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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DELVIN CHARLIE,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY, John
A. Dean, Jr., District Judge
Gary K. King, Attorney General, Santa Fe,
NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for
Appellee
Jorge A. Alvarado, Chief Public Defender,
B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant
LINDA M. VANZI, Judge. WE CONCUR: JONATHAN
B. SUTIN, Judge, J. MILES HANISEE, Judge
{1} This appeal raises
the threshold question of whether a member of the Navajo Nation may be
temporarily transported outside of the Navajo Nation by a cross-commissioned
state law enforcement officer to conduct DWI testing without violating the
Navajo Nation’s tribal sovereignty or extradition procedures. The parties agree
that a cross-commission agreement existed between the State of New Mexico and
the Navajo Nation at the time of the investigation. However, in the proceedings
below, neither of the parties introduced the cross-commission agreement into
evidence. As a result, the district court did not have the opportunity to
review the cross-commission agreement in order to assess the legal effect of
the agreement itself on the scope of authority of cross-commissioned officers.
Such a legal determination is essential. Because the cross-commission agreement
may contain information necessary for an informed and reasoned legal analysis
under the circumstances of this case, we reverse and remand to allow the
district court to consider the terms of the cross-commission agreement in
effect at the time of the investigation to decide as a matter of law how that
agreement affects Officer Gonzales’s scope of authority under the facts of this
case and for any further proceedings consistent with this Opinion.
{2} The parties do not
dispute the basic facts of this case. Officer Paul Gonzales, a
cross-commissioned state police officer, stopped Defendant Delvin Charlie, a
member of the Navajo Tribe, on Navajo Nation land, after observing Defendant
turn his car around in an apparent attempt to evade a sobriety checkpoint that
Officer Gonzales was working. During the stop, Officer Gonzales had Defendant
undergo standardized field sobriety tests, which Officer Gonzales believed
Defendant could not satisfactorily perform. Officer Gonzales placed Defendant
under arrest then transported Defendant off the reservation to the New Mexico
State Police office in Farmington, New Mexico, for chemical testing. There was
no dispute that “there was no [certified] breath testing machine located on the
[r]eservation.” After taking a breath alcohol content test at the New Mexico
State Police office, Defendant was transported back to the detention center in
Shiprock, New Mexico, where he was booked on tribal charges. Officer Gonzales
subsequently drafted a criminal summons and complaint in San Juan County
Magistrate Court for prosecution of the state charges, which was mailed to
Defendant and filed two days after the incident. Officer Gonzales has testified
that the state charges were based on Defendant’s admission that he was coming
from the Motel 6 in Farmington when he was stopped.
{3} In the magistrate
court prosecution that followed, Defendant filed a motion to dismiss for lack
of jurisdiction, contending that Officer Gonzales “failed to follow the Navajo
extradition procedure thus[] challenging the Navajo Nation’s right to make and
enforce laws for Navajo citizens on Navajo land.” Defendant subsequently
entered a conditional guilty plea in magistrate court, reserving his right to
appeal on the issue of jurisdiction. On appeal to the district court, Defendant
again filed a motion to dismiss, or in the alternative, to suppress the alcohol
breath test results. Defendant contended that, because Defendant “was illegally
removed from the [r]eservation, this either invalidates the arrest, meaning the
case should be dismissed[,] or should result in the suppression of the alcohol
breath test results.” The State countered that (1) Officer Gonzales was
cross-commissioned to investigate state and tribal crimes; (2) Officer Gonzales
was “specifically authorized or permitted to administer an off-reservation [b]reath
[a]lcohol [t]est by Tribal Police” and was entitled to rely upon
representations tribal authorities made to him; (3) there was no extradition
because Defendant was transported back to the Shiprock Detention Center for
booking after being temporarily removed from the Navajo Nation for chemical
testing; and (4) absent a showing that Officer Gonzales exceeded his authority
or infringed on Navajo policies, there was no legal basis to invalidate
Defendant’s arrest or to suppress evidence. After a hearing, the district court
denied Defendant’s motion. Defendant appeals that order.
{4} When the relevant
facts as to the issue of jurisdiction are not in dispute, a challenge to the
magistrate court’s jurisdiction is reviewed de novo.
State v. Nysus,
2001-NMCA-023, ¶ 3,
130 N.M. 431,
25 P.3d 270. In addition, “[t]he authority of
state officers to investigate off-reservation crimes in Indian country is a
question of law, which we review de novo.”
State v. Harrison,
2010-NMSC-038, ¶ 9,
148 N.M. 500,
238 P.3d 869.
{5} Our Supreme Court
has stated that “[w]hen a crime occurs both inside and outside of Indian
country, state courts acquire concurrent jurisdiction with tribal and federal
courts.”
Id. ¶ 13. However, although “the state has jurisdiction over
off-reservation crimes committed by Indians[,] . . . a state officer’s
investigative authority in Indian country necessarily is limited by tribal
sovereignty; i.e., the right of reservation Indians to make their own laws and
be ruled by them.”
Id. ¶ 20 (internal quotation marks and citation
omitted).
{6} None of our cases
deal with the scope of authority of a cross-commissioned officer as a matter of
law, or with the ability of a cross-commissioned officer to remove an Indian
defendant from Indian land as part of an investigation for violations of either
state or tribal law. As a general matter, however, “[m]ost courts that have
addressed a state officer’s authority to conduct criminal investigations in
Indian country also have found that a determination of whether such an exercise
of state authority infringes on tribal sovereignty turns on the existence of a
governing tribal procedure.”
Id. ¶ 23 (internal quotation marks and
citation omitted). Where “there is a Navajo tribal procedure for dealing with
the suspect[, f]ailure to follow that procedure violates tribal sovereignty.”
City
of Farmington v. Benally,
1995-NMCA-019, ¶ 8,
119 N.M. 496,
892 P.2d 629.
This is because a state’s exercise of this choice “challenges the [t]ribe’s
right to make and enforce laws for Navajo citizens on Navajo land, which goes
to the heart of the right of self-government.”
Id. ¶ 5. Moreover, due to
the unique nature of tribal sovereignty, we have held that when state
authorities choose not to follow a governing tribal procedure, the state court
is deprived of jurisdiction to hear the case.
See id. ¶¶ 2-3, 14
(holding that when a Navajo tribal member was pursued from state land into
Navajo land, arrested, and removed to the state for state prosecution, and
county law enforcement officers did not follow the relevant Navajo extradition
treaties, the state court never acquired jurisdiction).
{7} We have noted that
intergovernmental agreements to facilitate cooperation between law enforcement
officers are available and that they can help facilitate, for example,
extradition between governments.
Id. ¶ 9 n.1. To this end, both the
State of New Mexico and the Navajo Nation have enacted legislation that permits
their agencies that have and maintain peace officers to enter into agreements
with one another with respect to law enforcement.
See NMSA 1978, §§
29-8-1 to -3 (1971); Navajo Nation Code Ann. tit. 17, § 102 (1977).
“Cross-commission agreements are consistent with this [s]tate’s venerable
tradition of cooperation and comity between state and tribal governments[.]”
Harrison,
2010-NMSC-038, ¶ 29.
{8} In this case,
neither party denies the importance of the fact that Officer Gonzales was
cross-commissioned. Nor do the parties refute that the cross-commission
agreement serves as a governing tribal procedure whose terms dictate the scope
of the authority of cross-commissioned officers dealing with Navajo defendants
on Navajo land and who are also suspected of committing crimes on state land.
{9} Although the
parties argue about what the cross-commission agreement allowed Officer
Gonzales to do under the facts of the case, neither party introduced the
agreement itself into evidence or discussed the agreement’s specific terms.
Rather, the only evidence that the parties presented and the district court
heard on this issue was Officer Gonzales’s testimony regarding his
understanding of the scope of his authority as a cross-commissioned officer and
an affidavit from a lieutenant with the Navajo Tribal Police purportedly authorizing
the practice of removing Navajo defendants from the Navajo Nation for chemical
testing. Specifically, Officer Gonzales testified that he had received training
by the Navajo Nation’s criminal prosecutor in Shiprock and that during that
training he was told he could take Navajo Nation tribal members off the Navajo
Nation to conduct breath alcohol tests because there was no means of conducting
chemical testing in the Navajo Nation. Similarly, the tribal officer’s
affidavit stated that “[d]ue to frequent unavailability” of breath alcohol
content testing equipment on the Navajo Nation, “cross-commission[ed] New
Mexico law enforcement officers conducting DWI investigations were permitted to
transport Navajo residents off [the Navajo Nation] for the purpose of administering
[b]reath [a]lcohol tests.” Based on this evidence, the district court concluded
that “Officer Gonzales was authorized by the Navajo Tribe to remove Navajo
tribal members from the [r]eservation land for the purpose of breath alcohol
content testing” and that “Officer Gonzales did not intrude upon the
sovereignty of the Navajo [Nation].” On this reasoning, the district court
denied Defendant’s motion to dismiss or, in the alternative, to suppress.
{10} Insofar as Officer
Gonzales’s testimony and the affidavit from the tribal officer was the only
evidence presented below about the cross-commission agreement, the district
court was unable to conduct a reasoned, legal analysis of the agreement’s terms
and effects. Instead, the district court appears to have viewed the scope of
the cross-commissioned officer’s authority as a factual determination, which
could permissibly be established by witness testimony or lay interpretation.
This was improper.
{11} As we previously
noted, “[t]he authority of state officers to investigate off-reservation crimes
in Indian country is a question of law[.]”
Id. ¶ 9. Moreover, we have
held that the Legislature intended that mutual aid agreements be written and
witness testimony is insufficient in this context.
Cf. State v. Branham,
2004-NMCA-131, ¶¶ 4, 7, 16,
136 N.M. 579,
102 P.3d 646 (refusing to allow “a
verbal agreement between the BIA and/or the Mescalero tribal police and the New
Mexico state police, and a lack of objection to such an agreement on the part
of the Mescalero tribal leaders, [to be] legally sufficient to confer upon the
New Mexico state police the authority to enforce tribal traffic ordinances on
tribal land[,]” even when testimony about the agreement came from the chief of
police for the Mescalero Tribe). In addition, we have refused to accept that a
tribe implicitly waived its sovereignty based on the fact that tribal officials
had acquiesced to state officers’ conduct.
State v. Yazzie,
1989-NMCA-056, ¶ 6,
108 N.M. 677,
777 P.2d 916 (“Inasmuch as the state contends
the officers notified the tribe of their activities, and the tribe acquiesced
in those activities, the state has provided no authority to establish that the
tribal prosecutor was empowered to waive the applicable extradition
procedures.”).
{12} Accordingly, finding
an implicit waiver of tribal sovereignty based on witness testimony
interpreting the powers of a cross-commissioned officer is inappropriate, even
when some of that testimony comes in the form of an affidavit from a tribal
officer. Defendant’s motion should not have been denied based on the proffered
testimony and affidavit, but rather, the district court should have considered
the legal significance of the cross-commission agreement itself with regard to
the authority that agreement conferred on Officer Gonzales under the facts of
this case. Therefore, on remand, the district court must consider the written
agreement itself and engage in a reasoned legal analysis about its meaning.
Cf.
Rivera v. Am. Gen. Fin. Servs., Inc.,
2011-NMSC-033, ¶ 27,
150 N.M. 398,
259 P.3d 803 (classifying contract interpretation as a matter of law). Because
we conclude that resolution of this threshold issue is necessary in the
analysis of the case as a whole and may be dispositive, we do not reach Defendant’s
remaining arguments.
{13} We reverse and
remand to the district court to conduct an analysis of how the cross-commission
agreement between the State and the Navajo Nation in effect at the time of the
investigation affects the scope of Officer Gonzales’s authority under the facts
of this case and for any further proceedings consistent with this Opinion.