provided by the state. However, this alone does not change the analysis. As in Venetie, where the Supreme Court held that the provision of services by federal entities did not render the land a dependent community, here the provision of services by the state does not defeat a finding of a dependent Indian community. See Venetie, 522 U.S. at 530-531, 118 S. Ct. at 956. The circumstances of parcel three are such that {*388} the federal superintendence requirement was met.
{27} The status of parcel three as a "dependent Indian community" is consistent with the ultimate consideration that federal authorities and the Indians themselves should exercise primary jurisdiction over the land. See Venetie, 522 U.S. at 531, 118 S. Ct. at 955. The commonality among the members of the parcel three's BIA school community is such that the state should not have jurisdiction over Indians committing crimes on that land.
CONCLUSION
{28} The area in question in this case, parcel three of the former Fort Wingate Military Reservation, meets the two-pronged test for a "dependent Indian community" set out by the United States Supreme Court in Venetie. Therefore, the State did not have jurisdiction to prosecute the case against Defendant, who was stopped and arrested for DWI on that parcel. We reverse and remand with instructions to dismiss the charges.
{29} IT IS SO ORDERED.
LYNN PICKARD, Chief Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
M. CHRISTINA ARMIJO, Judge