(specially concurring).
{28} I agree with the majority that the State has no jurisdiction in these cases. In each case the accused is an enrolled member of the pueblo, which satisfies the definition of Indian within the Major Crimes Act, 18 U.S.C. § 1153, and the crimes occurred within the exterior boundaries of the pueblo. I share the view that “Congress and the United States Supreme Court have established that pueblo lands are Indian country.” Maj. Op. ¶ 13. The United States Supreme Court has clearly stated that pueblos are dependent Indian communities:
As before indicated, by an uniform course of action beginning as early as 1854 and continued up to the present time, the legislative and executive branches of the government have regarded and treated the Pueblos of New Mexico as dependent communities entitled to its aid and protection, like other Indian tribes, and ... this assertion of guardianship over them cannot be said to be arbitrary, but must be regarded as both authorized and controlling.
United States v. Sandoval, 231 U.S. 28, 47, 34 S.Ct. 1, 58 L.Ed. 107 (1913). Therefore, the land within the exterior boundaries of New Mexico pueblos fits squarely within the definition of dependent Indian community as codified in 18 U.S.C. § 1151(b).
{29} I write separately because I respectfully believe the discussion of Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998), goes beyond what is necessary for resolution of this case. Venetie, insofar as it mentioned the pueblos, simply confirmed what was said in Sandoval, that the pueblos were dependent Indian communities over which Congress “could exercise jurisdiction over the Pueblo lands, under its general power over ‘all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired.’ ” Venetie, 522 U.S. at 528, 118 S.Ct. 948 (quoting Sandoval, 231 U.S. at 46, 34 S.Ct. 1). The Venetie analysis and its two prong test is not necessary when a crime is committed within the exterior boundaries of a New Mexico pueblo, since pueblos have already been recognized as Indian country. It is only when a crime is committed within lands of questionable Indian country status that the Venetie analysis is necessary. Venetie, 522 U.S. at 530, 118 S.Ct. 948 (stating that section 1151 does not alter the definitions of Indian country as described in earlier cases, including Sandoval).
{30} Of particular concern are the suggestions in the majority opinion that under Venetie fact-finding is or may be required to determine whether a pueblo has been set aside and under federal superintendence. See Maj. Op. ¶ 15 (referring to district judge’s fact findings as also satisfying the set aside requirement), and ¶ 17 (which acknowledges a presumption of federal superintendence based on federal and state cases recognizing federal superintendence of pueblos, but goes on to suggest fact-finding may become necessary). In my opinion the only fact-finding necessary for the inquiry into criminal jurisdiction on pueblo lands is: a) whether the alleged crime was committed within the exterior boundaries of a pueblo, and b) whether the accused is an Indian within the meaning of the Major Crimes Act, 18 U.S.C. § 1153. If an analysis were required under Venetie I would conclude that the “set-aside” of the pueblo lands by the federal government occurred at the time it confirmed the pueblo land grants. Act of Dec. 22, 1858, 35th Congress, 11 Stat. 374 (1859). I would also conclude that “superintending control” of the pueblos has been shown through the Pueblo Lands Act, where Congress exercised “its sovereign capacity as guardian of said Pueblo Indians.” Pueblo Lands Act of June 7, 1924, ch. 331, 43 Stat. 636. I would not require our courts to conduct an evidentiary hearing when the parties agree, as they did in both these cases, that the crime occurred within the exterior boundaries of a pueblo and the accused meets the requirements of the Major Crimes Act, 18 U.S.C. § 1153. “If an extensive factual inquiry is necessary to make a jurisdictional determination ... criminal trials will be delayed.” State v. Ortiz, 105 N.M. 308, 312, 731 P.2d 1352, 1356 (Ct.App.1986).
{31} I also respectfully disagree with the majority’s use of the diminishment or extinguishment analysis as applied to the pueblos. I am not persuaded that Congress may unilaterally alter pueblo boundaries the way it may diminish or extinguish reservation lands. Because Congress creates reservations,4 it also retains the authority to diminish or extinguish the reservation and dedicate the land to public use. See Hagen v. Utah, 510 U.S. 399, 402-415, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994) (describing a Congressional Act of 1864 setting apart lands for the Uintah Valley Reservation and subsequent diminishment of that reservation by congressional act and resulting change in status of criminal jurisdiction in lands restored to public domain). Unlike reservations created by Congress, Congress relinquished all title and claim of the United States to the lands within the pueblos when it confirmed the pueblo grants. Act of Dec. 22, 1858, 35th Congress., 11 Stat. 374 (1859). This is one of the unique, historical, and still significant differences between the pueblo lands and the reservations of other Indian tribes. Clearly, alteration of reservation boundaries by Congress will change the jurisdictional status of those lands as illustrated in Venetie and Ha-gen. Land within the exterior boundaries of the pueblos is Indian country under 18 U.S.C. § 1151 unless Congress has given clear indication of its intent to change its jurisdictional status, regardless of the title of the land within the boundaries.
{32} There is no evidence that Congress has changed criminal jurisdiction within the exterior boundaries of any pueblo. In fact, the history of the Pueblo Lands Act irrefutably evinces congressional intent not to change criminal jurisdiction within the exterior boundaries of the pueblos. The original version of the Act, known as the Bursum Bill, contained this language:
SEC. 3. That the State of New Mexico and the courts thereof shall have jurisdiction over all lands and in all questions arising in relation thereto, which shall have been segregated from any of the pueblo grants hereinbefore enumerated by final decree, as well as also over all lands and as to all questions or controversies arising in relation thereto which have ceased to be reservations as hereinbefore provided, or which shall have been legally sold or disposed of by any of said pueblos or any Indian or Indians thereof, as now or hereafter provided by law.
62 Cong. Rec. 12324 (1922). This version of the bill was defeated following strong national dissent to the Bursum Bill. See 138 Cong. Rec. E328-01 (1992) (describing a 1922 meeting of the All-Pueblo Council gathered at Santo Domingo Pueblo to protest the Bur-sum Bill). The final version of the Pueblo Lands Act deleted this jurisdictional section despite considerable debate, as illustrated by the following exchange during the 1923 congressional hearings:
Senator LENROOT. It is agreed, then, that section 3 may be eliminated?
Commissioner BURKE. Yes.
Senator JONES of New Mexico. I do not know about that, Mr. Chairman. I rather think there is a situation there which ought to be dealt with. The pueblo grants, according to their outlying boundaries, are made Indian country by the enabling act, and because we might segregate those lands as between the individual occupants, as between the Indian and the non-Indian, I do not think it follows what was given to the non-Indians would cease to be Indian country in the absence of some legislation on the subject.
Senator BURSUM. What about criminal jurisdiction? Might not that be involved? Senator JONES of New Mexico. That is what I refer to, the question of eliminating them from what we understand by the term “Indian country.” I do not think, just offhand, we ought to eliminate that section. I believe there is something there we ought to think about. But we can do that later.
Hearings on S.3855 and S.4223 Before the Subcomm. of the Senate Comm, on Public Lands and Surveys, 67th Cong., 4th Sess. 89 (1923). Congress did not act “later” to remove Indian country status from any of the lands within the exterior boundaries of the pueblos, and clearly did not alter criminal jurisdiction affecting Pueblos. It was not until recently that Congress amended the Pueblo Lands Act to address the jurisdictional issue. Maj. Op. n. 1. Congress confirmed criminal jurisdiction in the Pueblos and the United States and specifically noted that the State of New Mexico only has jurisdiction over an offense committed by a person who is not a member of a Pueblo or an Indian, provided the offense is not subject to the jurisdiction of the United States. Pueblo Lands Act of 1924, ch. 331, 43 Stat. 636, amended by S. 279, 109th Cong., 119 Stat. 2573 (2005). Thus, both the Pueblo Lands Act and its legislative history fail to provide substantial and compelling evidence of congressional intent to alter the criminal jurisdiction applicable to crimes committed on pueblo lands by tribal members.
{33} Because I agree that the State does not have jurisdiction over criminal offenses committed by tribal members within the exterior boundaries of pueblos, I concur in the result reached by the majority.
I CONCUR: PETRA JIMENEZ MAES, Justice.. See Creation of Indian reservations, 25 U.S.C. § 211 (1918) (stating “[N]o Indian reservation shall be created, nor shall any additions be made to one heretofore created, within the limits of the States of New Mexico and Arizona, except by Act of Congress.”); see also New Indian reservations, 25 U.S.C. § 467 (1934) (authorizing the Secretaiy of the Interior to proclaim new Indian reservations and to add lands to existing reservations).