State v. Frank

juve “mandatory” apply concerning offender.” no sentences the offense 31-18-15.1(0 niles and the basic sentence is no sense limits court’s Subsection 1978, “mandatory” for adults. See NMSA or decreases that are discretion increases 31-20-3(A) (1985) (permitting a court to basic sen- greater than “one-third sentence). Thus, may we defer use the rule tence; is a provided, that when the offender lenity support our conclusion. further youthful of- youthful offender or a serious 010, Anaya, v. 1997 NMSC 30- fender, judge may sentence reduce the 32, 14, 223; 933 P.2d v. of the basic sen- more than one-third Swafford State, 3, 16, 112 N.M. 810 P.2d tence.” (1991) (“When it cannot be said certain word “shall” as used ty legislature intended authorize generally construed to be mandato statute is imposition of an enhanced sentence un C., 80, 82, ry. Jody 113 N.M. See State circumstances, corollary particular der as a (Ct.App.1991). “Where the criminal to the rule that statutes must be ‘may’ juxtaposed terms ‘shall’ and have been sufficiently clear and definite to inform a statute, ordinarily it must be the same person ordinary intelligence what conduct legislature was aware of concluded Prince, punishable, State v. 52 N.M. meanings.” and intended different Thrift (1948), presume 189 P.2d we State, way Marketing Corp. v. intend.”). legislature not so did (Ct.App.1992). 844 P.2d Conclusion basic We conclude sentences prescribed Section 31-18-15 are “manda- above, For the reasons discussed 32A-2-20(D), tory” meaning within the may hold that maximum sentence be in the basic sentences while the alterations imposed upon youthful offender convicted discretionary by 31-18-15.1 are non-capital felony allowed is the basic sentence 31-18-15, prescribed by plus, circumscribed the Children’s appli- therefore if Section 32A-2-20(D). cable, prescribed by conclusion is Code. See Our the enhancements Sec- Legislature’s phrases tions 31-18-16 31-18-16.1. We vacate based on the use of the Defendant’s sentence and remand to the dis- imposed” or “shall “shall be be increased” 31-18-15, proceedings trict -16, -17, court for consistent with -16.1 and con- Sections opinion. phrase “may trasted with use of the alter” Thriftway, 31-18-15.1. Section IT ORDERED. IS SO at 829. The basic sentence BOSSON, WE CONCUR: RICHARD C. prescribed by 31-18-15 is the maxi- Section Judge, Chief D. MICHAEL youthful which a mum sentence to offender BUSTAMANTE, Judge. sentenced, may unless a trial court exer- impose mandatory-for- cises discretion to

adults enhancements made disere- sentence youthful

tionarily applicable to offenders un- der 31-18-16 and 31-18-16.1. Un- Sections 2001-NMCA-026 31-18-15.1, a trial der Section 24 P.3d 338 sentence, but has full dis- increase the basic Mexico, New STATE of appropri- sentence as cretion to reduce the Plaintiff-Appellee, ate, taking youthful account into offend- education, “age, physical er’s mental condition, background and all other relevant FRANK, Defendant-Appellant. Travis 32A-2-2(A) (explaining

factors.” Section 20,376. No. Act). purpose Delinquency Appeals Court of of New Mexico. if in our Even we are incorrect March statutory interpretation on the words based statute, least, very at the the use of “mandatory” 32A-2- word Section 20(D) ambiguity creates an because there are different test

and established somewhat argued jurisdiction in what is determine country. Alaska v. Native be Indian Gov’t, Village Venetie Tribal (1998) (herein- 948, 140 L.Ed.2d 30 Venetie). after time, Circuit has Since the Tenth analysis, interpreted the Venetie first twice Roberts, F.3d in United States v. (10th Cir.1999), in Inc. v. and then Agency, 198 Protection Environmental (10th Cir.2000). 1224, adopt now We analysis of the threshold the Tenth Circuit’s defining “community of issue the Watchman, as of reference” established Frank, adopted in HRI. and reiterated We require application of the United States then for Supreme Court’s two-factor test deter- mining meaning “dependent the of community” established which step modifies the second of the Watchman analysis. We hold the failing analyze reference issue, applied in determin- incorrect criteria General, Madrid, Attorney A. Patricia jurisdiction in ing this ease. We reverse General, Trujillo, Attorney Ralph E. Ass’t findings of fact for additional remand NM, Fe, Appellee. for Santa of law with this conclusions consistent deci- Subin, Defender, Phyllis H. Chief Public sion. Knowles, Appellate A. Ass’t Defend- Laurel ISSUES NM, er, Fe, Appellant. for Santa ap- claims on Defendant makes three (1) peal: the district court did not follow the OPINION appeal of this mandate Court PICKARD, Judge. two-step not the case because it did use (2) Frank; analysis ordered in the district requires This case us to review findings of court’s fact are insufficient for it interpreting clarify current law case analyzed jurisdiction issue to have community” “dependent definition Circuit; applied as in the Tenth 1151(b) (1994), § in 18 for contained U.S.C. (3) “dependent in question area is a purpose determining community” by 18 as defined U.S.C. Navajo De over this State § as a matter law. Ap fendant. The United States Court AND HISTORY FACTS PROCEDURAL peals a two- for the Tenth Circuit established analysis to constitutes a determine what appeals Defendant his convictions of “dependent community.” Pitts stemming counts of vehicular homicide six burg Midway Mining v. Watch & Coal Co. Highway from an accident that occurred Cir.1995). man, 52 F.3d We a state road that traverses northwestern prior opinion adopted following facts are uncon- New Mexico. The through case. 1997-NMCA- Highway 44 runs tested. checkerboard, P.2d 464. How known as the so-called be- ever, recently pattern called into cause of its of land owned admin- government, the Nava- when United States istered U.S.C, allottees, state, Nation, Navajo jo interpreted meaning of 18 1151(b) inception § The accident private for the first time since its non-Indians. occurred establishing on land owned the federal a new two-factor test to deter- and administered the Bureau of Land mine what constitutes a (BLM). 1151(b)). Management Though the situs of under 18 U.S.C. De- any the accident is not within the boundaries of authority fendant does not cite that dis- Reservation, Navajo politi- it is within a cusses lower court’s mandate the event Navajo law, cal subdivision of known Nation intervening so not new we need ad- Defendant, Nageezi Chapter. regis- as the dress Defendant’s direct claims. See Fer- Nation, Co., tered member moved nandez v. Farmers Ins. (1993) charges

for lack be dismissed for (stating gener- jurisdiction, arguing state that the area al authority rule is that cases are considered). in question was a Indian commu- propositions not 1151(b). nity defined U.S.C. Here, the district court did not {6}

district court denied his motion. Defendant follow our mandate because it concluded that pleaded guilty charges, pursuant then to the Supreme the United States Court’s decision 25, Alford, to North Carolina v. 400 91 U.S. Venetie, subsequent in 160, announced to the re (1970), 27 S.Ct. L.Ed.2d 162 and re- mand, superseded previous law. The district right appeal served his on the correct, Supreme court is because the Court appeal, issue. On Court held that the has applies held when it rule federal applied district court incorrect criteria in de- it, parties law controlling before it is a termining whether the accident occurred interpretation of law federal and must be country as defined in 18 U.S.C. given 1151(b). full retroactive effect all cases still 734, § See 123 N.M. 945 review, open ¶ predated on if 464, 1997-NMCA-093, even the events 2. We remand- Harper the announcement of the rule. See ed the case to the district court for additional Taxation, 86, 96, Virginia Dep’t findings and conclusions and instructed it to 2510, (1993); 113 125 S.Ct. L.Ed.2d 74 see apply two-step analysis set out Watch- Dick, 1999-NMCA-062, also State v. 13- remand, man. id. On the district court 382, (applying 981 P.2d 796 again findings made of fact and conclusions analysis appeal law, on of case in which determining that the area in analysis); trial court used Watchman dependent is not a cf. 1151(b). Tansy Clark 882 P.2d § appeals 18 U.S.C. Defendant now (1994) (holding that when a habeas from this second district court decision. petitioner in a criminal case can show DISCUSSION law, intervening change there has been an Issue One: The Mandate of This Court relitigation adversely issue decided on Remand. barred). However, appeal direct is not “[i]n arguing Defendant is correct law, applying Appeals] [the federal Court of general rule is the lower court’s precedent follow[s] the established duty comply on remand is to man with the courts, particularly federal the United States appellate date of the court and to follow the Appeals Court of for the Tenth Circuit.” Eppsco without variation. order See Vinton Snyder, State v. Homes, Inc., Inc. v. N.M. Showe 967 P.2d 843. The Tenth Circuit (1981). However, Supreme has twice discussed the Court’s de general apply rule does this case be Venetie, interpreting Supreme cision in cause new law was announced in interval Court’s to Indian relation between our remand and the district court’s in the southwest. can discuss Before we Venetie, re-hearing of the ease. See U.S. issues, remaining Defendant’s first we must (noting 118 S.Ct. 948 that this deci apply Supreme consider how to Court’s Supreme sion was first occasion for the and Tenth Circuit’s decisions to this case. interpret “dependent Coui’t the term Indi 1151(b) an communities” since 18 U.S.C. Background 1948, rejecting was enacted the six-factor Circuit, provides: Ninth test established 18 U.S.C. Venetie, Court held country”, chapter, in this as used “Indian (a) village occupying for any that an Alaska Native limits of all land within the means land was not a mer reservation Indian reservation under Government, Native because the Alaska notwith- the United States and, effectively Settlement Act removed any patent, Claims standing the issuance supervision of all Native lands through rights-of-way running including Venetie, reservation, (b) at 533. The Alaska. See U.S. all “dependent also held that the term within the borders of the communities to a “limited original Indian communities” referred within the United States whether thereof, category of Indian lands that are neither territory subsequently acquired allotments, satisfy nor and that reservations or without limits of and whether within (c) allotments, requirements-first, they must have been state, all set aside the Federal Government not been Indian titles to which have extin- second, land; Indians as Indian running use of the guished, including rights-of-way they superinten must be under through the same. dence.” interpretation of this statute In its distinguished has The Tenth Circuit prior to the Tenth Circuit’s its decisions from Venetie both times Watchman, two-step analysis. question. The Tenth Circuit addressed was to deter- 1543. The as it first addressed Venetie related “community of refer- mine the disputed Choctaw Nation’s land Oklahoma. doing, at In so “[t]he ence.” Id. 1542. Roberts, Roberts, F.3d at 1132. In (1) See 185 of guiding principles are: the status Venetie, that (2) the court conceded under question community a and the area in as relationship informal between reservations community of that locale or of consideration dependent Indian communities is no within the of the surround- reference context clear, entirely longer but concluded that de- Frank, ing 945 P.2d area.” communities, pendent ¶ formal (internal whether quotations not, or omitted). reservations continue exist under step and citations The second 1151 and under United States U.S.C. a four-factor test to determine whether Supreme jurisprudence. Court id. at See dependent question land in is a Indian com- 1133. The Tenth Circuit addressed the issue munity meaning of 18 within the U.S.C. the second time as it related to New Mexico’s § 1151: in a decision announced in checkerboard area “(1) whether the United States re- HRI, January at 1231- 2000. See 198 F.3d permits lands which it tained ‘title 32. ‘authority occupy’ and the Indians to regulations protective laws re- enact HRI court concluded that The (2) specting territory,’; of this ‘the nature speaks step nothing in Venetie to the first of relationship question, of the the area test, determining that of a its Watchman inhabitants the area to Indian tribes proper prior to de reference government, and to the federal the estab- termining whether area in government agencies to- practice lished dependent (3) area,’; there is ‘an ward the whether HRI, § 1151. F.3d at 1248- U.S.C. See ... manifested ei- element cohesiveness 49. court that States noted the United area, pursuits economic ther did not address the need to Court interests, or inhabit- common needs proper community be define reference (4) locality,’; supplied ants as that categorical of the Alaska cause of the effect apart such lands have been set ‘whether virtually all Act on Native Claims Settlement use, occupancy protection of for Spe at 1249. Alaskan native lands. See id. ” peoples.’ stated, cifically, court the Tenth Circuit “[bjecause Watchman, speak directly to (quoting Venetie does not 52 F.3d at 1545 United issue, Dakota, barring th[e] 665 F.2d en bane review States v. South (8th Cir.1981)). court, require ... Watchman continues to

3H ‘community analysis ments, prior of reference’ as trust lands and allotted lands. determining HRI, qualifies land a de- at whether as 1251.

pendent under the set- determining Factor two: in supervision requirements aside and of 18 superintendence is under the land 1151(b).” HRI, U.S.C. 198 F.3d at 1249. government, the HRI court deter step Therefore a as the first ways mined several that land could be con analysis, its proper is to determine com- supervision sidered to be under munity required by reference Watch- purpose establishing man and as discussed detail in our first (1) supervised by communities: the Bu opinion, noting analysis must re- (2) Affairs, reau of Indian land where the quire view than broader the accident United retains States title oversees the site. See (3) property, and land that is under the ¶ 1997-NMCA-093, 8. jurisdiction and Congress. control of See id. 1253; Dick, 1999-NMCA-062, see also acknowledged The Tenth Circuit (noting congressional enactment is step second of its Watchman test express set-aside of land that ensures require “some modification” Vene- because of occupied by the land an Indian communi tie. See 198 F.3d at 1248. It also note, however, ty). Of is the Venetie Court’s recognized impact Venetie on the finding government programs social potentially Watchman would raise not indicia of alone are federal control. active questions. difficult See id. at 1254. But the U.S. S.Ct. 948. HRI court step did not reach the second calls for in its HRI decision. ques have active control of the lands presume did that Venetie would reduce the tion, “effectively acting guardian as a weight afforded to two of the four factors of Indians.” analysis, second in the Watchman but did not what might discuss “modification” Issue Two: Insufficient Facts to Use However, be needed. the HRI court did use Applied by Venetie as the Tenth Circuit. two-part analysis the determining Venetie parcel whether one of in question the land The district court concluded that qualified country as Indian under 18 analysis U.S.C. Venetie obviated the use need to the 1151(a). However, See id. at 1250-54. set out in Frank. as we have

noted, community a of reference must undertaken as a to deter Analysis of the Venetie test. is question prior' mine what the land in to determining Factor one: applying the Venetie factors to that land. In decision, contrary land has been set aside feder- the its to the statement the government al for use as Indian the dissent that the district court did not “focus Tenth purchased Circuit stated that “land on myopically of the site the actual congressional appropriation collision,” funds automobile the district court con purpose ‘procuring tinually exclusively home and farm referred to the “area sites, land,” with adequate rights’ water in question,” “surrounding ‘[f]or the site,” purchase site,” rights’ of land and for water “collision the “crash the “area occurred,” Indians validly purposes was set aside which crash “the land country immediately surrounding determination.” collision site.” McGowan, (quoting 1251 suggestion United States district There is 535, 4, 286, & n. larger 537-39 82 an area considered than the immedi (1938)). site, L.Ed. 410 status much ate accident less “looked toward designation does not a essentially need formal of reser- [it] the horizon where saw noth vation, merely but can ing,” analyzed community be lands which Con- gress intended to for a determining reserve tribe and over when reference state Congress jurisdic- which primary jurisdiction intended had to Defendant. A tion to govern- rest and tribal view of broader of reference

. major prosecuted equally to crimes required. is See ¶ 8; 1997-NMCA-093, also and minor crimes see P.2d local (analyzing may wish on a level 14-15 the tribe to handle services, the 13,150 as a com tribal courts tribal Wingate in their acres Fort place if appropriate of an munity of to determine determination reference depen “sociological expedition,” arrested was is not Defendant was of reference where attempt identify to the real inter- community); United States but is an dent Cir.1997) Adair, (analyz jurisdictional and to 111 F.3d at stake determine ests degree flexibility gives with a ing square six to twelve miles surround issues state, federal, respect and tribal inter- Rocky to determine to ing the Mountain School due depen if situs of the offense occurred ests. F.3d 1224 community); dent Ortiz, a case relied also note that We (considering parcel of 200 acres entire dissent, contrary our to is not determining over the site Ortiz, attempting holding. the State mine). court, as Churchroek crimes expand its to include appropri inquiry, look for an threshold must within boundaries committed the exterior applies community of reference before ate 105 N.M. at the San Juan Pueblo. See factors. district court must

the Venetie argued that P.2d at 1353. The State appropriate for its communi discern an was distin- designated the Pueblo according evi ty inquiry of reference designated from land as a reserva- guishable presented hearings. in both dence 1151(a), tion, which such that 18 U.S.C. country” “all land “Indian to include defines locating an purpose reservation,” any limits of within the community of reference before P.2d at apply. did id. undertaking identi rejected argument, 1355. The Court so, and, attempt doing at issue fy the land indistinguishable. holding that were any, identify community, if most af quota- id. at 731 P.2d at 1356. The action. If the fected critical of the tion cited the dissent is not community,” “dependent Indian then we owe se, “community analysis per of reference” juris sovereignty due deference recognizes in the context estab- Ortiz, See State v. diction. boundaries, analysis is Pueblo lished (Ct.App.1986). unnecessary id. both and undesirable. See agree with the dissent While bar, however, at there are In the case legitimate prosecuting a has interest State boundaries, that land itself clear and it is the borders, committed within its we also crimes necessary It is checkerboard. therefore an interest recognize that tribes have similar appropri- an for the district to discern sovereignty self-government. See and jurisdiction. in which to evaluate ate Watchman, 52 F.3d at “Jurisdictional implicates only ownership, of land status Dependent Three: Indian Commu- Issue sovereignty also core interests of but nity as a Matter of Law. tribes the federal authority exercising civil criminal over argues that the facts Defendant territory.” F.3d at 1245-46. law presented as a matter of below establish sovereignty interests that are It is these core Nageezi portion there Chapter or a by glossed over the dissent. dependent as de of is a 1151(b) using Navajo Although Nation would 18 U.S.C. fined Watchman, HRI, or tests. Because jurisdiction to Defendant for lack Major of a Indian commu manslaughter determination out, unique findings fact nity specific turns on points Act as the Crimes dissent case, juris- conflicting are may potentially to this because there wish exercise tribe offenses, susceptible conflicting infer as the DWI facts or facts over other diction of the regarding in Dick. See ences the determinations at issue reference, cannot jurisdictional analysis applies proper 2. As the law, say, a Nageezi as matter of that 15-20 homes to the west of the accident site Chapter community. is a and six homes located two north miles Nageezi accident site. contracts with Jemez Community

Evidence of of Reference. power Electric for in the area. volun firefighters county, teer are funded United States Navajo. but precisely Though Navajo are all “community,” Depart refused to define recognizing challenges vagueness Safety that ment of usually Public officers do not light patrol statute must be examined in Highway they Navajo will take facts of the case at hand. See United States drivers who commit misdemeanors to tribal Mazurie, 544, 549-50, court. court must determine (1975). 42 L.Ed.2d 706 Defendant ar not this or other evidence is gued in hearing the first that the entire sufficient to meaningful constitute a commu Nageezi Chapter appropriate was the com Frank, of reference. nity munity of reference. In hearing, the second ¶¶ 464, 1997-NMCA-093, 10-11. argued representative portion he that a hearing, At the sug- second the State five-by-five mile area around the accident gested that of reference appropriate community site is the of refer properly Aztec, Farmington, should chief, ence. In argues his brief he that Bloomfield, they places since are the closest even a five-mile radius around the accident provide comprehensive services such as site is an analyze area to as a However, shopping and health care. community of reference because meets all community of necessarily reference must Frank to determine the criteria described offense, reject contain the situs of the so we community. those analysis. communities for this In its 464, 1997-NMCA-093, 9-11. Defen brief, suggests answer the State dant asked the court in hearing the second two-mile radius around the accident is an site people Nageezi consider who inhabit appropriate community of reference. The community, though make it a even the land is presented showing evidence a checkerboard area. Defendant notes that essentially two-mile area is vacant land ad- Nageezi Chapter strong has a element of ministered the BLM and used cohesiveness because inhabitants a share grazing purposes. legally Since no can one membership common chapter in the live on BLM community. cannot be a pursuits. share common economic Within a highway On one side of the accident site, five-mile radius of the accident there is a grazing Navajo, permit site is held Navajo church, school, traditional a BIA grazing permit on the other side is held office, post station, gas trading post and a addition, Anglo. present- the State Nageezi offers basic necessities. The County ed evidence the San Juan Sher- Chapter up approximately itself is made Department patrols iffs Highway 44 and percent part Indian land. The land is Navajo does not traffic cite offenders to trib- the traditional homeland. Defendant al presented court. It evidence that hearing fire- admitted the second that he had fighting data, services are funded the demographic no state or according county supervised and undisputed testimony the San Juan Nageezi of a landlord Marshall, County emergency Fire hearing, Nageezi the first medical chap the entire provided by exclusively by Navajos, Region ter is services are inhabited with San Juan Services, exception Anglo EMS and not of Health and owners Nageezi trading posts. and Blanco Bloomfield Public Schools The trad serves the area ing post many exclusively owners trade almost to with residents choose bus their chil- Navajos. grazing permits Most BLM to present- dren Bloomfield. The State also are passed through Navajo down Navajo ed families. The evidence that the Nation does not Nageezi Chapter provides provide Nageezi business and hous a school at and the BIA members, ing to Chapter services accepts school Native American children gatherings House hosts social and elan Nageezi, Navajo meet from outside that the De- ings. housing consisting partment There of Safety of Public officer who was jurisdic- portions accept constituting to cant of land scene declined

first on the .community are owned su- ensuing investiga- or the of reference tion the scene over pervised by the Bureau of Indian Affairs or charges, and offi- tion and criminal government and investigations the United handle criminal States are cers do not HRI, 198 hearing, active control. See F.3d at At also Highway 44. the State inquiry a factual Chapter This is is neces- Nageezi noted that members of sarily dependant first-step on the court’s con- anywhere and still of can be members live community regarding appropriate clusions district Chapter. court must deter- Analysis of of the Venetie factors or not this or evidence is reference. mine whether other community in relation to is not a reference are sufficient to determine there subject conflicting also facts community and facts meaningful sur- reference Frank, susceptible conflicting inferences as dis- rounding accident site. See 464, 1997-NMCA-093, court cussed above. The district could find N.M. community appropriate that the of reference 10-11. does does not meet the Venetie factor conclude, district court {22} requirements. did, appro- the Adair there is priate community of reference which the CONCLUSION foregoing facts accident occurred. If, support

would conclusion. after We reverse remand the dis- analyzing community the relevant the court particularized trict court findings to make reference, community of finds no then the fact and of law conclusions consistent with and the Venetie need not opinion. may, ends test this The district court but is to, required hearing, may, undertaken. hold ¶9. 464, 1997-NMCA-093, to, If an P.2d required but is not take further written emerges appropriate reference submissions. presented, any of the facts

from IT IS SO ORDERED. analyze court must then us- ing factors two Venetie as described ARMIJO, Judge, M. CHRISTINA this decision. concurs.

Application BOSSON, of Venetie. Judge, RICHARD C. Chief dissents. applying fac the Venetie appropriate tors discussed above com BOSSON, Judge (dissenting). Chief reference, munity the district must agree I I respectfully dissent. significant portions consider majority applied trial court were set aside for the use of in light standard on remand land Indians as Indian trust or allotments. the United Court’s States interven- at 1251. 198 F.3d We note that the ing opinion in Village Alaska v. Native presence of non-Indian owned land does not Gov’t, Venetie Tribal necessarily mean that the area is not Indian (1998). But L.Ed.2d unlike the purposes of the statute. See majority, correctly I also believe the court Ortiz, State v. interpreted Venetie. (Ct.App.1986) (finding that I pueblo proper- of the exterior conclude that the trial court outside boundaries ly case, purposes applied holding Indian land for facts of constituted its (1994)); jurisdic- rightly upheld and then the state’s U.S.C. see also prosecute In (indicating pri my judg- that tion to Mr. Frank. ment, majority opinion portends vately land can constitute “Indian coun an un- held try” development it within the when is boundaries desirable turn of New properly regarding juris- considered coun Mexico state and is “Indian law tribal factor, try”). it applying In the second dictional conflicts. Because to adds surrounding signifi- must consider crimi- district court confusion state’s by competition, sought nal to a felonies result state, compelled area of our present I feel to state would exacerbate the sizeable difficul- my spell suggest a solu- If inquiry [into out differences ties. an extensive factual necessary community] jurisdic- tion. is to make a determination, tional criminal trials will be First, a the confusion. After fair {28} delayed____ encourage [W]e would a more majority I reading opinion, am at a jurisdic- pattern extensive ‘checkerboard just Judge what it Rich loss as to is that tion.’ result is This inconsistent with Con- to supposed supposed do and how to do he is Ortiz, gressional intent.” State v. might perform it. Some conclude he is to a (Ct.App.1986) sociological expedition kind of search (citations omitted). rejected The Ortiz court “community of reference.” It is certain community-based by claim the state that net, cast expanding he is to a wide far be- expanded jurisdiction by would have state yond immediately the accident site and the circumscribing the definition of Indian coun- Somehow, surrounding judge area. to try. should The same hold true when community, objec- define that not based expand invites us to defendant the definition ownership using tive facts like but country by using ambiguous of Indian lives, topics ambiguous interpret people’s to community-based approach. “cohesiveness,” life-styles, their their their relationship governments, to waiy and their sense Mexico should of bur- New be theory might justice In of self. such a dening system, task its criminal unless we judge’s grasp; exceed a required our courts often are somehow to do so virtue of statute, complex judicial decision, decide matters. But is not oth- some point. majority jurisdictional expression public creates a er of sound policy. After prosecutors all, threshold that anyone generally must overcome familiar law with Indian just get to into much obtain player less a must concede state is one verdict. script largely by in a written others. The majority persuade would us that Mr. Frank’s New Mexico legitimate, has a sover- instance, case is such an do not but I eign in prosecuting interest felonies serious agree. within committed its borders and outside tribal separate, sovereign, indepen- lands. The tribes have a similar inter- As prosecutors entities, state governmental est. If and courts must dent tribes and states investigation such a conduct with primary fact-intensive each are entrusted areas of the state neigh- even before knows whether over law enforcement. As prosecute, citizens, to right implications are bors states and fellow tribes and present investiga- overlap obvious. inevitably degree ease that in their some jurisdictional tion has evolved into a trial a trial possible, within claims. Whenever years counting. has now consumed five should those conflicts be worked out day It a small political respective is but when govern- foresee the branches their overburdened, pragmatic process officials will through negotiation state ments based other, put respect. crimes to one side in favor of on mutual manageable A more matters. serious crime matter, practical aAs manslaughter, its six vic- like vehicular High- what occurred at the accident site on tims, goes the heart of law the state’s way police the tribal When officer responsibilities. enforcement Yet make scene, promptly invited arrived on he duty, public and the trust bestowed police pri- state and local officers to assume people, all the more elusive when we mary responsibility investigation; over the require the state shoulder the burdens not to the officer chose refer the matter imposed opinion. this trial also law enforcement. The years Court, that, ago Fifteen while on this found a fact this case then-judge particular Highway Minzner in a con- state wrote similar possible police traditionally text: is not in New Mexico under- “While and local officers jurisdictional primary responsibility, to avoid occasional confusion law take enforcement 316 I observe suggest that this lowed Watchman. would Nation. I not the case; jurisdictional it did was not a criminal ad hoc Watchman

kind of allocation undertaking competing interests implicate the same responsibilities, consensual not tribe, in- people ground, should and much less their knowledgeable on the state between respect than of crimi- tensity, more and deference that are inherent in matters given be opinion. in its or not majority justice. important, demonstrates Most the nal the model for Watchman Navajo Nation I also note that the opinion, has rendered original Frank sought or otherwise not intervene mostly criminal case be- irrelevant to the party in this endless appear as an interested us. fore in the federal saga. The reason lie is Major Act which the tribe Crimes Venetie, opinion 1998 a rare In its view) (unjustly my deprived highest decision from our nation’s unanimous important like man- felonies in- Supreme the United States Court Thus, Frank’s slaughter in tribal Mr. court. 1151(b)for very terpreted 18 U.S.C. all, referred, if at to the would be crime put its defini- imprint time and on the first Attorney prosecution States United community as never tion of (1994). § 1153 court. See 18 U.S.C. federal Writing impres- aas matter of first before. sion, Supreme gave a purposely presented in public policy issue 1151(b). A reading narrow 18 U.S.C. appeal not the tribe. is the state versus Court, community, dependent Indian said Instead, it is the state choice between category of Indian lands “refers to limited and a prosecutor prosecutor, or the federal allotments that are neither reservations nor of the state or federal venue. As evidence Venetie, satisfy requirements.” jurisdic- assuming lack of federal interest First, 948. S.Ct. tion, only this is the one need recall that question “set aside” must have been Attorney’s beleaguered United States same government “for use of the the federal regularly to state dis- sluffs off Office Second, the as Indian land.” Id. Indians job attorneys prosecuting federal trict superintendence. land must be under federal drug And be mindful crimes. we should id. See not provocateur this conflict is tribe, attorney hoping but a skillful defense emphasis on land. To de Note juris- prosecution by playing off the to avoid Court, jurisdiction, not Supreme termine against oth- aspirations of dictional each land and surprisingly, directs our attention to Roberts, v. er. United States Cf. away nebulous its title and from the more (10th Cir.1999) (defendant arguing that id. at See issue eohesiveness. country and did not occur in Indian the crime is, n. 948. Jurisdiction 531-32 S.Ct. only prosecuted could state therefore all, largely question territory. after court). Thus, strictly policy point of from a emphasized that the federal Supreme Court view, legitimate appear not it does to me “ensure[ is essential ] set-aside comity respectful rela- considerations by an ‘Indian question occupied land in require state us to tions between and tribe community.’” Id. way. interpose these in the state’s obstacles words, look land and its first to the other if, it, then, If, set-aside Is law that dictates it is a federal title. eye. Indians then we my Not to It is true for the use of as Indian such a result? pro- proceed recent that before Court’s Venetie, n. superintendence. law from id. at 531

nouncement federal case (“it very question, gave the land in Tenth Circuit birth it, merely inhabiting analytical tribe complex framework cited Midway superintendence majority. Pittsburg Coal must be under & Government.”); Watchman, see Yukon Flats Mining F.3d 1531 but Co. Federal Cir.1995). Gov’t, 101 F.3d v. Venetie opinion Dist. Tribal Sch. (9th Cir.1996) (“ Frank, 1997-NMCA-093, ‘it is not land n. super closely fol- Indians which must be under written before ”), government’ intendence federal fines the Choctaw Nation of Oklahoma on Alaska, that, although strictly overruled U.S. not speaking a 948, 140 reservation, L.Ed.2d 30. was held the United States for the benefit the Choctaws and them not, present majority We do as the {39} tribal nothing members. Roberts is more opinion implies, go first in search of a com than application a traditional of 18 U.S.C. munity, investigate and then the land. The 1151. Id. 1129-37. It did not distin- majority has it backwards. Without a feder Venetie, and, guish depart from if relevant set-aside, al not in does matter who lives present at all dispute, sup- Roberts area, non-Indian, Indian or because after ports Judge what Rich did below. satisfy Venetie those inhabitants cannot dependent community definition of a Indian opinion, The second Inc. v. proving without first a federal set-aside. This E.P.A., Cir.2000), 198 F.3d 1224 is only recently stated as much: Ven problematic, majority more because emphasis “shift[s] etie from inhabit out, correctly points it continues even after day-to-day relationship ants and their require community-based analy- Venetie to inquiry.” to a land-based separate analysis. sis from the land But title Dick, 1999-NMCA-062, State v. case; HRI is a criminal HRI is another Quoting 981 P.2d 796. and ex decision, regulatory sequel to Watchman. pressly relying upon similar statements In HRI a federal law entitled the United stated, recently one federal court Agency States Environmental Protection more, III, ‘What after Venetie factors (EPA) regulatory jurisdiction to assume over than superinten other federal set-aside quality by proposed mining water affected importance dence are so diminished as to country; Indian dispute case of a over the practically meaningless, except perhaps be status of land to be affect- “extremely the extent that those far other ed, EPA could take until the removed” factors can be used inform the dispute was resolved. 1233. The EPA requirements.” federal question did not claim that land in Franklin, Thompson County conclusively country; only wanted (N.D.N.Y.2000). 145, 154 F.Supp.2d opportunity to reach a final decision light of the new ease, Court decision In this the accident occurred on Therefore, Venetie. See id. at 1248. highway; surrounding a state land for a question in HRI was whether the land any mile or two in direction is owned might conceivably, any theory, fit under with- Management United of Land States Bureau country. in the definition of grazed permit by and is both possible The Tenth Circuit that it was held and non-Indian ranchers. district court inquiry. and remanded for factual HRI’s land, correctly determined that this the rele unique procedural context renders slender point inquiry, vant was not set aside support categorical assertions the land, the use Indians as Indian and no one majority now makes in its name. disputes this basic That issue. should end inquiry. Unless there is first Nonetheless, opin- the Tenth Circuit set-aside, proceed we do not musings. ion did include It im- troublesome community. The federal set-aside threshold plied that a mine to located on 160 acres occupied land in “ensures private fee not tribal land or a feder- Venetie, community.’” an ‘Indian sense, any might al set-aside be considered U.S. at (the way court did not decide one or the other) majority part deals with Venetie relying regulatory instead on two purposes. recent Tenth Circuit for federal This would Roberts, opinions. opinion, The first 185 occur if the relevant of reference is unremarkable. Far from dis- considered in were the broader context tinguishing opinion chapter, political local Roberts subdivision. upheld crim- language See id. at 1249. This is the activity place majority heavily. inal that took within the con- which the relies so thinking dependent Indian as the United Regardless of how years purposes, regulatory Supreme Court would do might work for federal States stated, wrong Supreme model for New I it is the later Venetie. Our believe however, jurisdiction prose- consideration, to define state crucial Mexico “The tribal bound- committed outside cute crimes land had been set whether the or use, Much of the checkerboard protection aries. apart occupancy and for regarded, northwestern New Mexico fac peoples. This crucial view, point as depending on the observer’s nothing expanded than an con tor is more chapter or ambit of a tribal within the overall cept original definition of of the If that now political subdivision. a similar community ... in which the United prose- limit on state to be the ‘title to the lands which States retained ” cute, a radi- majority opinion marks then the occupy.’ permits the Indians to knowledge, my To precedent. cal shift from (quoting States 670 P.2d United limit- appellate has ever no Mexico case New McGowan, the crime was prosecution a state unless ed (1938)). Blatchford, In the Court L.Ed. that was in fact committed on land either authority prosecute a upheld the state’s boundaries, pueblo tribal or or within Navajo recognized within crime committed allotment, actually or on land that was from that was located two miles pueblo of a tribe or set aside the benefit P.2d at tribal boundaries. See id. Dick, members. 1999-NMCA- and its by community, largely populated 950. The (holding 24-27 state did not likely with tribal members and most on have over crime committed purview chapter, political of a tribal of Indian Affairs for land held the Bureau was not situated on land set aside com- and benefit of a discrete Indian the use That federal for tribal use. es munity). Additionally, I know of no federal sentially decided the matter. See Blatchford majority. agrees criminal with the case Sullivan, Cir. 548-49 requires adopt the Cir- Nothing us to Tenth 1990) (applying facts and similar test to same opinion part HRI cuit’s make agreeing with Mexico result reached New my law. In fabric of New Mexico criminal Court). Supreme do so. opinion, we should not good is still law New {47} Blatchford expanding compli- Rather than tell, As as I can it has never Mexico. far cating inquiry for trial I submit distinguished or limited our Su- been right. Judge got quite Rich He did view, my antici- preme In Court. Blatchford not, majority suggests, myopical- focus as the legal pated part and is mosaic just ly actual automobile the site which, along compels a with different Judge appears Rich collision. to have looked up- I we should result this case. believe essentially saw toward the horizon where he yet hold below without another the decision nothing; BLM the title otherwise, majority holding I remand. The satisfy assuredly which most does respectfully dissent. requirement threshold set-aside of Venetie. community, dependent Judge Rich saw

otherwise, thus, he concluded that the within Indian

crime did not occur statute.

defined Judge Rich in Not

Venetie; following New he was established precedent. v. Gon

Mexico Blatchford zales, Court,

(1983), the New Mexico Payne in a

speaking through Justice eerily present appeal, similar to the

context language to much the same define

used

Case Details

Case Name: State v. Frank

Court Name: New Mexico Court of Appeals

Date Published: Mar 28, 2001

Citation: 24 P.3d 338

Docket Number: 20,376

Court Abbreviation: N.M. Ct. App.