State v. Steven B.

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 10:40:22 2015.07.27

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMSC-020

Filing Date: June 25, 2015

Docket No. 34,122

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

STEVEN B.,

Child-Respondent.

CONSOLIDATED WITH

Docket No. 34,142

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

ERNIE BEGAYE,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Grant L. Foutz, District Judge

Hector H. Balderas, Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Petitioner

Jorge A. Alvarado, Chief Public Defender
B. Douglas Wood, III, Assistant Appellate Defender
Santa Fe, NM

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for Respondent Steven B.

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Respondent Ernie Begaye

Damon P. Martinez, U.S. Attorney, District of New Mexico
Jonathon M. Gerson, Assistant U.S. Attorney
Albuquerque, NM

for Amicus Curiae United States

The Navajo Nation Department of Justice
Harrison Tsosie, Attorney General
Paul W. Spruhan, Assistant Attorney General
Window Rock, AZ

for Amicus Curiae The Navajo Nation

OPINION

MAES, Justice.

{1} In this consolidated appeal, Respondents Steven B. and Ernie Begaye (Respondents),
are both enrolled members of the Navajo Nation who stand accused of offenses committed
on Parcel Three of Fort Wingate (Parcel Three). The question presented is whether Parcel
Three is a dependent Indian community—and therefore Indian country—under 18 U.S.C.
§ 1151(b) (2012) and Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520
(1998). If so, then the district court properly concluded that it lacked jurisdiction over
Respondents. See State v. Quintana, 2008-NMSC-012, ¶ 4, 143 N.M. 535, 178 P.3d 820 (“In
general, ‘a state does not have jurisdiction over crimes committed by an Indian in Indian
country.’” (quoting State v. Frank, 2002-NMSC-026, ¶ 12, 132 N.M. 544, 52 P.3d 404)). If
not, then we must reverse the district court and permit the State to proceed against
Respondents.

{2} We are not the first court to consider the Indian country status of Parcel Three. More
than a decade-and-a-half ago, the Court of Appeals in State v. Dick held that Parcel Three
is a dependent Indian community and ordered the dismissal of a DWI prosecution due to a
lack of state jurisdiction. See 1999-NMCA-062, ¶ 28, 127 N.M. 382, 981 P.2d 796, cert.
granted, 127 N.M. 391, 981 P.2d 1209 (1999), cert. quashed, 129 N.M. 208, 4 P.3d 36
(2000). Four years later, the U.S. District Court for the District of New Mexico reached the
opposite conclusion in United States v. M.C., holding that Parcel Three is not a dependent

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Indian community and dismissing an indictment for second-degree murder due to a lack of
federal jurisdiction. See 311 F. Supp. 2d 1281, 1282, 1297 (D.N.M. 2004).

{3} Faced with these contradictory rulings, the district court determined that Dick was
controlling and dismissed the proceedings against Respondents. The Court of Appeals
affirmed, and the State now urges this Court to overrule Dick and to reverse. We review the
controlling case law, the history, and the present circumstances of Parcel Three, and
conclude that Dick was wrongly decided and must be overruled. Parcel Three is not a
dependent Indian community, and the district court, therefore, has jurisdiction over
Respondents. The district court and the Court of Appeals having concluded otherwise, we
reverse.

I. FACTS AND PROCEDURAL HISTORY

{4} The facts leading to these consolidated appeals are not in dispute. Respondents are
enrolled members of the Navajo Nation who were charged with offenses which, if proven,
were committed on Parcel Three. Respondent Steven B., a child, is the subject of a petition
alleging that he committed the delinquent act of battery against a school official at Wingate
High School, contrary to NMSA 1978, Sections 30-3-9(E) (1989) and 32A-2-3(A) (2009).
Respondent Begaye was charged in an unrelated proceeding with 11 counts of criminal
sexual penetration of a child under 13 years of age, contrary to NMSA 1978, Section 30-9-
11(D)(1) (2009), and with 14 counts of criminal sexual contact of a minor on a child under
13 years of age, contrary to NMSA 1978, Section 30-9-13(B)(1) (2003). The criminal sexual
penetration and criminal sexual contact allegedly occurred in the staff housing area of the
Wingate school campus. The alleged victims in both proceedings were non-Indians.

{5} Respondents moved to dismiss the proceedings for lack of state jurisdiction, arguing
that Parcel Three is a dependent Indian community and therefore Indian country as held in
Dick. The State acknowledged that Dick was controlling, but argued that the courts should
revisit the status of Parcel Three in light of the federal district court’s contrary holding in
M.C. The parties entered into stipulated findings of fact and conclusions of law, including
the State’s concession that the district court was bound by stare decisis to follow Dick, and
after an evidentiary hearing, the district court granted Respondents’ motions to dismiss.

{6} The State appealed both rulings, arguing that Dick was wrongly decided and that it
should be overruled. The Court of Appeals considered the federal district court’s reasoning
in M.C. and declined to overrule Dick. See State v. Steven B., 2013-NMCA-078, ¶¶ 14-15,
306 P.3d 509. As a result, the Court affirmed the dismissals of the proceedings against
Respondents. See id. ¶ 16; State v. Begaye, No. 32,136, mem. op., ¶ 4 (N.M. Ct. App. Apr.
9, 2013) (non-precedential) (“Steven B. controls this appeal.”). We granted certiorari in both
cases and consolidated the proceedings to settle for our state courts the question of Parcel
Three’s status as a dependent Indian community.

II. STANDARD OF REVIEW

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{7} “Questions regarding subject matter jurisdiction ‘are questions of law which are
subject to de novo review.’” State v. Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M. 251, 208
P.3d 896 (quoting State v. Montoya, 2008-NMSC-043, ¶ 9, 144 N.M. 458, 188 P.3d 1209).
This Court defers to a district court’s factual determinations “if such findings are supported
by substantial evidence.” Frank, 2002-NMSC-026, ¶ 10 (internal quotation marks and
citation omitted). 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 Respondents as the prevailing parties. Id.

III. DISCUSSION

A. The issue before us is the type of “use” for which lands must be set aside by the
federal government to support a finding of a dependent Indian community

{8} Though the ultimate question in this appeal is whether Parcel Three is a dependent
Indian community, the parties and the district court below have narrowed the issue
significantly. To frame the precise question before us, we pause to review some basic
principles and to summarize the disagreement between Dick and M.C.

{9} We first explained in Blatchford v. Gonzales that a dependent Indian community is
one of three categories of land that Congress has defined as Indian country for purposes of
criminal jurisdiction. See 1983-NMSC-060, ¶¶ 7, 8, 100 N.M. 333, 670 P.2d 944 (citing 18
U.S.C. § 1151 (1976), which defines Indian country as Indian reservations, dependent Indian
communities, and Indian allotments). The phrase dependent Indian community originated
in federal common law and was adopted as part of the statutory definition of Indian country
in 1948 when Congress enacted § 1151. See Blatchford, 1983-NMSC-060, ¶ 9 (noting that
the dependent Indian community language in § 1151(b) stemmed from United States v.
Sandoval, 231 U.S. 28 (1913), and United States v. McGowan, 302 U.S. 535 (1938)).

{10} To determine if a particular tract of land is a dependent Indian community, we apply
the two-prong test articulated by the U.S. Supreme Court in Venetie: “for the land in question
to be a dependent Indian community, it must satisfy two requirements: (1) it ‘must have been
set aside by the Federal Government for the use of the Indians as Indian land[,]’ and (2) it
‘must be under federal superintendence.’” Quintana, 2008-NMSC-012, ¶ 4 (alteration in
original) (quoting Venetie, 522 U.S. at 527). If the land at issue fails to meet either prong,
it is not a dependent Indian community. See Quintana, 2008-NMSC-012, ¶ 8 (declining to
consider whether the land in question was under federal superintendence because the Court
had already concluded that it failed to meet the set-aside prong).

{11} The district court below, with the State’s concession, found that Parcel Three is
administered by the Bureau of Indian Affairs (BIA) and therefore meets Venetie’s federal

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superintendence prong. That conclusion is not challenged on appeal.1 Thus, to determine
whether Parcel Three is a dependent Indian community, we must answer only whether Parcel
Three satisfies the first prong of the Venetie test, whether it was “set aside by the Federal
Government for the use of the Indians as Indian land.” Venetie, 522 U.S. at 527.

{12} But our inquiry is narrower still. In our most recent opinion to address the set-aside
requirement, we explained that Venetie requires “some explicit action taken by Congress or
the Executive to create Indian country.” Quintana, 2008-NMSC-012, ¶ 6. Our cases have
shown that failing the first part of this requirement—the need for “some explicit action taken
by Congress or the Executive”—can be dispositive such that a tract is not a dependent Indian
community. See id. ¶¶ 2, 6 (holding that State Road 16, which separates the Santo Domingo
and Cochiti Pueblos and is located on land owned by the federal government and
administered by the U.S. Forest Service, is not a dependent Indian community because
“there is no evidence of any explicit congressional or executive action recognizing State
Road 16 as Indian country”); Frank, 2002-NMSC-026, ¶¶ 4, 11, 23 (holding that a state road
located on federally owned and administered land within a “checkerboard area” was not a
dependent Indian community because there was “‘no evidence . . . indicating that the area
in question was set aside by the Federal Government for the exclusive use of Indians’”
(alteration in original) (quoting the district court’s findings of fact and conclusions of law));
see also State v. Vandever, 2013-NMCA-002, ¶ 16, 292 P.3d 476 (holding that land owned
in fee simple by the Navajo Nation was not a dependent Indian community because “[t]here
was no evidence . . . to establish either that the federal government took some explicit action
to designate the land as Indian country or that the federal government transferred the
property to Indians for use by Indians”).

{13} Parcel Three does not suffer from this shortcoming. The district court found based
upon the parties’ stipulated facts that Parcel Three was transferred from the Department of
Defense to the Department of Interior “for use by the Bureau of Indian Affairs” in 1950 by
an act of Congress. We therefore assume for the purposes of these appeals that the transfer
of Parcel Three to the BIA was the type of “explicit action” that we have found lacking in
previous cases to meet Venetie’s set-aside requirement. See, e.g., Quintana, 2008-NMSC-
012, ¶ 6.

{14} Which brings us to the heart of the matter. The precise question before us is whether
the 1950 transfer of Parcel Three set the land aside “for the use of the Indians as Indian
land.” Venetie, 522 U.S. at 527 (emphasis added); see also Quintana, 2008-NMSC-012, ¶
6 (holding that a valid set-aside under Venetie requires “some explicit action taken by

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The United States, as amicus curiae, disputes that the BIA’s oversight of Parcel
Three is the type of federal superintendence necessary to meet the Venetie test. However, the
district court explicitly concluded that Parcel Three is under federal superintendence for the
purposes of Venetie, a conclusion that the State does not challenge on appeal. We therefore
do not reach the issue.

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Congress or the Executive to create Indian country” (emphasis added)). The parties disagree,
as did the courts in Dick and M.C., over the type of “use” that is sufficient to meet the set-
aside requirement. The State argues, consistent with M.C., that a dependent Indian
community must be located on lands set aside for “permanent inhabitation [by] a distinct
group of Indians.” See 311 F. Supp. 2d at 1295 (“[T]here has never been a finding of a
dependent Indian community unless the community at issue was located on tribal lands or
land held in trust for Native Americans.”). Respondents, by contrast, argue that Dick
correctly held that inhabitation, though sufficient to meet the set-aside requirement, is not
necessary and that the requirement is met when lands are set aside simply for “Indian use.”
See 1999-NMCA-062, ¶ 21 (“Although the cases relied upon by Venetie and Venetie itself
address lands that were allotments, villages, reservations, or otherwise home to Indians, there
is no indication that the set-aside requirement is so limited.”).

{15} We first undertake our own analysis of the origin and development of the term
dependent Indian community to determine the type of “use” necessary for a finding of Indian
country. We then turn to the particular circumstances of Parcel Three to determine if it was
set aside “for the use of the Indians as Indian land.” Venetie, 522 U.S. at 527.

B. The cases culminating in Venetie limit Indian country to land set aside for “use”
as a long-term settlement by an Indian community

{16} The term dependent Indian community originated in Sandoval, which was one of a
trio of U.S. Supreme Court opinions in the early twentieth century that refined the federal
definition of Indian country. See Sandoval, 231 U.S. 28; see also United States v. Pelican,
232 U.S. 442 (1914); Donnelly v. United States, 228 U.S. 243 (1913). Those cases,
beginning with Donnelly and followed by McGowan and Venetie, provide critical factual and
legal context for the question presented in this appeal. We therefore review the Donnelly line
of cases before turning to our analysis of Dick and the status of Parcel Three.

1. The Donnelly line of cases informs the meaning of Indian country under
18 U.S.C. § 1151

{17} Before Congress enacted § 1151 in 1948, it had last defined Indian country in the
1834 Indian Trade and Intercourse Act as follows:

That all that part of the United States west of the Mississippi, and not within
the states of Missouri and Louisiana, or the territory of Arkansas, and, also,
that part of the United States east of the Mississippi river, and not within any
state to which the Indian title has not been extinguished, for purposes of this
act, be taken and deemed to be the Indian country.

Act of June 30, 1834, ch. 161, § 1, 4 Stat. 729. This geographical definition soon became
unworkable with the nation’s rapid expansion westward following the acquisition of
California and other western territories as a result of the Mexican-American War. See Joseph

6
D. Matal, A Revisionist History of Indian Country, 14 Alaska L. Rev. 283, 294 (1997) (“The
Mexican-American War of 1846-48 forced a change in thinking.”). As the United States
embraced its “manifest destiny” and encouraged settlement from coast to coast, the federal
government began to relocate Indians onto tribal reservations within organized states and
territories. See, e.g., Organized Vill. of Kake v. Egan, 369 U.S. 60, 72 (1962) (“As the United
States spread westward, it became evident that there was no place where the Indians could
be forever isolated.”). Having become obsolete, the 1834 definition of Indian country was
effectively repealed when it was omitted from the U.S. Code in 1874. See 18 Stat. 1091, tit.
74 (1874) (deleting the definition of Indian country in Rev. Stat. § 5596 (1873)); see also
Clairmont v. United States, 225 U.S. 551, 557 (1912) (explaining that the 1834 definition
of Indian country “was not re-enacted in the Revised Statutes, though other parts of the
statute were, and hence was repealed by § 5596 of the revision”).

{18} With no statutory definition of Indian country, the courts took up the task of
formulating a common law definition in light of “the changes which have taken place in our
situation, with a view of determining from time to time what must be regarded as Indian
country, where it is spoken of in the statutes.” Ex parte Kan-gi-shun-ca (otherwise known
as Crow Dog), 109 U.S. 556, 561 (1883). In an early effort, the Supreme Court characterized
Indian country as “all lands ‘to which the Indian title has not been extinguished,’ and which
were either outside ‘the exterior geographical limits of a state’ or ‘excepted from its
jurisdiction . . . at the time of its admission.’” Matal, supra, at 301 (omission in original)
(quoting Ex parte Kan-gi-shun-ca, 109 U.S. at 561). That definition, based on aboriginal
title, would stand more-or-less undisturbed until the Court decided Donnelly, Pelican, and
Sandoval.

{19} In Donnelly, the Supreme Court considered whether to reverse a federal conviction
for the murder of an Indian within the boundaries of an Indian reservation in northern
California. See 228 U.S. at 252. One of the arguments for reversal was that the reservation
was not Indian country because it was located on lands that were “set apart as an Indian
reservation out of the public domain, and not previously occupied by the Indians.” See id.
at 268. The Court rejected that argument, reasoning that Indian country was no longer
limited to a tribe’s aboriginal lands:

“[T]he changes which have taken place in our situation” are so numerous and
so material, that the term [“Indian country”] cannot now be confined to land
formerly held by the Indians, and to which their title remains unextinguished.
And, in our judgment, nothing can more appropriately be deemed “Indian
country” . . . than a tract of land that, being a part of the public domain, is
lawfully set apart as an Indian reservation.

Id. at 269 (quoting Clairmont, 225 U.S. at 557). Donnelly, therefore, clarified that Indian
country includes land set aside as a reservation, even when the land was not “previously
occupied by the Indians.” See Id. at 268-69.

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{20} In Pelican, the Supreme Court considered whether an 80-acre tract of land, which
previously had been part of the Colville Reservation, remained Indian country after the land
had been allotted to “Agnes, an Indian,” and held in trust by the United States for Agnes for
a period of 25 years. See 232 U.S. at 444-47. The lower court had concluded that the
allotment was not Indian country and, therefore, had dismissed a pair of federal indictments
for an alleged murder that had occurred on the allotment. See id. at 444-45. The Supreme
Court reasoned that the allotment continued to be Indian country even after the original
reservation was diminished because the lands “still retain during the trust period a
distinctively Indian character, being devoted to Indian occupancy under the limitations
imposed by Federal legislation.” Id. at 449. Pelican thus clarified that Indian country
includes, in addition to reservations, land allotted for “Indian occupancy” and held in trust
by the federal government. See id. at 449-51 (“[M]eanwhile, [during the trust period,] the
lands remained Indian lands, set apart for Indians under governmental care . . . .”).

{21} In between Donnelly and Pelican, the Supreme Court in Sandoval considered a third
category of lands, Pueblo lands, which were neither a formal reservation nor an allotment.
See Sandoval, 231 U.S. at 38-39 (describing the lands in question as “held in communal, fee
simple ownership under grants from the King of Spain, made during the Spanish
sovereignty, and confirmed by Congress since the acquisition of [the New Mexico] territory
by the United States.”). The lower court had dismissed an indictment for “introducing
intoxicating liquor into the Indian country” after concluding that a pair of statutes that
defined Pueblo lands as Indian country were an invalid exercise of Congressional authority.
See id. at 36-37. The Supreme Court first concluded that Congress not only has plenary
authority over “commerce with the Indian tribes,” but also has “the power and the duty of
exercising a fostering care and protection over all dependent Indian communities within its
borders.” Id. at 45-46 (emphasis added). The Court then concluded that the “Pueblos of New
Mexico” are such dependent communities, “entitled to [the federal government’s] aid and
protection, like other Indian tribes.” Id. at 47. As a result of that “guardianship,” the Court
held that the lands “owned or occupied by the Pueblo Indians” were Indian country,
regardless of being owned in fee simple by “the Indians of each [P]ueblo.” Id. at 37, 48.

{22} Thus, to the extent that Sandoval used the term dependent Indian community to
refine the common law definition of Indian country, it is more accurate to say, not that a
dependent Indian community itself is Indian country, but that the land “owned or occupied”
by a dependent Indian community is Indian country. See United States v. Chavez, 290 U.S.
357, 362 (1933) (“In United States v. Sandoval, this court, after full examination of the
subject, held that the status of the Indians of the several pueblos in New Mexico is that of
dependent Indian tribes under the guardianship of the United States, and that by reason of
this status they and their lands are subject to the legislation of Congress enacted for the
protection of tribal Indians and their property.” (citation omitted)).

{23} Some 25 years after Sandoval, the Supreme Court revisited its definition of Indian
country in McGowan. The McGowan court considered whether the Reno Indian Colony,
“composed of several hundred Indians residing on a tract of 28.38 acres of land owned by

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the United States,” was Indian country. 302 U.S. at 537. Noting that Congress’s intent in
creating the colony was “to provide lands for needy Indians scattered over the State of
Nevada, and to equip and supervise these Indians in establishing a permanent settlement,”
the Court reasoned that Congress had “afforded [Indians in the colony] the same protection
by the government as that given Indians in other settlements known as ‘reservations.’” Id.
at 537-38. The Court, therefore, held that, whether designated a reservation or a colony, the
tract was Indian country because the colony had been “validly set apart for the use of the
Indians”; was “under the superintendence of the government”; and was located on land that
was titled in the government and that the government permitted the Indians to occupy. Id.
at 539. McGowan therefore signaled that lands set aside by the federal government for
settlement by a dependent Indian community—regardless of the label attributed to such
lands or to the community itself—are Indian country.

{24} With these cases as a backdrop, Congress in 1948 set forth the current definition of
Indian country, recognizing the three categories of lands at issue in Donnelly, Pelican,
Sandoval, and McGowan:

[T]he term “Indian country,” as used in this chapter, means (a) all land within
the limits of any Indian reservation under the jurisdiction of the United
States Government, notwithstanding the issuance of any patent, and,
including rights-of-way running through the reservation, (b) all dependent
Indian communities within the borders of the United States whether within
the original or subsequently acquired territory thereof, and whether within or
without the limits of a state, and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way running through
the same.

18 U.S.C. § 1151 (1948) (emphasis added). The Donnelly line of cases therefore provides
context for courts construing the statutory definition of Indian country, including whether
land is a dependent Indian community. See 18 U.S.C. § 1151 Historical and Statutory Notes
(explaining that the definition of Indian country “is based on [the] latest construction of the
term by the United States Supreme Court in U.S. v. McGowan, following U.S. v. Sandoval”
and that “Indian allotments were included in the definition on authority of the case of U.S.
v. Pelican” (citations omitted)).

{25} And it was to these cases that the U.S. Supreme Court looked in Venetie, 50 years
after Congress enacted § 1151, when the Court first interpreted the phrase dependent Indian
community as used in the statute. In Venetie, the Court considered whether 1.8 million acres
of land owned in fee simple by the Native Village of Venetie Tribal Government was a
dependent Indian community. See 522 U.S. at 523-24. The land had been a reservation until
Congress revoked the reservation status of nearly all Alaskan reservations and extinguished
aboriginal claims to all Alaskan lands in exchange for the transfer of nearly 1 billion dollars
and 44 million acres of land to a collection of private corporations owned exclusively by
Alaska Natives. See id. at 524 (discussing the Alaska Native Claims Settlement Act

9
(ANCSA), 43 U.S.C. § 1601 to -1629h, 85 Stat. 688 (1971)). The Ninth Circuit had applied
a six-factor balancing test and concluded that the land was a dependent Indian community
under § 1151. See Venetie, 522 U.S. at 525-26.

{26} Reversing, the Supreme Court disapproved of the Ninth Circuit’s multi-factor test
and instead identified from its case law two irreducible requirements for determining
whether lands are a dependent Indian community: “first, they must have been set aside by
the Federal Government for the use of the Indians as Indian land; second, they must be under
federal superintendence.” 522 U.S. at 527. The Court drew these requirements from the
Donnelly line of cases, reasoning that “in enacting § 1151, Congress codified these two
requirements, which previously we had held necessary for a finding of ‘Indian country’
generally.” Venetie, 522 U.S. at 527. It further explained the requirements’ significance as
they relate to a dependent Indian community in particular:

The federal set-aside requirement ensures that the land in question is
occupied by an “Indian community”; the federal superintendence
requirement guarantees that the Indian community is sufficiently
“dependent” on the Federal Government that the Federal Government and the
Indians involved, rather than the States, are to exercise primary jurisdiction
over the land in question.

Id. at 531 (footnote omitted).

{27} The Supreme Court then applied its two-factor test to the lands owned by the Village
of Venetie. With respect to the set-aside prong, the Court held that the revocation of the
Venetie Reservation and subsequent transfer of the lands in fee simple to the privately
owned corporations, without restraints on alienation or use restrictions, precluded a finding
that the lands had been set aside as Indian lands. See id. at 532-33. The Court then concluded
that the lands failed the superintendence prong because Congress explicitly intended to
“avoid a lengthy wardship or trusteeship” and had left in place only minimal protections for
the lands transferred to the Alaska Natives. Id. at 533 (internal quotation marks and citation
omitted) (noting that “the land is exempt from adverse possession claims, real property taxes,
and certain judgments as long as it has not been sold, leased, or developed”). Because the
land failed both requirements, the Court held that it was not a dependent Indian community.
See id. at 532.

{28} Thus, Venetie looked past the labels in § 1151 and set forth a functional definition
of Indian country, including dependent Indian communities. See also Felix S. Cohen, Felix
S. Cohen’s Handbook of Federal Indian Law 1982 Edition 39 (Rennard Stickland et al. eds.,
1982) (“Read together, 18 U.S.C. §§ 1151(a) and (b) employ a functional definition focusing
on the federal purpose in recognizing or establishing a reasonably distinct location for the
residence of tribal Indians under federal protection.”). Whether termed a reservation,
community, Pueblo, allotment, or colony, Venetie held that Indian country is limited to lands
that meet its two-part test, as informed by the opinions upon which Venetie relied. See 522

10
U.S. at 530 (“Section 1151 does not purport to alter this definition of Indian country, but
merely lists the three different categories of Indian country mentioned in our prior
cases . . . .”). With this context in mind, we turn to the question of the “use” necessary to
support a finding of a dependent Indian community.

2. Dick’s interpretation of the set-aside prong is inconsistent with
precedent and is overruled

{29} The Court of Appeals in Dick considered the Donnelly line of cases and concluded
that, “[a]lthough the cases relied upon by Venetie and Venetie itself address lands that were
allotments, villages, reservations, or otherwise home to Indians, there is no indication that
the set-aside requirement is so limited.” 1999-NMCA-062, ¶ 21. Dick also rejected the
argument—similar to the State’s argument in the present appeals—that Venetie requires the
land to be “set aside for an Indian residential community or settlement.” See 1999-NMCA-
062, ¶¶ 20-21. Instead, the Court held that Venetie requires only that the land be “set aside
for Indian use.” Dick, 1999-NMCA-062, ¶ 21. The Court reasoned that, because McGowan
and Pelican had both held that lands other than reservations were Indian country, the U.S.
Supreme Court “could not have meant that land had to be set-aside as reservation-type land.
Otherwise, there would have been no need for the passage of Section 1151, which separately
discusses reservations, allotments, and dependent Indian communities.” Dick, 1999-NMCA-
062, ¶ 22.

{30} We view this as a misreading of Venetie and the cases leading to the enactment of
§ 1151. Based on our review, the terms reservation, dependent Indian community, and
allotment were born from an era in which criminal jurisdiction over crimes committed in
Indian country was being tested by defendants on technical, and even semantic, grounds. Cf.
State v. Frank, 2001-NMCA-026, ¶ 35, 130 N.M. 306, 24 P.3d 338 (Bosson, C.J.,
dissenting) (“[W]e should be mindful that the provocateur of this conflict is not the tribe, but
a skillful defense attorney hoping to avoid prosecution by playing off the jurisdictional
aspirations of each against the other.”), rev’d, 2002-NMSC-026, 132 N.M. 544, 52 P.3d 404.
Without a then-current definition of Indian country, defendants made a series of arguments
premised on the idea that the federal government lacked jurisdiction over lands that deviated
from historical definitions of Indian country.

{31} In dispelling these arguments, the U.S. Supreme Court first concluded,“not
surprisingly,” that Indian country includes lands set aside as reservations, even when they
were not the ancestral lands of a particular Tribe. See Venetie, 522 U.S. at 528 n.3 (citing
Donnelly, 228 U.S. at 269). The Court then clarified that Indian country includes lands,
though not formally set aside as a reservation, that are set aside for ownership and
occupation by a dependent Indian community—in that case, the Santa Clara Pueblo. See
Sandoval, 231 U.S. at 36. Next, the Court held that Indian country encompasses land that
previously had been part of a reservation and that was later allotted to a particular Indian for
“Indian occupancy,” at least during the period that the land was held in trust by the federal
government. See Pelican, 232 U.S. at 449-50. And finally, the Court held that an Indian

11
“colony,” regardless of its label, is Indian country because it meets the requirements of
Indian country generally, including that it was set aside for settlement by a dependent Indian
community. See McGowan, 302 U.S. at 539.

{32} After Congress codified these three categories of Indian country in § 1151, Venetie
clarified that they are merely variations on the functional definition of Indian country that
the Court had drawn from its earlier cases:

In each of these cases . . . we relied upon a finding of both a federal
set-aside and federal superintendence in concluding that the Indian lands in
question constituted Indian country and that it was permissible for the
Federal Government to exercise jurisdiction over them. Section 1151 does
not purport to alter this definition of Indian country, but merely lists the three
different categories of Indian country mentioned in our prior cases: Indian
reservations, see Donnelly v. United States; dependent Indian communities,
see United States v. McGowan; United States v. Sandoval; and allotments,
see United States v. Pelican.

See 522 U.S. at 530 (citations omitted).

{33} Thus, while the three categories listed in § 1151 may have different labels and
particular features of ownership, we disagree with the Court of Appeals that Indian country
is not limited to lands that serve as “home to Indians.” Dick, 1999-NMCA-062, ¶ 21. To the
contrary, a unifying feature of the lands from which those categories were drawn is that they
were set aside for a singular “use”: the long-term settlement of an Indian community. See
McGowan, 302 U.S. at 537 (noting that Congress’s intent in creating the Reno Indian colony
was “to provide lands for needy Indians scattered over the State of Nevada, and to equip and
supervise these Indians in establishing a permanent settlement” (emphasis added));
Sandoval, 231 U.S. at 39 (holding that Pueblo lands were Indian country when Congress had
confirmed the land grants made to the Pueblo Indians by the King of Spain and that adjacent
lands had been “reserved by Executive orders for the use and occupancy of the Indians”
(emphasis added)); see also Pelican, 232 U.S. at 449 (holding that the allotted lands “still
retain during the trust period a distinctively Indian character, being devoted to Indian
occupancy under the limitations imposed by Federal legislation” (emphasis added));
Donnelly, 228 U.S. at 255 (noting that Congress had set the lands “for the purposes of Indian
Reservations, which shall be of suitable extent for the accommodation of the Indians of said
state” (quoting Act of April 8, 1864, § 2, 13 Stat. at L. 39, chap. 48)); cf. Venetie, 522 U.S.
at 532-33 (holding that the lands had not been set aside for use as Indian lands when the
federal government had transferred the lands to Native-owned corporations without restraints
on alienation or use restrictions).

{34} In holding that Venetie requires that lands be set aside merely for “Indian use,” the
Court of Appeals in Dick strayed beyond the factual underpinnings that gave rise to § 1151.
We decline to do the same, particularly when neither the parties nor the amici curiae in these

12
proceedings have cited another instance of a court taking a similarly expansive view of the
set-aside requirement. We therefore conclude that the “use” envisioned by Congress when
it enacted § 1151(b) was the sort of occupancy associated with long-term settlement by an
Indian community.

{35} We note that the outcomes in our previous cases applying Venetie are consistent with
our conclusion. See Quintana, 2008-NMSC-012, ¶¶ 2, 6-7 (holding that a state road
separating the Santo Domingo and Cochiti Pueblos and located on land owned by the federal
government and administered by the U.S. Forest Service did not meet Venetie’s set-aside
requirement); State v. Romero, 2006-NMSC-039, ¶¶ 2-3, 15, 140 N.M. 299, 142 P.3d 887
(holding that privately owned fee lands within the boundaries of the Taos and Pojoaque
Pueblos were properly set aside under Venetie “by congressional acts recognizing pueblo
land”); Frank, 2002-NMSC-026, ¶¶ 4, 11, 23 (holding that a state road located on federally
owned and administered land within a “checkerboard area” was not a dependent Indian
community because there was “‘no evidence . . . indicating that the area in question was set
aside by the Federal Government for the exclusive use of Indians’” (quoting the district
court’s findings of fact and conclusions of law)); see also Vandever, 2013-NMCA-002, ¶ 16
(holding that land owned in fee simple by the Navajo Nation was not a dependent Indian
community because “[t]here was no evidence presented to the district court to establish
either that the federal government took some explicit action to designate the land as Indian
country or that the federal government transferred the property to Indians for use by
Indians”).

{36} Thus, Dick is an outlier, and we therefore overrule its conclusion that transferring
land to the BIA merely for “Indian use” satisfies Venetie’s set-aside requirement. We also
modify any previous cases that have restated or approved of Dick’s holding in their
discussion of Venetie’s set-aside requirement. See, e.g., Quintana, 2008-NMSC-012, ¶ 6
(relying on Dick in dicta for the premise that transferring land for Indian use or to the BIA
is sufficient to meet the set-aside prong of Venetie). Having identified the “Indian use”
contemplated by Venetie, we now must decide if Parcel Three was set aside for long-term
settlement by an Indian community.

C. Congress set aside Parcel Three for use by the BIA, not for long-term settlement
by an Indian community

{37} The parties agree that the facts related in Dick and in M.C. about Fort Wingate and
Parcel Three remain largely unchanged. Although we are primarily concerned with the
original purpose for which the land was set aside, we recount the land’s history and present
circumstances in some detail to illustrate the interests of the parties and amici curiae
involved in these proceedings.

{38} Fort Wingate is located on land that was historically inhabited by the Navajo people,
though not exclusively. The Treaty with the Navajo of 1868 extinguished the “Navajo
tribe’s” aboriginal title to certain lands (including the land that would later become Fort

13
Wingate) and set aside land to be occupied exclusively by the Navajo. See Treaty with the
Navajo, 1868, 15 Stat. 667 (1868). In 1870 and 1881, the federal government designated 130
square miles of the formerly Navajo lands as a military reservation, now referred to as Fort
Wingate. See Dick, 1999-NMCA-062, ¶ 3.

{39} Today, Fort Wingate is split into four parcels, each of which is administered
separately by the federal government. Parcel One, an area referred to as the Iyanbito, is held
in trust by the federal government for the Navajo Nation and administered by the BIA. See
M.C., 311 F. Supp. 2d at 1282. Parcel Two remains the Fort Wingate military reservation,
under the control of the Department of Defense. Parcel Three, the subject of this appeal, is
administered by the BIA. And Parcel Four is under the jurisdiction of the U.S. Forest
Service, having been transferred to the Cibola National Forest by an Executive Order dated
1925.

{40} Congress created Parcel Three in 1950 when it enacted Public Law 567, which
transferred 13,150 acres of Fort Wingate “to the Department of the Interior, for use by the
Bureau of Indian Affairs.” Act of June 20, 1950, Pub. L. No. 81-567, 64 Stat. 248. Public
Law 567 provides,

That the Secretary of the Army is hereby authorized and directed to transfer
to the Department of the Interior, for use by the Bureau of Indian Affairs, that
portion of the Fort Wingate Military Reservation, New Mexico, comprising
approximately thirteen thousand one hundred and fifty acres, heretofore
determined to be surplus to the requirements of the Department of the Army.
Title to the land so transferred shall remain in the United States for the use
of Bureau of Indian Affairs.

{41} The BIA continues to retain authority over the lands set aside in Public Law 567 with
two exceptions. First, Congress transferred nearly 7,000 acres of Parcel Three to the Forest
Service in 1972. See Act of Oct. 6, 1972, Pub. L. No. 92-465, 86 Stat. 777, 779. And second,
the BIA sold 16 acres of Parcel Three in 1990 to Paul Merrill (the Merrill property), a private
individual, after determining that the land exceeded its needs. The Merrill property currently
is the site of a trailer park, apartments, a restaurant, a pawn shop/trading post, a convenience
store, a gas station, and a post office that are used by the general public and by local Indian
residents.

{42} Parcel Three is administered by the BIA for the primary purpose of educating Indian
children. See Dick, 1999-NMCA-062, ¶14. The BIA operates two schools on Parcel Three,
Wingate Elementary School and Wingate High School (the Wingate Schools). Enrollment
at the Wingate Schools is not limited exclusively to Indian children; qualified non-Indian
children are permitted to attend. However, at the time of the stipulated facts in the cases
below, all of the students who attended the Wingate Schools were Indian, and the vast
majority were Navajo.

14
{43} Other than the housing on the privately owned Merrill property, Parcel Three offers
no living arrangements or establishments besides those provided by the BIA for student
dormitories and school-employee family housing. Residence on Parcel Three is conditioned
entirely upon an educational or employment relationship with the schools. Approximately
75% of the students who attend Wingate High School live on campus, and 50% of the
students who attend Wingate Elementary School live on campus. Approximately 85% of the
employees who live on campus are Indian.

{44} Administration and oversight of the Wingate Schools is a shared enterprise between
the Navajo Nation, the BIA, and the State. The schools’ Board is elected at Navajo Nation
elections and determines school policies, the curriculum, and the budget; the BIA has the
power to overturn the Board’s decisions and employs the schools’ principals; and the schools
comply with all New Mexico state education requirements, including requirements for
teacher licensure.

{45} Similarly, the Navajo Nation and various levels of state, county, and city
government collaborate to provide emergency and other support services to the residents of
Parcel Three. Emergency telephone calls requesting police, fire, or medical services are
directed to and received by McKinley County Metro Dispatch, an organization funded by
McKinley County and the City of Gallup. Emergency law enforcement services are provided
by the Navajo Nation, the McKinley County Sheriff’s Office, and the New Mexico State
Police. All utilities, including telephone services, electricity services, natural gas services,
water and sewer services, and waste disposal services, are provided by non-Indian entities.
Thus, Parcel Three is the subject of a cooperative approach between federal, state, local, and
Navajo governments to provide for the safety and welfare of the people who are permitted
by the BIA to reside at the Wingate Schools.

{46} To answer the question before us, however, our primary focus is on Public Law 567,
which offers the clearest indication of Congress’s intended use for Parcel Three. As
previously noted, Public Law 567 transferred Parcel Three “to the Department of the
Interior, for use by the Bureau of Indian Affairs.” 64 Stat. 248. This language, enacted just
two years after Congress adopted the definition of Indian country in § 1151, does not purport
to create Indian country or refer to any of the three categories of Indian country listed in §
1151. Nor does Public Law 567 invoke any other badge of Indian country from the Donnelly
line of cases, such as transferring title of Parcel Three to a group or community of Indians,
see Sandoval, 231 U.S. at 39, or establishing a trust relationship with or providing for the
protection of an Indian Tribe, Indian individual, or other Indian community that owns or
occupies the land, see id.; McGowan, 302 U.S. at 537; Pelican, 232 U.S. at 447. Public Law
567 provides only that “[t]itle to the land so transferred shall remain in the United States for
use of the Bureau of Indian Affairs.” 64 Stat. 248 (emphasis added).

{47} In short, the language of Public Law 567 shows that Congress did not set aside Parcel
Three for long-term settlement by an Indian community. By transferring the land simply for
“use of the Bureau of Indian Affairs,” Congress gave the BIA broad discretion over how to

15
use the land. Such discretion—which apparently extends to transferring a significant portion
of Parcel Three to another agency and even to selling part of it to a private individual—is
antithetical to long-term settlement by an Indian community and therefore is inconsistent
with an intent to create Indian country. To conclude otherwise, we would have to hold that
Congress took the unprecedented step of implicitly delegating authority to the BIA to create
and destroy Indian country on a whim, based on the use that the BIA chooses for Parcel
Three at any particular time. Unlike other laws that explicitly delegate authority to create
Indian country, the language of Public Law 567 does not support such a conclusion.
Compare 64 Stat. 248, with Donnelly, 228 U.S. at 255-56 (noting that Congress explicitly
“confer[red] a discretionary power” on the Executive to set aside lands in California for
Indian reservations and to enlarge the boundaries as necessary “for the best interests of the
Indians”).

{48} And even assuming, arguendo, that Congress intended to give the BIA implicit
authority to create Indian country, the BIA’s actual use of Parcel Three as the site of the
Wingate Schools is inconsistent with long-term settlement by an Indian community. Unlike
the Santa Clara Pueblo Indians in Sandoval and the inhabitants of the Reno Indian Colony
in McGowan, no community of Indians, including students or staff of the Wingate Schools,
has a right to dwell on or use Parcel Three as the community’s homeland, and no Indian
community has legal or equitable title to the land in question. Instead, any right to reside on
Parcel Three is conditioned upon attendance at or employment with the Wingate Schools and
terminates with the end of a student’s or employee’s tenure.

{49} In the end, the BIA has exercised its discretion under Public Law 567 to use Parcel
Three to operate the Wingate Schools, which are federal facilities supported by federal funds
that provide a specific, non-exclusive service to Indian children. The provision of such a
service, discretionary or otherwise, does not show a congressional designation of federal
property as Indian land. See Venetie, 522 U.S. at 534 (“Our Indian country precedents . . . do
not suggest that the mere provision of ‘desperately needed* social programs can support a
finding of Indian country.”); see also Quintana, 2008-NMSC-012, ¶ 7 (“[E]vidence of the
practical use of property has never been held to be sufficient to satisfy the set-aside
requirement.”). M.C. summed up this point well:

BIA schools exist both within and without the boundaries of Indian
country. Testimony presented at the hearing established that the purpose of
the [Wingate] School and its means of administration are identical to that of
all BIA schools, regardless of whether they are located within or without the
boundaries of Indian country. There is no evidence that, in any other
instance, the presence of a BIA school alone has changed the status of the
land on which it is situated. The fact that the School is a BIA school whose
purpose is to provide an education to Native American children thus cannot
be the defining feature to establish a dependent Indian community on Parcel
Three. A holding to the contrary would be an improper expansion of both the
language and the historical context of the term dependent Indian community.

16
311 F. Supp. 2d at 1295-96. We agree. The BIA’s operation of a school—even a boarding
school on federally owned land—does not by itself create a dependent Indian community.
The land must have been set aside for long-term settlement by an Indian community.
Because Parcel Three was not set aside for that purpose, it is not a dependent Indian
community.

{50} Respondents argue that C.M.G. v. State supports Dick’s conclusion that Parcel Three
is a dependent Indian community. 1979 OK CR 39, ¶ 21, 594 P.2d 798, cert. denied, 444
U.S. 992 (1979). In C.M.G., the Oklahoma Court of Criminal Appeals held that a BIA-
operated school, the Chilocco Indian School, was a dependent Indian community. See id. ¶¶
15-22. Though the result in C.M.G. favors Respondents, we agree with the State that the
reasoning in that case actually supports our conclusion that Parcel Three is not a dependent
Indian community.

{51} As Respondents correctly observe, C.M.G. noted many features of the Chilocco
Indian School that parallel the Wingate Schools in this appeal. See id. ¶ 15 (noting that the
land is owned by the United States, that all of the students and most of the staff are Indians,
and that salaries and tuition are funded by the BIA). However, the Oklahoma Court was clear
that it based its holding on language in the Executive Order setting aside the land for the
Chilocco Indian School, which provided as follows:

[T]he following-described tracts of country in the Indian Territory . . . be, and
the same are hereby, reserved and set apart for the settlement of such friendly
Indians belonging within the Indian Territory as have been or who may
hereafter be educated at the Chilocco Indian Industrial School in said
Territory.

Id. ¶ 5 (alteration in original) (quoting 1 Charles J. Kappler, Indian Affairs: Laws and
Treaties 842 (2d ed. 1904)). Based on this language, the court held that the school was a
dependent Indian community because it was on “a tract of land which was specifically
reserved for the settlement of friendly Indians at the time the Cherokee outlet was ceded to
the United States.” Id. ¶ 21 (emphasis added). This reasoning comports with our conclusion
that a dependent Indian community must be located on lands set aside for the long-term
settlement of an Indian community. And unlike the Executive Order in C.M.G., Public Law
567 does not reserve or set aside Parcel Three for “settlement” by Indians. We therefore are
not troubled by the result in C.M.G.

{52} We do not mean to diminish the practical reality that the Wingate Schools are indeed
a close-knit community, in the commonly understood meaning of the word. As Respondents
cogently argue, the Wingate Schools are home to hundreds of Indian children and school
employees, and the schools serve as a focal point and gathering place for many aspects of
the lives of students, staff, and their families who live on Parcel Three and in the surrounding
areas. Again, however, our inquiry is limited to whether Parcel Three was set aside for long-

17
term settlement by an Indian community—not to whether the BIA, in its discretion, has
elected to use the land in a manner that incidentally fosters the development of a community
of students, staff, and family members for as long as the BIA permits them to be associated
with the schools.

{53} As a final matter, the United States as amicus curiae asserts that there is an
“intolerable jurisdictional void” on Parcel Three for law enforcement purposes because of
the conflicting rulings in Dick and M.C. The Navajo Nation, also as amicus curiae, disagrees,
arguing that it retains full authority to prosecute all crimes committed by Indians, and that
the State may prosecute crimes by non-Indians against other non-Indians and victimless
crimes by non-Indians. The Navajo Nation also contends that it has a strong interest in the
welfare of the children on the school property.

{54} Whether the United States or the Navajo Nation has jurisdiction over Parcel Three
is not before us, and we therefore take no position on either issue. We note, however, that
the divergent holdings in the past among the state and federal courts have created confusion
and complicated the jurisdictional framework over an area in which hundreds of children,
school employees, and their families live and learn. We are mindful of the delicate balance
between the various sovereigns and local governments involved, and we are hopeful that
they will continue to work together to ensure that Parcel Three remains a safe and healthy
environment for all who reside there. We trust that our holding will provide some much-
needed clarity, at least with respect to the State’s jurisdiction over offenses committed on
Parcel Three.

CONCLUSION

{55} We overrule State v. Dick and hold that Parcel Three is not a dependent Indian
community under § 1151. We therefore reverse the district court and the Court of Appeals
in both of the cases before us and remand for further proceedings in the district court.

{56} IT IS SO ORDERED.

____________________________________
PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________

18
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

19