{ "id": 2834105, "name": "STATE of New Mexico, Plaintiff-Appellee, v. John Paul CUTNOSE, Defendant-Appellant", "name_abbreviation": "State v. Cutnose", "decision_date": "1974-10-30", "docket_number": "No. 1444", "first_page": "307", "last_page": "322", "citations": [ { "type": "official", "cite": "87 N.M. 307" }, { "type": "parallel", "cite": "532 P.2d 896" } ], "court": { "name_abbreviation": "N.M. Ct. 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John Paul CUTNOSE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of two counts of aggravated assault contrary to \u00a7 40A-3-2(A), N.M.S..A.1953 (2d Repl.Vol. 6), two counts of aggravated assault upon a peace officer contrary to \u00a7 40A-22-21(A) (1), N.M.S.A.1953 (2d Repl.Vol. 6), and one count of criminal trespass contrary to \u00a7 40A-14-1, N.M.S.A.1953 (2d Repl.Vol. 6). These crimes occurred at a hospital in Gallup, McKinley County, New Mexico. Defendant asserts several grounds for reversal. Three issues are dispositive. They are: (1) jurisdiction, (2) the indictment failed to properly charge an offense, and (3) instructions on the required intent.\nJurisdiction\nBy two pretrial motions, defendant asserted New Mexico courts had no jurisdiction over the defendant or over the offenses charged. There are two claims.\nThe first claim is based on federal statutes. 18 U.S.C.A. \u00a7 1153 (Supp.1974) provides that an Indian committing certain identified crimes \u201cwithin the Indian country\u201d is subject to the \u201cexclusive jurisdiction of the United States.\u201d The crimes identified appear to include the four assault convictions, but do not appear to include the criminal trespass conviction. 18 U.S.C.A. \u00a7 1151 defines \u201cIndian country\u201d to mean Indian reservations, \u201cdependent Indian communities\u201d and Indian allotments. Defendant claims the hospital where the crimes were committed was a dependent Indian community.\nThe second claim is based on the Navajo Tribal Code. The provision of the Tribal Code, quoted in defendant\u2019s brief, is 7 N. T.C. \u00a7 134. That section purports to extend the territorial jurisdiction of the Navajo Tribe and the Navajo Tribal Courts to Navajo Indian Country. The definition of Navajo Indian Country includes \u201cland * * * within the exterior boundaries of the Eastern Navajo Agency.\u201d The definition also includes land not covered by previous definitions \u201cadministered by the Federal Indian Service for the benefit of dependent Navajo \u2018Indian communities.\u2019 \u201d\nThe second claim raises legal issues as to the authority of the Navajo Tribe, by adopting its Code, to oust the State of New Mexico of its jurisdiction. Compare Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). The legal issues need not be answered. Whether the physical location of the crimes was within a dependent Indian community under 18 U.S.C.A. \u00a7 1151, or within Navajo Indian Country defined in the Tribal Code, are questions of fact. United States v. Martine, 442 F.2d 1022 (10th Cir. 1971); compare Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974). We dispose of both jurisdictional claims on the facts.\nA hearing was held on various motions. Included was defendant\u2019s first motion attacking the court\u2019s jurisdiction. The trial court\u2019s order of March 27, 1973 deferred ruling on the jurisdictional claim \u201cuntil April 5, 1973, to afford [defendant] an opportunity to present evidence thereon.\u201d No evidence was presented. Instead, defendant filed a second motion attacking the court\u2019s jurisdiction on April 13, 1973. The trial court\u2019s order denying both motions was entered April 27,1973.\nThe jurisdictional challenge was to a court exercising general jurisdiction. N.M.Const. Art. 6, \u00a7 13. The burden was upon defendant to demonstrate a lack of jurisdiction in the district court. Having presented no evidence as to lack of jurisdiction, defendant did not meet his burden in connection with the pretrial motions. State v. Lucero, 82 N.M. 367, 482 P.2d 70 (Ct.App.1971); compare Begay v. First National Bank of Farmington, 84 N.M. 83, 499 P.2d 1005 (Ct.App.1972).\nAt trial, defendant renewed his jurisdictional claims. The evidence at trial is that the crimes were committed at \u201cthe U. S. Public Health Service Hospital known as the Gallup Indian Medical Center,\u201d that all the taxpayers own the hospital. The chief executive officer of the hospital testified his immediate superior was in Window Rock, Arizona. The FBI agent testified that in negotiating the surrender of defendant and others, the agent insisted that the surrender be to the Sheriff of McKinley County because \u201cjurisdiction in this largely rested with the McKinley County * * *The evidence supports the inference that patients of the hospital were largely Navajos. However, \u201c[t]he mere presence of a group of Indians in a particular area would undoubtedly not suffice\u201d to establish a dependent Indian community under 18 U.S.C.A. \u00a7 1151. United States v. Martine, supra.\nThe evidence at trial did not establish an absence of trial court jurisdiction on the basis of a dependent Indian community under 18 U.S.C.A. \u00a7 1151, or on the basis of a dependent Navajo Indian Community under the Tribal Code.\nThe jurisdictional claim based on the Navajo Tribal Code has two additional deficiencies in the facts, (a) In his brief, defendant asserts the hospital is on land within the exterior boundaries of the Eastern Navajo Agency. This contention appears for the first time in the brief and has no factual support, (b) The Tribal Code provision relied upon purports to apply only to Navajos. The record indicates defendant is an Indian, there is neither evidence nor inference that defendant is a Navajo.\nThere is no factual basis for defendant\u2019s jurisdictional claims.\nIndictment Failed to Properly Charge an Offense\nBy pretrial motion, defendant attacked the legal sufficiency of each count of the indictment. Error is claimed because the motion was denied. We consider only the sufficiency of the criminal trespass charge.\nRelying on Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), defendant asserts the indictment deprived him of due process of law because it did not state the particulars of the trespass charge. Russell involved the sufficiency of an indictment charging violation of a federal statute making it a crime to refuse to answer certain questions when summoned before a congressional subcommittee. The indictment charged, in the language of 2 U.S.C. \u00a7 192, that defendant refused to answer questions which \u201c \u2018were pertinent to the question then under inquiry\u2019 * * *Such a charge was held to be legally insufficient because the indictment failed to identify the subject under inquiry at the time of defendant\u2019s refusal to answer.\nRussell, supra, is not applicable. In this case, defendant was charged with violation of a specific statutory section. The indictment stated the common name of the offense, stated a specific date of the offense, and stated the offense occurred in McKinley County, New Mexico. The uncertainty of the offense charged in Russell, does not exist in this case. Rather, the indictment sufficiently informed defendant of what he must be prepared to meet. Russell, supra. The indictment did not deprive defendant of due process. See State v. Herrod, 84 N.M. 418, 504 P.2d 26 (Ct.App.1972).\nDefendant also asserts the indictment failed to state the essential facts as required by \u00a7 41-23-5 (d), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973). The essential facts, allegedly missing, were the details of the charge. What is essential depends on that which is conveyed by other parts of the indictment. State v. Vigil, 85 N.M. 328, 512 P.2d 88 (Ct.App.1973). The indictment provided the date, common name and statutory section number of the offense. The indictment also identified witnesses upon whose testimony the indictment was based. These witnesses included named personnel at the \u201cU. S. Public Health Service Hospital, Gallup, New Mexico.\u201d\nDefendant does not assert what essential facts were missing. Accordingly, we cannot hold the indictment failed to allege essential facts. In addition, \u00a7 41-23-7(a) and (d), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1973) require a showing of prejudice due to a defect, error, or omission in an indictment. Defendant has not attempted to show any prejudice resulting from the manner in which the offense was charged. State v. Padilla, 86 N.M. 282, 523 P.2d 17 (Ct.App. 1974).\nThe indictment charging criminal trespass was legally sufficient.\nInstructions on Required Intent\nDefendant asserts that the trial court failed to properly instruct the jury on the intent required for conviction on the four counts involving aggravated assault. The court did instruct the jury in the terms of the statutes. The State asserts that this was sufficient.\nThe intent required by \u00a7 40A-3-2(A), supra, is that of conscious wrongdoing. State v. Mascarenas, 86 N.M. 692, 526 P.2d 1285 (Ct.App.), decided September 11, 1974. Section 40A-22-21(A) (1), supra, is similar to \u00a7 40A-3-2(A), supra. Both define aggravated assault as \u201cunlawfully assaulting or striking at * * * with a deadly weapon.\u201d Section 40A-3-2(A), supra; \u00a7 40A-22-21(A) (1), supra. The reasoning and conclusion of the Court in Mascarenas, supra, is equally applicable to \u00a7 40A-22-21(A) (1), supra. Conscious wrongdoing is an essential element of \u00a7 40A-22-21 (A)(1), supra.\nIf the statute sets forth the required intent, instructions in the language of the statute are sufficient. State v. Gonzales, 86 N.M. 556, 525 P.2d 916 (Ct.App. 1974). However, the language of \u00a7 40A-3-2(A), supra, was insufficient to inform the jury that conscious wrongdoing was a required element. State v. Mascarenas, supra. We have held that \u00a7\u00a7 40A-22-21(A)(1) and 40A-3-2(A), supra, require the same intent. Thus, instructions in the language of \u00a7 40A-22-21(A) (1), supra, were insufficient to inform the jury of the intent required.\nBecause the jury was not instructed on the required criminal intent, the convictions for violations of \u00a7\u00a7 40A-3-2(A) and 40A-22-21(A) (1), supra, are reversed. The criminal trespass conviction is affirmed. The cause is remanded for further proceedings consistent with this opinion.\nIt is so ordered.\nLOPEZ, J., concurs.\nSUTIN, J., dissents.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent. The conviction of Mr. Cut-nose should be reversed because the State of New Mexico lacked jurisdiction to indict and try this defendant.\nThe State\u2019s jurisdiction involves one issue of Indian-State relations never before decided \u2014 the meaning of a \u201cdependent Indian community\u201d. This jurisdictional question is of paramount importance because it involves \u201cgeneral public interest\u201d and the \u201cfundamental rights of a party\u201d. Supreme Court Rule 11. N.M.S.A. \u00a7 21-12-11 (1974 Interim Supp.).\n(A) The Alleged Offenses Took Place in Navajo \u201cIndian Country\u201d.\n(1) Navajo \"Indian Country\u201d Defined\n\u201cIndian Country\u201d is defined, in 18 U.S. C.A. \u00a7 1151 (1966), as follows:\n[T]he term \u201cIndian country\u201d, * * * means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government * * * (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 * * *. [Emphasis added.]\nThe Navajo Tribal Council adopted Resolution CMY-28-70, codified into the Navajo Tribal Code as 7 N.T.C. \u00a7 134 (1970), on May 7, 1970. According to this section of the Navajo Tribal Code,\nthe term Navajo \u201cIndian Country\u201d shall he defined as and shall include * * * all land included within the exterior boundaries of the Eastern Navajo Agency, [that is] land management districts 15, 16, and 19. * * *\nThe Preamble to Resolution CMY-28-70 recognizes that, \u201c[t]he population of the Eastern Agency area is predominately Navajo, except for the city of Gallup. * * *\u201d 7 N.T.C. \u00a7 134 (History). Accordingly, the Resolution, as codified into Navajo law, excludes Gallup from Navajo \u201cIndian Country\u201d with the following provision :\n(d) All predominately non-Indian communities within the exterior boundaries of Navajo \u201cIndian Country\u201d are excepted from and not included within the definition of Navajo \u201cIndian Country,\u201d in compliance with 18 U.S.C.A. \u00a7 1151. 7 N.T.C. \u00a7 134(d).\n(2) This Cotirt Can Take Judicial Notice of Geographical Facts.\nThe Majority Opinion states that defendant\u2019s claim has no factual support in the trial record that the locus of the alleged offenses (the Navajo Indian Medical Center) is in Navajo \u201cIndian Country\u201d. However, this Court can take judicial notice of geographical facts. Empire Fire and Marine Insurance Co. v. Lee, 86 N.M. 739, 527 P.2d 502 (Ct.App.), decided October 9, 1974: Carlsbad Broadcasting Corp. v. Bureau of Revenue, 51 N.M. 360, 184 P.2d 434 (1947); Hutcheson v. Atherton, 44 N.M. 144, 99 P.2d 462 (1940).\nIn other jurisdictions, the doctrine of judicial notice is available to appellate courts, as well as trial courts. Granville-Smith v. Granville-Smith, 349 U.S. 1, 75 S.Ct. 553, 99 L.Ed. 773 (1955); Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.Ct. 606, 93 L.Ed. 741 (1949); Atchison, Topeka and Santa Fe Ry. Co. v. United States, 284 U.S. 248, 52 S.Ct. 146, 76 L.Ed. 273 (1932); United States v. Casson, 140 U.S.App.D.C. 141, 434 F.2d 415 (1970); People v. Melchor, 237 Cal.App.2d 685, 47 Cal.Rptr. 235 (Ct.App. 1st Dist. 1965); Johnson v. State, 8 Md.App. 28, 257 A.2d 756 (1969); Warren v. State, 162 Neb. 623, 76 N.W.2d 728 (1956); People v. Sowle, 68 Misc.2d 569, 327 N.Y.S.2d 510 (Fulton Cnty Ct.1971); Frazier v. State, 267 P.2d 155 (Okl.Cr.App.1953); State v. Marasco, 81 Utah 325, 17 P.2d 919 (1933).\nFurthermore, this Court can take judicial notice of geographical facts when necessary to consider a jurisdictional question when the issue is one that involves \u201cgeneral public interest\u201d, and the \u201cfundamental rights of a party\u201d. N.M.S.A. \u00a7 21-12-11 (Rule 11) (1974 Interim Supp.). See, also, \u00a7 20-4-201 (b), N.M.S.A.1953 (Repl.Vol. 4, 1973 Supp.); \u00a7 21-1-1 (44)(d)(8), N.M.S. A.1953 (Repl.Vol. 4, 1970 Supp.).\n(3) The Locus of the Alleged Offenses Was in Navajo \u201cIndian Country.\u201d\nThe locus of the alleged offenses is the Gallup Indian Medical Center. I take judicial notice of the following geographical facts: 1) the boundaries of the Eastern Navajo Agency; and 2) the_city limits of Gallup, New Mexico.\nThe Gallup Indian Medical Center, located in the environs of Gallup, New Mexico, is within the boundaries of the Eastern Navajo Agency. See map, Appendix II to this Opinion, infra. And the Gallup Indian Medical Center is located outside the Gallup city limits. In the vicinity of the Medical Center, the southern boundary of the city limits extends from east to west along the southern edge of Nizhoni Boulevard, while the Indian Medical Center is located south of Nizhoni Boulevard, just outside the city limits. Accordingly, although the jurisdiction of the Gallup City Police extends along Nizhoni Boulevard, law enforcement on the Medical Center grounds is the responsibility of the McKinley County Sheriff\u2019s Office, not of the city police. In the instant case, an officer from the Sheriff\u2019s Office made the arrest.\nSince the alleged offenses took place inside the Eastern Navajo Agency but outside the city of Gallup, they took place in Navajo \u201cIndian Country\u201d. 7 N.T.C. \u00a7 134.\n(B) The Characterization of The Eastern Navajo Agency as \u201cIndian Coimtry\u201d by 7 N.T.C. \u00a7 134 Is Authoritative.\nThe Navajo Tribe has delegated its legislative power to the Navajo Tribal Council, whose enactments are codified into the Navajo Tribal Code. Only the \u201cclearly expressed constraint\u201d of the federal government restricts that legislative power. Navajo Tribe of Indians v. Holyan, Docket No. A-CR-15-72, at 2 (Navajo Court of Appeals, August 22, 1973) (See Appendix I, infra). The reason for this is that the Navajo Tribe, like other Indian tribes:\nbegan its relationship with the Federal Government' as a sovereign or quasi-sovereign government, recognized as such by treaty and in legislation. * * * The statutes of Congress * * * must be examined carefully in many instances to determine the limitations of tribal sovereignty. * * * What is not expressly limited often remains within the domain of tribal sovereignty simply because State jurisdiction is federally excluded and governmental authority must be found somewhere.\n* * * * * *\nThe acts of Congress which appear to limit the powers of an Indian tribe are not to be unduly extended by doubtful inference. United States Department of the Interior, Federal Indian Law 395-96 (1958) [Emphasis added.].\nSee, also, In re Mayfield, Petitioner, 141 U.S. 107, 115-116, 11 S.Ct. 939, 941, 35 L. Ed. 635, 638 (1891).\nWhile it is so that Congress retains paramount authority to legislate for and enforce its laws on all the tribes in certain respects, only in special instances has it done so. . .\n* * * [The Secretary of the Interi- or\u2019s] approval of the tribal action [in this case] was entirely in keeping with that abstinence from federal intervention in the internal affairs of an Indian tribe which the law clearly requires. The Secretary had simply recognized the valid governing authority of the Tribal Council. Oliver v. Udall, 113 U.S.App.D.C. 212, 306 F.2d 819, 822-823 (1962). [Emphasis added; footnotes omitted.]\nThe Supreme Court has stated that, \u201cabsent governing acts of Congress,\u201d state action must not \u201cinfringe [d] on the right of reservation Indians to make their own laws and be ruled by them.\u201d Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 270-271, 3 L.Ed.2d 251 (1958).\nThe New Mexico Supreme Court has, likewise, held that the State cannot interfere with an Indian tribe\u2019s right of self-government or impair a right granted, reserved or preempted by Congress. Sangre de Cristo Dev. Corp., Inc. v. City of Santa Fe, 84 N.M. 343, 503 P.2d 323 (1972); cf. Norvell v. Sangre de Cristo Dev. Corp., Inc., 372 F.Supp. 348 (D.C.N. M.1974).\nAbsent clear restraint by or conflict with federal law, state and federal authorities must grant comity to Navajo Tribal Council legislation (codified as the Navajo Tribal Code).\nDoes 7 N.T.C. \u00a7 134, which sets the boundaries of Navajo \u201cIndian Country\u201d, conflict with federal law? A search of the law reveals that it does not.\nThe Tenth Circuit, in Tooisgah v. United States, 186 F.2d 93 (1950), stated that the term, \u201cIndian Country\u201d, has a \u201cbroad and flexible definition.\u201d Id., at 99.\nNavajo Tribal Council Resolution CMY-28-70 is the source of 7 N.T.C. \u00a7 134. By reading the Preamble to that Resolution alongside 18 U.S.C. \u00a7 1151, the Resolution follows the criteria of the federal statute when it classifies the Eastern Navajo Agency as \u201cIndian Country\u201d. The Resolution recognizes that 18 U.S.C.A. \u00a7 1151 defines three types of geographic areas which can be called \u201cIndian Country\u201d, the second of which is \u201cdependent Indian communities\u201d. And it then states that the Eastern Navajo Agency is a \u201cdependent Indian Community.\u201d 7 N.T.C. \u00a7 134 (History: Preamble \u00a7\u00a7 6, 10).\nThe Tenth Circuit Court of Appeals, in a case arising out of New Mexico, has stated the criteria to be used to decide whether an area is a \u201cdependent Indian community\u201d. These are: \u201cthe nature of the area in question, the relationship of the inhabitants of the area to Indian Tribes and to the federal government, and the established practice of government agencies toward the area.\u201d United States v. Martine, 442 F.2d 1022, 1023 (1971). These very criteria are followed by the Tribal Council Resolution in stating its reasons why the Eastern Navajo Agency is a \u201cdependent Indian community\u201d:\n* * * The Bureau of Indian Affairs, by virtue of the establishment of the Eastern Navajo Agency and by virtue of the boundaries established for the Agency districts, has defined the area within the exterior boundaries of the Eastern Agency Districts as a \u201cdependent Indian Community\u201d, and\n* * * Over sixty percent of the land within the Eastern Agency exterior boundaries is owned either by [sic] the Navajo Tribe or held in trust for Navajo Indian allottees, and\n* * * The population of the Eastern Agency area is predominately Navajo, except for the city of Gallup, New Mexico. * * * 7 N.T.C. \u00a7 134 (History: Preamble \u00a7\u00a7 7, 8, 9)\nThe characterization of the Eastern Navajo Agency as \u201cIndian Country\u201d, in 7 N.T.C. \u00a7 134, closely conforms to federal law.\nLacking substantive conflict with federal law, the only other possible restraint on the legality and binding force of 7 N.T.C. \u00a7 134 arises from 25 C.F.R. \u00a7 11.1(e). This section indicates that Interior Department approval is required.\nNothing in this section shall prevent the adoption by the tribal council of ordinances applicable to the individual tribe, and after such ordinances have been approved by the Secretary of the Interior they shall be controlling. * * *\nThere is no record of Department of the Interior action on this Resolution. However, the Department follows the rule that approval of tribal council resolutions is exercised by the absence of explicit disapproval. Memorandum, United States Department of the Interior, Subject: Approval of Tribal Ordinances, June 8, 1959 (appended to Holyan-, see Appendix, infra.). See, also, Holyan, at 3. This rule reflects the federal government\u2019s policy of abstaining from intervention in the internal affairs of Indian tribes to the greatest extent possible. Williams v. Lee, supra, 358 U.S. at 221-222, 79 S.Ct. 269; Oliver v. Udall, supra, 306 F.2d at 822-823.\n7 N.T.C. \u00a7 134 has never been acted on by the Department of the Interior. Hence, by Departmental policy, it has been approved. In any case, 25 C.F.R. \u00a7 11.1 applies only to Indian reservations on which Courts of Indian Offenses are maintained. 25 C.F.R. \u00a7 25.1(a). Since there are no such courts on the Navajo Reservation, the regulation is not applicable. Holyan, supra, at 3 (See Appendix).\nOne must conclude that Section 134 of the Navajo Tribal Code speaks with authority when it includes the Eastern Navajo Agency within Navajo \u201cIndian Country\u201d.\n(C) With Certain Exceptions, Not Applicable Here, The State of New Mexico Does Not Have Criminal Jurisdiction in \u201cIndian Country\u201d Within New Mexico.\nThe Ten Major Crimes Act, 18 U.S.C.A. \u00a7 1153(1968) provides that an Indian who commits one of ten enumerated offenses in \u201cIndian Country\u201d falls \u201cwithin the exclusive jurisdiction of the United States.\u201d The Indian defendant in this case was convicted of two counts of aggravated assault, which is defined as \u201cunlawfully assaulting or striking at another with a deadly weapon.\u201d Section 40A-3-2, N.M.S.A.1953 (Vol. 6, 2d Repl.1970). As the Majority Opinion seems to recognize, without more, 18 U.S.C.A. \u00a7 1153 prohibits State jurisdiction on this charge, since two of the offenses named in \u00a7 1153 are \u201cassault with intent to kill\u201d, and \u201cassault with a dangerous weapon\u201d. The State lacked jurisdiction to try defendant for aggravated assault. Jurisdiction rests solely in the federal courts. DeMarrias v. United States, 487 F.2d 19 (8th Cir.), cert. denied, 415 U.S. 980, 94 S.Ct. 1570, 39 L.Ed.2d 877 (1974); United States v. Monte, 3 N.M. Gild. 173, 3 N.M. John 126, 3 P. 45 (1884).\nDefendant was also charged with criminal trespass, counter to \u00a7 40A-14-1, N.M.S.A. 1953 (Vol. 6, 2d Repl.1972). As with aggravated assault, the United States Code prohibits State jurisdiction over this offense, within \u201cIndian Country\u201d. 18 U.S.C.A. \u00a7 1152 provides:\nExcept as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States * * * shall extend to the Indian country.\nThis section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.\nThis statute expresses the clear Congressional intent that a) except where the law expressly provides otherwise, and b) except for the enumerated situations in which the Indian tribe has jurisdiction, jurisdiction over offenses committed within \u201cIndian Country\u201d resides solely with the federal government.\nFurthermore, in 1968, Congress passed into law 25 U.S.C.A. \u00a7 1321 (1974 Supp.), which provides an explicit means by which a State may assume criminal jurisdiction in \u201cIndian Country\u201d:\n(a) The consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian Country situated within such State to assume, with the consent of the Indian tribe occupying the particular Indian country or part thereof which could be affected by such assumption, such measure of jurisdiction over any or all of such offenses committed within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over any such offense committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State. [Emphasis added.]\nReading 18 U.S.C.A. \u00a7\u00a7 1151, 1152, 1153 and 25 U.S.C.A. \u00a7 1321 together, the meaning is inescapable that a State does not have criminal jurisdiction in Indian Country within its borders unless it explicitly assumes such jurisdiction, with the consent of the Indian tribe. \u201c[W]e cannot believe that Congress would have required the consent of the Indians affected * * * if the States were free to accomplish the same goal unilaterally * * *MeClanahan v. Arizona State Tax Commission, 411 U.S. 164, 178, 93 S.Ct. 1257, 1265, 36 L.Ed.2d 129, 139 (1973).\nThe Navajo Tribe has not given, nor has the State acted to obtain, the consent of the Tribe to State criminal jurisdiction over the Eastern Navajo Agency. The giving of such consent would seem to go counter to the intent of 7 N.T.C. \u00a7 134. See, also, Holyan.\nState and federal courts have recognized the Congressional intent that either the federal government or the Indian tribe should exercise criminal jurisdiction in \u201cIndian Country\u201d, but that state governments should not have such jurisdiction. The fact situations in most of the cases discussed or cited, infra, involve incidents on Indian reservations. Nonetheless, principles of law that pertain to \u201cIndian Country\u201d apply to \u201cdependent Indian communities\u201d as well as reservations. 18 U.S.C.A. \u00a7 H51.\n(1) Federal Courts\nIn Williams v. Lee, supra, the Supreme Court stated:\nToday the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants. No Federal Act has given state courts jurisdiction over such controversies.\n* * * * * *\nThere can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. 358 U.S. at 222-223, 79 S.Ct. at 272.\nIn In Re Carmen\u2019s Petition, 165 F.Supp. 942 (N.D.Cal.1958), the court rejected the contention that the existence of federal jurisdiction in \u201cIndian Country\u201d does not exclude state jurisdiction:\nThe language of the [Ten Major Crimes] Act [18 U.S.C.A. \u00a7 1153] * * * clearly contemplates that Indian offenders shall be tried exclusively in the federal courts. There are many cases that so hold, and none which hold to the contrary. [Cases cited, Fn. 10] Id., at 948. [Emphasis added.]\nThe Ninth Circuit upheld this decision by stating simply, \u201cThe exhaustive opinion of Judge Goodman leaves nothing to be added, and his judgment is affirmed.\u201d Dickson v. Carmen, 270 F.2d 809, cert. denied, 355 U.S. 924, 78 S.Ct. 367, 2 L.Ed.2d 354 (1958).\nMoreover, \u201c[t]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation\u2019s history.\u201d McClanahan v. Arizona State Tax Commission, supra, 411 U.S. at 168, 93 S.Ct. at 1260 (quoting from Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 991, 89 L.Ed. 1367, 1370 (1944). See Williams v. Lee, supra; Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946); United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832). The language of 18 U.S.C.A. \u00a7 1151(b) by which \u201cdependent Indian communities\u201d is included in \u201cIndian Country\u201d is taken from Sandoval, supra, 231 U.S. at 45-46, 34 S.Ct. 1.\n(2) New Mexico\nIn Your Food Stores, Inc. (NSL) v. Village of Espanola, 68 N.M. 327, 361 P.2d 950 (1961), the Supreme Court stated, \u201cThe early policy of leaving Indians free from state jurisdiction and control is deeply rooted in our nation\u2019s history, [citing Rice, supra].\u201d 68 N.M. at 330, 361 P.2d at 952. The Court added that the State has no jurisdiction \u201cover the Indians or Indian lands, except where such jurisdiction has been specifically granted by Act of Congress, or sanctioned by decisions of the Supreme Court of the United States.\u201d Id. In State v. Warner, 71 N.M. 418, 379 P.2d 66 (1963), the Court followed Williams v. Lee, supra, and Your Food Stores, supra, and added that the State does have criminal jurisdiction over offenses committed on an Indian Reservation by a non-Indian against a non-Indian victim and which do not involve Indian property. See, also, Batchelor v. Charley, 74 N.M. 717, 398 P. 2d 49 (1965); Valdez v. Johnson, 68 N.M. 476, 362 P.2d 1004 (1961); State v. Begay, 63 N.M. 409, 320 P.2d 1017 (1958) (overruled by Warner, supra, on other grounds).\n(3) Leading Cases in Other States\nTo fortify the lack of criminal jurisdiction by New Mexico, we cite leading cases from other states. Morgan v. Colorado River Indian Tribe, 7 Ariz.App. 92, 436 P.2d 484 (Ct.App.), vacated on other grounds, 103 Ariz. 425, 443 P.2d 421 (1968); Application of Denetclaw, 83 Ariz. 299, 320 P.2d 697 (1958); Boyer v. Shoshone-Bannock Indian Tribes, 92 Idaho 257, 441 P.2d 167 (1968); State v. Lussier, 269 Minn. 176, 130 N.W.2d 484 (1964); State v. District Court, 128 Mont. 37, 270 P.2d 396 (1954).\nThe wealth of authority on this question leads inevitably to the conclusion that criminal jurisdiction by the State of New Mexico is excluded from \u201cIndian Country\u201d, with a possible exception in the extreme case that involves a non-Indian defendant, a non-Indian victim, and non-Indian property.\n(D) Whether Defendant Is Or Is Not a Member Of The Navajo Tribe is Irrelevant.\nThe Majority Opinion finds a deficiency in the fact that defendant bases his jurisdictional claim on the Navajo Tribal Code, because the record indicates that defendant is an Indian. It is silent as to whether he is a Navajo Indian. However, the relevant provisions of the Navajo Tribal Code apply to this case whether defendant is a Navajo or a member of another Indian tribe. The Navajo Tribal Code relates to the jurisdictional issue here because it has set the boundaries of Navajo \u201cIndian Country\u201d in such a way that the Indian Medical Center is located within \u201cIndian Country\u201d. The authority of the Tribal Code to define the character of the territory in question derives from the status ot the Navajo Tribe vis-a-vis the federal government and the states. It does not turn on the tribal affiliation of the particular defendant in this case. The State\u2019s lack of jurisdiction in this case follows from its lack of jurisdiction in \u201cIndian Country\u201d. This lack of jurisdiction holds in all criminal cases in \u201cIndian Country\u201d, except possibly where neither defendant nor victim is an \u201cIndian\u201d (regardless of tribe), and the incident does not involve Indian property. See State v. Youpee, 103 Mont. 86, 61 P.2d 832 (1936), in which the court stated that the jurisdictional issue regarding an Indian accused of a crime \u201cturns upon the place of the crime.\u201d 61 P.2d at 834.\n(E) Conclusion\nIn summary, the law as it relates to the jurisdictional question in this case is as follows:\n1) This Court can take judicial notice of geographical facts to fix the location of the Gallup Indian Medical Center with respect to the boundaries of Navajo \u201cIndian Country\u201d.\n2) The Navajo Tribal Code defines the boundaries of Navajo \u201cIndian Country\u201d in such a way that the Medical Center which is the locus of the alleged offenses is in a \u201cdependent Indian community\u201d and, hence, in \u201cIndian Country\u201d.\n3) The Navajo Tribal Code\u2019s characterization of the Eastern Navajo Agency as \u201cIndian Country\u201d closely follows the guidelines for defining \u201cIndian Country\u201d, in 18 U.S.C.A. \u00a7 1151, and for defining a \u201cdependent Indian community\u201d, in United States v. Martine, supra. That characterization is authoritative, by reference to \u00a7 1151 and Martine, as well as pronouncements by the courts on the authority of tribal legislative power.\n4) Whether defendant is a Navajo Indian or a member of another Indian tribe is irrelevant to the question of the State\u2019s jurisdiction.\n5) Since defendant\u2019s alleged offenses took place in Navajo \u201cIndian Country\u201d, the State of New Mexico did not have jurisdiction to try him for those offenses.\nThe conviction below should be reversed.\nAPPENDIX I\nTHE NAVAJO TRIBE OF INDIANS\nPlaintiff\nv.\nIDA HOLYAN\nDefendant\nDecided August 22, 1973\nHeadnotes\n(1) Since the Navajo Nation is a subordinate sovereignty, its powers of self government are subject to treaties and to express legislation of Congress representing the dominant sovereignty.\n(2) The Navajo Tribal Council may not abdicate its powers of self government in the absence of a treaty or the clearly expressed constraint of the dominant sovereignty.\n(3) A determination by the Navajo Tribal Council that Eastern Navajo Agency Land Management Districts 15, 16 and. 19, with the exception of Gallup, New Mexico, is a dependent Indian community and therefore \u201cIndian Country\u201d was supported by the facts and compiled with the standards enunciated by the Federal 10th Circuit Court of Appeals in United States v. Mar-tine, 442 F.2d 1022 (1971).\n(4) The United States Congress has imposed no territorial restriction on the jurisdiction of Indian Courts when an offense has been committed by one Indian against the person or property of another Indian. 18 U.S.C.A. \u00a7 1152.\nOPINION\nKIRK, Chief Justice\nThis case arose from an alleged altercation in the parking lot of the Yah Ta Hey Trading Post at the junction of Highways 666 and 264. The defendant is charged with assault, assault and battery, and malicious mischief against an Indian. An interlocutory appeal on the question of jurisdiction was allowed.\nThe sole question presented and decided by this case is whether or not the Courts of the Navajo Nation have jurisdiction in a criminal case arising in the Checkerboard area, over an Indian defendant, when the complaining witness is also an Indian.\nI\nThe Navajo Tribal Council adopted Resolution CMY-28-70, codified 7 NTC \u00a7 134, on May 7, 1970. This resolution extended the jurisdiction of the Navajo Courts to Navajo \u201cIndian Country\u201d and defined Navajo Indian Country to include the Eastern Navajo Agency, Land Management Districts 15, 16 and 19 with the exception of Gallup.\nThe validity of Resolution CMY-28-70 and amended 7 NTC \u00a7 134 has been questioned by the defendant-appellant on the grounds that the resolution has not been approved by the Secretary of the Interior as provided by 7 NTC \u00a7 1(e) and 17 NTC \u00a7 1.\nSince the Navajo Nation is a subordinate sovereignty, its powers of self government are subject to treaties and to the express legislation of Congress representing the dominant sovereignty. Therefore, the Congress could validly require the approval of the Secretary of the Interior before any Tribal resolution becomes effective. However, it does not follow that the Navajo Tribal Council may, on its own initiative, abdicate its legislative function to any other authority or body. A weaker power does not surrender its independence and its right to self government by associating itself with a stronger power and accepting its protection. Worcester v. Georgia, 6 Pet. 515, 31 U.S. 515, 8 L.Ed. 483 (1832), Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), Iron Crow v. Oglala Sioux Tribe of the Pine Ridge Reservation, 231 F.2d 89-94 (8th Cir. 1956).\nThe sovereign power of the Navajo Nation has been delegated to the Council by the members of the Navajo Nation; the Council may not abdicate its powers of self government in the absence of a treaty or the clearly expressed constraint of the dominant sovereignty.\nThis is reflected by the Court of Appeals for the District of Columbia Circuit in the case of Oliver v. Udall:\nWhile it is so that Congress retains paramount authority to legislate for and enforce its laws on all the tribes in certain respects, only in special instances has it done so. Otherwise, as the Supreme Court so recently stated:\n\u201cThe cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it.\u201d [Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)].\n******\nIt is our view that the Secretary\u2019s approval of the tribal action in 1959 was entirely in keeping with that abstinence from federal intervention in the internal affairs of an Indian tribe which the law clearly requires. The Secretary had simply recognized the valid governing authority of the Tribal Council, [Williams v. Lee, 221, 222, 79 S.Ct. 269, Treaty of 1868. 306 F.2d 819, 822, 823. (CADC 1962).]\nAlthough the defendant-appellant relies on 25 CFR \u00a7 11.1, et seq. which requires Tribal ordinances to be approved by the Secretary of the Interior, the provisions of 25 CFR \u00a7 11 et seq. are only applicable to those reservations on which Courts of Indian Offenses are maintained. 25 CFR \u00a7 11.1(a).\nIt has been repeated by this Court (Navajo Tribe of Indians v. Orlando Helicopter Airways. A-CV-05-72, Jan. 12, 1972, and by Federal Courts (Oliver v. Udall, supra) that 25 CFR \u00a7 11, et seq. has no applicability to the Navajo Nation. Although the Law and Order Code was substantially adopted verbatim, it takes its effect as tribal law and not as the law of the United States imposed on the Tribe. Not only is the Navajo Tribal Council free to amend, replace or abolish it at any time without the consent or approval of the Secretary of the Interior, but any attempt to delegate such a power is completely void. The approval and signature of the Secretary or his delegated representative is a meaningless formality. This is reflected by the language of Oliver v. Udall, and was apparently acknowledged by the opinion of the Assistant Solicitor, Legal Activities, to the Commissioner of Indian Affairs.\nII\nThe validity of Resolution CMY-28-70, 7 NTC \u00a7 134 depends not only whether or not the requirement of approval by the Secretary of the Interior is a valid prerequisite'to the validity of Tribal resolutions, but also on whether or not such an assumption of judicial power by the Navajo Nation is precluded by the Federal statutes.\n18 U.S.C.A. \u00a7 1152 establishes the authority of an Indian tribe to punish any Indian committing any offense in Indian Country. The term \u201cIndian Country\u201d is defined by 18 U.S.C.A. \u00a7 1151. Therefore, if the Yah Ta Hey junction, the site of the incident, is within one of the statutory definitions of \u201cIndian Country\u201d then the grant of jurisdiction by the Navajo Tribal Council is valid.\nSection 1151(b) describes \u201call 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 * * * \u201d as within Indian country.\nA determination that a grant of jurisdiction to the Navajo Courts by the Tribal Council is valid under these provisions requires a definition of \u201cdependent Indian community.\u201d\nThe Tenth Circuit Court of Appeals considered the definition of \u201cdependent Indian community\u201d in United States v. Martine, 442 F.2d 1022 (10th Cir. 1971). The Mar-tine case involved the prosecution of an Indian for involuntary manslaughter. The Court acknowledged that federal jurisdiction under the Major Crimes Act, 18 U.S. C.A. \u00a7 1153 rested on the claim that the Ramah area of the \u201cCheckerboard\u201d area is a \u201cdependent Indian community.\u201d Although the incident involved in the Mar-tine case took place on land which had been purchased by the Navajo Tribe from a corporate owner, the Court considered that this was only one of the several relevant factors which are to be considered in making a determination that the area was a \u201cdependent Indian community\u201d and thus within the definition of \u201cIndian Country.\u201d\nThis expansive interpretation of \u201cIndian Country\u201d is justified by legislative history as well as by case authority. The Tenth Circuit Court pointed this out in Tooisgah v. United States, 186 F.2d 93 (10th Cir. 1950) which construed the prior law relating to federal jurisdiction over the Major Crimes. The statute in effect at the time of the homicide for which Tooisgah was convicted provided for federal jurisdiction over homicides \u201cwithin the limits of any * * * reservation.\u201d\n\u201c * * * we are convinced that Congress did not intend to use the terms \u2018Indian Country\u2019 and \u2018within the limits of any . . . reservation\u2019 synonymously. * * * When the legislative scheme is considered in its historical setting, we think it of controlling significance that instead of employing the familiar term \u2018Indian Country\u2019, with its broad and flexible definition to delineate federal jurisdiction, Congress chose language carefully designed to recognize the sovereign jurisdiction of a state * * * In the reenactment of 548 as Section 1153, Title 18 U.S.C.A., Congress substituted \u2018Indian Country\u2019 for \u2018on (or) within any Indian reservation\u2019, thus conferring federal jurisdiction over the enumerated crimes when committed in Indian country as defined in Section 1151, of the Revised Criminal Code.\u201d 186 F.2d at 99.\nThe Tribal Council, in passing Resolution CMY-28-70, considered and stated its determination as to the nature of the area, the relationship of the inhabitants of the area to Indian tribes and to the federal government, and the established practice of the government agencies toward the area. The factors considered and the facts cited, such as the fact that over 60% of the land in the Eastern Navajo Nation boundaries is either owned by the Navajo Tribe or held in trust for Navajo Indian allottees, that the population of the Eastern Navajo Agency is predominantly Navajo, that the Navajo Tribe has for many years accepted responsibility for law enforcement in the Eastern Navajo Agency and has paid the full costs thereof without assistance from the State of New Mexico, are sufficient to sustain the determination that the Eastern Navajo Agency Land Management Districts 15, 16 and 19 with the exception of Gallup, New Mexico, are Navajo \u201cIndian Country.\u201d United States v. Martine, supra, 442 F.2d at 1023-1024.\nAn alternative basis on which the jurisdiction of the Courts of the Navajo Nation over Holyan may be sustained in 18 U.S. C.A. \u00a7 1152:\n\u201cThis section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in Indian country who has been punished by the local law of the tribe * * * \u201d (emphasis supplied)\nThe clauses are clearly disjunctive. So far as the Congress is concerned the Indian Courts may assert jurisdiction over any offense which involves an Indian complainant and an Indian defendant regardless of where the cause arose. The only limitations on such worldwide jurisdiction are imposed by the Due Process Clause incorporated into the 1968 Indian Civil Rights Act, the statutory jurisdictional limitations set forth by the Navajo Tribal Code Title 7, and Federal statutes withdrawing tribal jurisdiction in clearly specified circumstances.\nTherefore, even if it were determined that Yah Ta Hey Trading Post was not within \u201cIndian Country\u201d \u2014 an independent basis for jurisdiction exists.\nThis case is remanded for further proceedings not inconsistent with this opinion.\nYELLOWHAIR, Judge and BENNAL-LEY, Judge concur.\nSee Appendix on next page.\n. United States Department of the Interior\nOffice of the Solicitor\nWashington, D. O.\nSol... Indians\nMEMORANDUM June 8, 1959\nTo: Commissioner of Indian Affairs\nFrom: Assistant Solicitor, Indian Legal Activities\nSubject: Approval of Tribal Ordinances\nWith respect to the Navajo Tribal resolutions recently enacted involving tribal labor policy, I am aware of nothing in the law or regulations concerning Indian affairs which requires you to approve or disapprove such resolutions.\nIt has been emphasized that \u201cIndians are not wards of the Executive officers, but wards of the United States.\u201d (Ex Parte Bi-a-lil-le, 12 Ariz. 150, 100 P. 450 (1900) : see Fed. Indian Law, 1953, p. 563). Congress has not required the Secretary to approve tribal ordinances, nor has the President or the Secretary, under authority delegated by Section 2 of 25 U.S.C., seen fit to issue regulations referring to Secretarial consideration or approval of tribal ordinances. Many tribal constitutions adopted pursuant to Section 16 of the Indian Reorganization\nAct (25 U.S.C. 476, 48 Stat. 987), contain provisions implying Secretarial consideration of tribal ordinances, at least, in special cases. These provisions were inserted by the Tribe with the consent of the Secretary. This is within his authority, but it is not a Congressional mandate. The Navajos have no such written constitution.\nThe Secretary has a responsibility to encourage and assist Indian tribes under federal guardianship to carry out their tribal governmental functions and to conduct their tribal business in a legal and efficient manner. This task is obviously limited, however, by personnel and funds, as well as by the Congressional policy to encourage the Indians to assume continuously increasing responsibility and to develop self reliance.\nIn addition, certain resolutions may concern tribal action which by statute require Secretarial approval, such as encumbrances of tribal property. Here the Secretary must act because the statute requires approval of the specific act. The resolutions attached are not of this nature.\nSigned FRANKLIN C. SALISBURY\nAssistant Solicitor\nIndian Legal Activities\n. United States v. Martine, 442 F.2d 1022, 1023-1024 (10th Cir. 1971)\nThe trial court received evidence as to the nature of the area in question, the relationship of tlie inhabitants of the area to Indian tribes and to the federal government, and the established practice of government agencies towards the area. The testimony of enforcement officers and BIA officials supports the trial court\u2019s holding that the site of this incident was Indian Country.\nAj)pellant urges that such a holding implies that whenever a group of Indians is found, e. g., in Los Angeles, there is a dependent Indian community. This does not follow. The test we are applying here is not so simple. Only after considering all of the various factors we have noted, as well as any other relevant factors, can the trial court determine the status of a particular area. The mere presence of a group of Indians in a particular area would undoubtedly not suffice.", "type": "dissent", "author": "SUTIN, Judge KIRK, Chief Justice" } ], "attorneys": [ "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Joseph A. Roberts, District Public Defender, Santa Fe, for defendant-appellant.", "David L. Norvell, Atty. Gen., David McArthur, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "532 P.2d 896\nSTATE of New Mexico, Plaintiff-Appellee, v. John Paul CUTNOSE, Defendant-Appellant.\nNo. 1444.\nCourt of Appeals of New Mexico.\nOct. 30, 1974.\nRehearing Denied Nov. 19, 1974.\nCertiorari Denied Dec. 20, 1974.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Joseph A. Roberts, District Public Defender, Santa Fe, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., David McArthur, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0307-01", "first_page_order": 333, "last_page_order": 348 }