{ "id": 4334696, "name": "STATE OF NEW MEXICO, Plaintiff-Appellant, v. STEVEN B., Defendant-Appellee", "name_abbreviation": "State v. Steven B.", "decision_date": "2013-07-12", "docket_number": "No. 34,122; Docket No. 31,322", "first_page": "488", "last_page": "493", "citations": [ { "type": "official", "cite": "2013-NMCA-078" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2008-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3783662 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0535-01" ] }, { "cite": "2007-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669068 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0413-01" ] }, { "cite": "2005-NMCA-106", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2548738 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0232-01" ] }, { "cite": "2010-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4246234 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 34" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0557-01" ] }, { "cite": "206 F. 387", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6745179 ], "weight": 3, "year": 1913, "pin_cites": [ { "page": "393-94" }, { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/f/206/0387-01" ] }, { "cite": "904 F.2d 542", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538636 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/f2d/904/0542-01" ] }, { "cite": "302 U.S. 535", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6142476 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/us/302/0535-01" ] }, { "cite": "231 U.S. 28", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3671359 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/us/231/0028-01" ] }, { "cite": "2002-NMSC-026", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260700 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0544-01" ] }, { "cite": "64 Stat. 248", "category": "laws:leg_session", "reporter": "Stat.", "year": 1950, "opinion_index": 0 }, { "cite": "522 U.S. 520", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11472434 ], "weight": 10, "year": 1998, "pin_cites": [ { "page": "527" }, { "page": "531" }, { "page": "528-30" }, { "page": "528", "parenthetical": "alteration in original" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "529" }, { "parenthetical": "alteration in original" }, { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/us/522/0520-01" ] }, { "cite": "18 U.S.C. \u00a7 1151", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 7, "year": 1949, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "311 F. Supp. 2d 1281", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9255865 ], "weight": 9, "year": 2004, "pin_cites": [ { "page": "1282" }, { "page": "1284" }, { "page": "1295" }, { "page": "1294" }, { "page": "1295" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/311/1281-01" ] }, { "cite": "127 N.M. 382", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 257665 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/127/0382-01" ] }, { "cite": "1999-NMCA-062", "category": "reporters:neutral", "reporter": "NMCA", "weight": 6, "pin_cites": [ { "page": "\u00b6 3" }, { "page": "\u00b6 5" }, { "page": "\u00b6 8" }, { "page": "\u00b6 23" }, { "page": "\u00b6 28" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 674, "char_count": 13884, "ocr_confidence": 0.838, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.30287904816072286 }, "sha256": "ae09f86fc401281e8ad386a36ac336266eb922f09a2da60bf0df6a1f94294cfc", "simhash": "1:5a4f51b632c897c8", "word_count": 2232 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JAMES J. WECHSLER, Judge", "WE CONCUR:", "MICHAEL D. BUSTAMANTE, Judge", "MICHAEL E. VIGIL, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellant, v. STEVEN B., Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\nIn State v. Dick, 1999-NMCA-062, 127 N.M. 382, 981 P.2d 796, this Court held that the State does not have jurisdiction to prosecute a criminal defendant within Parcel Three of the former Fort Wingate Military Reservation (Parcel Three). A subsequent decision by the United States District Court for the District of New Mexico, United States v. M.C., 311 F. Supp. 2d 1281 (D.N.M. 2004), decided otherwise. In this appeal, the State asks this Court to agree with the federal court decision and overrule its holding in Dick. Because we continue to believe that Parcel Three is within \u201cIndian country\u201d as defined by 18 U.S.C. \u00a7 1151 (1949) and discussed in Alaska v. Native Village of Venetie Tribal Government {Venetie), 522 U.S. 520 (1998), we affirm the ruling of the district court dismissing the State\u2019s prosecution.\nBACKGROUND\nA petition charged Child (an enrolled member of the Navajo Nation) with committing the delinquent act of battery upon a school employee. Child filed a motion to dismiss for lack of subject matter jurisdiction, asserting that the incident charged occurred in \u201cIndian country\u201d under Dick. As described in detail in Dick,\n\u201cFort Wingate\u201d refers to 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 a public law retaining title to 13,150 acres of Fort Wingate in the United States, but transferring the land to the Department of the Interior for the use of the Bureau of Indian Affairs (BIA). See Public Law 567, 64 Stat. 248 (1950)____The Fort Wingate area remains titled in the United States government, with the exception of sixteen acres that are privately owned.\nDick, 1999-NMCA-062, \u00b6 3. As further described in Dick, Fort Wingate consists of four separately administered parcels. Id. \u00b6 4. The incident in this case took place at Wingate High School, which is located in Parcel Three, the same parcel as in Dick and M.C. Dick, 1999-NMCA-062, \u00b6 5; M.C., 311 F. Supp. 2d at 1282.\nAccording to the district court\u2019s findings of fact, in 1950, Parcel Three was assigned to the BIA for school purposes, and the BIA operates Wingate High School and Wingate Elementary School on Parcel Three \u201cprimarily, but not exclusively, for the education of Indian [cjhildren.\u201d The BIA controls all occupancy within Parcel Three except on the privately owned property, which is surrounded by Parcel Three. The BIA housing is exclusively for students and school employees and their families. The students at the schools are mostly Navajo; ninety-eight percent of the 540 students at the high school, with the remainder from other Indian tribes, and the majority of the 617 students at the elementary school. About seventy-five percent of the high school students and fifty percent of the elementary school students board at the student dormitories. A school board elected at Navajo Nation elections establishes school policies, curriculum, and budget, and the schools also comply with the State of New Mexico educational requirements, including teacher licensure. The principals are BIA employees. With respect to law enforcementprotective services, the Navajo Nation, McKinley County Sheriff\u2019s Office, and the New Mexico State Police all serve Parcel Three. Utility and fire protective services are not provided by \u201cany Indian Tribe, Indian government, or Indian enterprise.\u201d The Navajo Nation has prosecuted misdemeanors that have occurred at the schools in the Navajo Nation courts. M.C., 311 F. Supp. 2d at 1284.\nConcluding that it was bound by Dick, the district court granted Child\u2019s motion to dismiss. The State appealed.\nDEFINITION OF INDIAN COUNTRY\nThe central issue before us is whether Parcel Three is within \u201cIndian country\u201d as defined by Congress in 18 U.S.C. \u00a7 1151. If Parcel Three, the location of the incident giving rise to the petition charging Child, is within \u201cIndian country,\u201d the State would, as a general matter, lack jurisdiction over the case. See Dick, 1999-NMCA-062, \u00b6 8 (stating that \u201c[a]s a general principle, a state has no jurisdiction over crimes committed by an Indian in \u2018Indian country\u2019\u201d). Because the State does not contest the facts found by the district court, we review de novo whether the district court correctly applied the law to the facts, viewing the facts in the manner most favorable to Child as the prevailing party. See State v. Frank, 2002-NMSC-026, \u00b6 10, 132 N.M. 544, 52 P.3d 404.\n18 U.S.C. \u00a7 1151 provides:\n\u201cIndian country[,]\u201d 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.\nAt issue in this case is Subsection (b), whether Parcel Three is within \u201cIndian country\u201d because it is a \u201cdependent Indian community.\u201d The United States Supreme Court has interpreted this subsection to include two requirements for a finding of a dependent Indian community, that the land in question (1) \u201cmust have been set aside by the Federal Government for the use of the Indians as Indian land\u201d; and (2) \u201cmust be under federal superintendence.\u201d Venetie, 522 U.S. at 527. The State concedes that Parcel Three is under federal superintendence; it is the first requirement, a federal set aside, that raises the differences in the parties\u2019 positions.\nFEDERAL SET-ASIDE REQUIREMENT\nIn interpreting 18 U.S.C. \u00a7 1151, the Supreme Court in Venetie observed that the \u201cfederal set-aside requirement ensures that the land in question is occupied by an \u2018Indian community].]\u201d\u2019 Venetie, 522 U.S. at 531. By footnote, it further observed that some congressional action was necessary \u201cto create or to recognize Indian country.\u201d Id. n.6.\nThe United States Supreme Court stated that 18 U.S.C. \u00a7 1151(b) was a codification by Congress of the two requirements that the Court had previously held to be required for a finding of \u201cIndian country\u201d in two cases, United States v. Sandoval, 231 U.S. 28 (1913), and United States v. McGowan, 302 U.S. 535 (1938). Venetie, 522 U.S. at 528-30. Sandoval involved the jurisdiction of the Santa Clara Pueblo land that, although held in fee simple by the Pueblo, was recognized by Congress as the Pueblo\u2019s ancestral land and was subject to Congressional enactments \u201cin the exercise of the Government\u2019s guardianship over . . . [Indian] tribes and their affairs, including federal restrictions on the lands\u2019 alienation.\u201d Venetie, 522 U.S. at 528 (alteration in original) (internal quotation marks and citations omitted). The Court held that Congress \u201ccould exercise jurisdiction over the Pueblo lands, under its general power over all dependent Indian communities within its borders].]\u201d Id. (internal quotation marks and citation omitted). In addition, by executive orders, additional public land had been reserved for the Pueblos\u2019 \u201cuse and occupancy.\u201d Id. (internal quotation marks and citation omitted). In McGowan, the government held the land \u201cin trust for the benefit of the Indians residing there.\u201d Venetie, 522 U.S. at 529. The Court held that the Government created an Indian colony that had been \u201cvalidly set apart for the use of the Indians . . . under the superintendence of the Government\u201d was \u201cIndian country.\u201d Id. (alteration in original) (internal quotation marks and citation omitted).\nM.C., relying on Venetie, Sandoval, and McGowan, concluded, as did the Tenth Circuit in Blatchfordv. Sullivan, 904 F.2d 542 (10th Cir. 1990), that the federal set-aside requirement is not met unless the community at issue is \u201clocated on tribal lands or land held in trust for Native Americans.\u201d M.C., 311 F. Supp. 2d at 1295. In addition, M.C. declined to find a dependent Indian community because the Wingate school community was not \u201ccreated by Native Americans themselves or the federal government to provide for the use, occupancy],] and protection of the community.\u201d Id.\nAs discussed in M.C., although the federal cases addressed in Venetie and M.C. do not conclude that there is a dependent Indian community without tribal or trust land, we do not read Venetie to restrict a dependent Indian community to tribal or trust land. M.C., 311 F. Supp. 2d at 1294. Venetie only necessitates a federal set aside and federal superintendence for a finding of a dependent Indian community. Venetie, 522 U.S. at 530. Indeed, the federal set-aside requirement may be more evident if tribal or trust land is involved; nevertheless, such ownership is not required.\nM. C. also emphasizes that \u201cno Native American tribe dwells on the land in Parcel Three.\u201d 311 F. Supp. 2d at 1295. It discounts that students and staff live at the school or in Parcel Three because such occupancy \u201cis dependent upon attendance or employment at the [sjchool.\u201d Id. According to M.C., a federal set aside demands that the resultant community be \u201ccreated by Native Americans themselves or the federal government to provide for the use, occupancy},] and protection of the community.\u201d Id. It relies in this regard on United States v. Myers, 206 F. 387 (8th Cir. 1913), in which the Eighth Circuit held that the United States\u2019 reserving a tract of land that Indian tribes ceded to the United States for public purposes, including a boarding school for Indians, did not convert the tract of land into \u201cIndian country.\u201d Id. at 393-94. The Eighth Circuit stated that \u201cIndian country\u201d required retention by Indians of \u201cthe right of use and occupancy, involving \u2014 under certain restrictions \u2014 freedom of action and of enjoyment in their capacity as a distinct people}.]\u201d Id. at 394.\nHowever, as with ownership, nothing in the Venetie federal set-aside requirement makes such a demand in the limited manner that M.C. and Myers suggest. Myers was decided before 18U.S.C. \u00a7 1151 was enacted and did not address the concept of \u201cdependent Indian community\u201d stated in the statute. By setting aside Parcel Three, the federal government did provide for the use and occupancy of the land by Native Americans. As discussed in Dick, by virtue of the federal set aside of Public Law 567, the federal government created a community for the education and occupancy of primarily Native American students. Dick, 1999-NMCA-062, \u00b6 23. Although the Navajo Nation shares oversight responsibilities over Parcel Three with the BIA and the State, it nevertheless exercises a degree of control with respect to the protection of Parcel Three through emergency response and courtjurisdiction and to the operation of the schools through election to the school board.\nOVERRULING OF DICK\nWe held in Dick that Parcel Three of the former Fort Wingate Military Reservation met both the set-aside and federal-superintendence requirements of Venetie such that it is a \u201cdependent Indian community\u201d under 18 U.S.C. \u00a7 1151. Dick, 1999-NMCA-062, \u00b6 28. The State requests that we overturn Dick, a request that we do not consider lightly. We share our Supreme Court\u2019s view and \u201care reluctant to overturn precedent because it promotes stability of the law, fairness in assuring that like cases are treated similarly, and judicial economy.\u201d State v. Riley, 2010-NMSC-005, \u00b6 34, 147 N.M. 557, 226 P.3d 656. We will nevertheless deviate from our precedent for compelling reasons, including when the previous decision is \u201cso unworkable as to be intolerable\u201d or \u201cindefensible.\u201d Id. (internal quotation marks and citation omitted); State v. Kerby, 2005-NMCA-106, \u00b6 29, 138 N.M. 232, 118 P.3d 740, aff\u2019d, 2007-NMSC-014, \u00b6 26, 141 N.M. 413, 156 P.3d 704.\nThe State\u2019s arguments in this appeal do not compel our departing from Dick. First, as we have discussed, Parcel Three fits within the set-aside requirement of Venetie when we do not read Venetie in the overly restrictive manner as suggested by M.C. and the State. Second, in State v. Quintana, 2008-NMSC-012, \u00b6 6, 143 N.M. 535, 178 P.3d 820, our Supreme Court relied on Dick in considering the sufficiency of the federal set-aside requirement before it in that case. Third, although the State asserts that in the aftermath of M.C. an intolerable situation exists in that \u201cfederal criminal jurisdiction over major crimes committed\u201d in Parcel Three does not lie, the issue before this Court in Dick, and in this case, is the application of state, not federal, jurisdiction. M.C. is a decision of a single federal district court. The decision to prosecute crimes in federal court rests with the United States Attorney.\nCONCLUSION\nAs we held in Dic/c, Parcel Three of the former Fort Wingate Reservation is a \u201cdependent Indian community\u201d under 18 U.S.C. \u00a7 1151. Therefore, because the acts addressed in this case occurred in \u201cIndian country,\u201d the State did not have jurisdiction to prosecute the case. We affirm the district court\u2019s grant of the motion to dismiss.\nIT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nWE CONCUR:\nMICHAEL D. BUSTAMANTE, Judge\nMICHAEL E. VIGIL, Judge", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General James W. Grayson, Assistant Attorney General Santa Fe, NM for Appellant", "Bennett J. Baur, Acting ChiefPublic Defender B. Douglas Wood III, Assistant Appellate Defender Santa Fe, NM for Appellee", "Harrison Tsosie, Attorney General Paul W. Spruhan, Assistant Attorney General Window Rock, AZ for Amicus Curiae Navaj o Nation Department of Justice" ], "corrections": "", "head_matter": "Certiorari Granted, July 12, 2013,\nNo. 34,122\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-078\nFiling Date: April 1, 2013\nDocket No. 31,322\nSTATE OF NEW MEXICO, Plaintiff-Appellant, v. STEVEN B., Defendant-Appellee.\nGary K. King, Attorney General James W. Grayson, Assistant Attorney General Santa Fe, NM for Appellant\nBennett J. Baur, Acting ChiefPublic Defender B. Douglas Wood III, Assistant Appellate Defender Santa Fe, NM for Appellee\nHarrison Tsosie, Attorney General Paul W. Spruhan, Assistant Attorney General Window Rock, AZ for Amicus Curiae Navaj o Nation Department of Justice" }, "file_name": "0488-01", "first_page_order": 504, "last_page_order": 509 }