State v. Steven B. , 8 N.M. Ct. App. 140 ( 2015 )

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:________________
3 Filing Date: June 25, 2015
4 NO. 34,122
5 STATE OF NEW MEXICO,
6 Plaintiff-Petitioner,
7 v.
8 STEVEN B.,
9 Child-Respondent.
10 CONSOLIDATED WITH
11 NO. 34,142
12 STATE OF NEW MEXICO,
13 Plaintiff-Petitioner,
14 v.
15 ERNIE BEGAYE,
16 Defendant-Respondent.
17 ORIGINAL PROCEEDING ON CERTIORARI
18 Grant L. Foutz, District Judge
19 Hector H. Balderas, Attorney General
1 James W. Grayson, Assistant Attorney General
2 Santa Fe, NM
3 for Petitioner
4 Jorge A. Alvarado, Chief Public Defender
5 B. Douglas Wood, III, Assistant Appellate Defender
6 Santa Fe, NM
7 for Respondent Steven B.
8 Robert E. Tangora, L.L.C.
9 Robert E. Tangora
10 Santa Fe, NM
11 for Respondent Ernie Begaye
12 Damon P. Martinez, U.S. Attorney, District of New Mexico
13 Jonathon M. Gerson, Assistant U.S. Attorney
14 Albuquerque, NM
15 for Amicus Curiae United States
16 The Navajo Nation Department of Justice
17 Harrison Tsosie, Attorney General
18 Paul W. Spruhan, Assistant Attorney General
19 Window Rock, AZ
20 for Amicus Curiae The Navajo Nation
1 OPINION
2 MAES, Justice.
3 {1} In this consolidated appeal, Respondents Steven B. and Ernie Begaye
4 (Respondents), are both enrolled members of the Navajo Nation who stand accused
5 of offenses committed on Parcel Three of Fort Wingate (Parcel Three). The question
6 presented is whether Parcel Three is a dependent Indian community—and therefore
7 Indian country—under 18 U.S.C. § 1151(b) (2012) and Alaska v. Native Village of
8 Venetie Tribal Government, 522 U.S. 520 (1998). If so, then the district court
9 properly concluded that it lacked jurisdiction over Respondents. See State v.
10 Quintana, 2008-NMSC-012, ¶ 4, 143 N.M. 535, 178 P.3d 820 (“In general, ‘a state
11 does not have jurisdiction over crimes committed by an Indian in Indian country.’”
12 (quoting State v. Frank, 2002-NMSC-026, ¶ 12, 132 N.M. 544, 52 P.3d 404)). If not,
13 then we must reverse the district court and permit the State to proceed against
14 Respondents.
15 {2} We are not the first court to consider the Indian country status of Parcel Three.
16 More than a decade-and-a-half ago, the Court of Appeals in State v. Dick held that
17 Parcel Three is a dependent Indian community and ordered the dismissal of a DWI
18 prosecution due to a lack of state jurisdiction. See 1999-NMCA-062, ¶ 28, 127 N.M.
19 382, 981 P.2d 796, cert. granted, 127 N.M. 391, 981 P.2d 1209 (1999), cert. quashed,
1 129 N.M. 208, 4 P.3d 36 (2000). Four years later, the U.S. District Court for the
2 District of New Mexico reached the opposite conclusion in United States v. M.C.,
3 holding that Parcel Three is not a dependent Indian community and dismissing an
4 indictment for second-degree murder due to a lack of federal jurisdiction. See 311 F.
5 Supp. 2d 1281, 1282, 1297 (D.N.M. 2004).
6 {3} Faced with these contradictory rulings, the district court determined that Dick
7 was controlling and dismissed the proceedings against Respondents. The Court of
8 Appeals affirmed, and the State now urges this Court to overrule Dick and to reverse.
9 We review the controlling case law, the history, and the present circumstances of
10 Parcel Three, and conclude that Dick was wrongly decided and must be overruled.
11 Parcel Three is not a dependent Indian community, and the district court, therefore,
12 has jurisdiction over Respondents. The district court and the Court of Appeals having
13 concluded otherwise, we reverse.
14 I. FACTS AND PROCEDURAL HISTORY
15 {4} The facts leading to these consolidated appeals are not in dispute. Respondents
16 are enrolled members of the Navajo Nation who were charged with offenses which,
17 if proven, were committed on Parcel Three. Respondent Steven B., a child, is the
18 subject of a petition alleging that he committed the delinquent act of battery against
2
1 a school official at Wingate High School, contrary to NMSA 1978, Sections 30-3-
2 9(E) (1989) and 32A-2-3(A) (2009). Respondent Begaye was charged in an unrelated
3 proceeding with 11 counts of criminal sexual penetration of a child under 13 years
4 of age, contrary to NMSA 1978, Section 30-9-11(D)(1) (2009), and with 14 counts
5 of criminal sexual contact of a minor on a child under 13 years of age, contrary to
6 NMSA 1978, Section 30-9-13(B)(1) (2003). The criminal sexual penetration and
7 criminal sexual contact allegedly occurred in the staff housing area of the Wingate
8 school campus. The alleged victims in both proceedings were non-Indians.
9 {5} Respondents moved to dismiss the proceedings for lack of state jurisdiction,
10 arguing that Parcel Three is a dependent Indian community and therefore Indian
11 country as held in Dick. The State acknowledged that Dick was controlling, but
12 argued that the courts should revisit the status of Parcel Three in light of the federal
13 district court’s contrary holding in M.C. The parties entered into stipulated findings
14 of fact and conclusions of law, including the State’s concession that the district court
15 was bound by stare decisis to follow Dick, and after an evidentiary hearing, the
16 district court granted Respondents’ motions to dismiss.
17 {6} The State appealed both rulings, arguing that Dick was wrongly decided and
18 that it should be overruled. The Court of Appeals considered the federal district
3
1 court’s reasoning in M.C. and declined to overrule Dick. See State v. Steven B., 2013-
2 NMCA-078, ¶¶ 14-15, 306 P.3d 509. As a result, the Court affirmed the dismissals
3 of the proceedings against Respondents. See id. ¶ 16; State v. Begaye, No. 32,136,
4 mem. op., ¶ 4 (N.M. Ct. App. Apr. 9, 2013) (non-precedential) (“Steven B. controls
5 this appeal.”). We granted certiorari in both cases and consolidated the proceedings
6 to settle for our state courts the question of Parcel Three’s status as a dependent
7 Indian community.
8 II. STANDARD OF REVIEW
9 {7} “Questions regarding subject matter jurisdiction ‘are questions of law which
10 are subject to de novo review.’” State v. Chavarria, 2009-NMSC-020, ¶ 11, 146 N.M.
11 251, 208 P.3d 896 (quoting State v. Montoya, 2008-NMSC-043, ¶ 9, 144 N.M. 458,
12 188 P.3d 1209). This Court defers to a district court’s factual determinations “if such
13 findings are supported by substantial evidence.” Frank, 2002-NMSC-026, ¶ 10
14 (internal quotation marks and citation omitted). Because the State does not contest
15 the facts found by the district court, we review de novo whether the district court
16 correctly applied the law to the facts, viewing the facts in the manner most favorable
17 to Respondents as the prevailing parties. Id.18 III. DISCUSSION
4
1 A. The issue before us is the type of “use” for which lands must be set aside
2 by the federal government to support a finding of a dependent Indian
3 community
4 {8} Though the ultimate question in this appeal is whether Parcel Three is a
5 dependent Indian community, the parties and the district court below have narrowed
6 the issue significantly. To frame the precise question before us, we pause to review
7 some basic principles and to summarize the disagreement between Dick and M.C.
8 {9} We first explained in Blatchford v. Gonzales that a dependent Indian
9 community is one of three categories of land that Congress has defined as Indian
10 country for purposes of criminal jurisdiction. See 1983-NMSC-060, ¶¶ 7, 8, 100 N.M.
11 333, 670 P.2d 944 (citing 18 U.S.C. § 1151 (1976), which defines Indian country as
12 Indian reservations, dependent Indian communities, and Indian allotments). The
13 phrase dependent Indian community originated in federal common law and was
14 adopted as part of the statutory definition of Indian country in 1948 when Congress
15 enacted § 1151. See Blatchford, 1983-NMSC-060, ¶ 9 (noting that the dependent
16 Indian community language in § 1151(b) stemmed from United States v. Sandoval,
17 231 U.S. 28 (1913), and United States v. McGowan, 302 U.S. 535 (1938)).
18 {10} To determine if a particular tract of land is a dependent Indian community, we
19 apply the two-prong test articulated by the U.S. Supreme Court in Venetie: “for the
5
1 land in question to be a dependent Indian community, it must satisfy two
2 requirements: (1) it ‘must have been set aside by the Federal Government for the use
3 of the Indians as Indian land[,]’ and (2) it ‘must be under federal superintendence.’”
4 Quintana, 2008-NMSC-012, ¶ 4 (alteration in original) (quoting Venetie, 522 U.S.
5 at 527). If the land at issue fails to meet either prong, it is not a dependent Indian
6 community. See Quintana, 2008-NMSC-012, ¶ 8 (declining to consider whether the
7 land in question was under federal superintendence because the Court had already
8 concluded that it failed to meet the set-aside prong).
9 {11} The district court below, with the State’s concession, found that Parcel Three
10 is administered by the Bureau of Indian Affairs (BIA) and therefore meets Venetie’s
11 federal superintendence prong. That conclusion is not challenged on appeal.1 Thus,
12 to determine whether Parcel Three is a dependent Indian community, we must answer
13 only whether Parcel Three satisfies the first prong of the Venetie test, whether it was
14 “set aside by the Federal Government for the use of the Indians as Indian land.”
15 Venetie, 522 U.S. at 527.
1
18 The United States, as amicus curiae, disputes that the BIA’s oversight of
19 Parcel Three is the type of federal superintendence necessary to meet the Venetie test.
20 However, the district court explicitly concluded that Parcel Three is under federal
21 superintendence for the purposes of Venetie, a conclusion that the State does not
22 challenge on appeal. We therefore do not reach the issue.
6
1 {12} But our inquiry is narrower still. In our most recent opinion to address the set-
2 aside requirement, we explained that Venetie requires “some explicit action taken by
3 Congress or the Executive to create Indian country.” Quintana, 2008-NMSC-012, ¶
4 6. Our cases have shown that failing the first part of this requirement—the need for
5 “some explicit action taken by Congress or the Executive”—can be dispositive such
6 that a tract is not a dependent Indian community. See id. ¶¶ 2, 6 (holding that State
7 Road 16, which separates the Santo Domingo and Cochiti Pueblos and is located on
8 land owned by the federal government and administered by the U.S. Forest Service,
9 is not a dependent Indian community because “there is no evidence of any explicit
10 congressional or executive action recognizing State Road 16 as Indian country”);
11 Frank, 2002-NMSC-026, ¶¶ 4, 11, 23 (holding that a state road located on federally
12 owned and administered land within a “checkerboard area” was not a dependent
13 Indian community because there was “‘no evidence . . . indicating that the area in
14 question was set aside by the Federal Government for the exclusive use of Indians’”
15 (alteration in original) (quoting the district court’s findings of fact and conclusions
16 of law)); see also State v. Vandever, 2013-NMCA-002, ¶ 16, 292 P.3d 476 (holding
17 that land owned in fee simple by the Navajo Nation was not a dependent Indian
18 community because “[t]here was no evidence . . . to establish either that the federal
7
1 government took some explicit action to designate the land as Indian country or that
2 the federal government transferred the property to Indians for use by Indians”).
3 {13} Parcel Three does not suffer from this shortcoming. The district court found
4 based upon the parties’ stipulated facts that Parcel Three was transferred from the
5 Department of Defense to the Department of Interior “for use by the Bureau of Indian
6 Affairs” in 1950 by an act of Congress. We therefore assume for the purposes of these
7 appeals that the transfer of Parcel Three to the BIA was the type of “explicit action”
8 that we have found lacking in previous cases to meet Venetie’s set-aside requirement.
9 See, e.g., Quintana, 2008-NMSC-012, ¶ 6.
10 {14} Which brings us to the heart of the matter. The precise question before us is
11 whether the 1950 transfer of Parcel Three set the land aside “for the use of the Indians
12 as Indian land.” Venetie, 522 U.S. at 527 (emphasis added); see also Quintana, 2008-
13 NMSC-012, ¶ 6 (holding that a valid set-aside under Venetie requires “some explicit
14 action taken by Congress or the Executive to create Indian country” (emphasis
15 added)). The parties disagree, as did the courts in Dick and M.C., over the type of
16 “use” that is sufficient to meet the set-aside requirement. The State argues, consistent
17 with M.C., that a dependent Indian community must be located on lands set aside for
18 “permanent inhabitation [by] a distinct group of Indians.” See 311 F. Supp. 2d at 1295
8
1 (“[T]here has never been a finding of a dependent Indian community unless the
2 community at issue was located on tribal lands or land held in trust for Native
3 Americans.”). Respondents, by contrast, argue that Dick correctly held that
4 inhabitation, though sufficient to meet the set-aside requirement, is not necessary and
5 that the requirement is met when lands are set aside simply for “Indian use.” See
6 1999-NMCA-062, ¶ 21 (“Although the cases relied upon by Venetie and Venetie itself
7 address lands that were allotments, villages, reservations, or otherwise home to
8 Indians, there is no indication that the set-aside requirement is so limited.”).
9 {15} We first undertake our own analysis of the origin and development of the term
10 dependent Indian community to determine the type of “use” necessary for a finding
11 of Indian country. We then turn to the particular circumstances of Parcel Three to
12 determine if it was set aside “for the use of the Indians as Indian land.” Venetie, 522
13 U.S. at 527.
14 B. The cases culminating in Venetie limit Indian country to land set aside for
15 “use” as a long-term settlement by an Indian community
16 {16} The term dependent Indian community originated in Sandoval, which was one
17 of a trio of U.S. Supreme Court opinions in the early twentieth century that refined
18 the federal definition of Indian country. See Sandoval, 231 U.S. 28; see also United
19 States v. Pelican, 232 U.S. 442 (1914); Donnelly v. United States, 228 U.S. 2439
1 (1913). Those cases, beginning with Donnelly and followed by McGowan and
2 Venetie, provide critical factual and legal context for the question presented in this
3 appeal. We therefore review the Donnelly line of cases before turning to our analysis
4 of Dick and the status of Parcel Three.
5 1. The Donnelly line of cases informs the meaning of Indian country
6 under 18 U.S.C. § 11517 {17} Before Congress enacted § 1151 in 1948, it had last defined Indian country in
8 the 1834 Indian Trade and Intercourse Act as follows:
9 That all that part of the United States west of the Mississippi, and not
10 within the states of Missouri and Louisiana, or the territory of Arkansas,
11 and, also, that part of the United States east of the Mississippi river, and
12 not within any state to which the Indian title has not been extinguished,
13 for purposes of this act, be taken and deemed to be the Indian country.
14 Act of June 30, 1834, ch. 161, § 1, 4 Stat. 729. This geographical definition soon
15 became unworkable with the nation’s rapid expansion westward following the
16 acquisition of California and other western territories as a result of the Mexican-
17 American War. See Joseph D. Matal, A Revisionist History of Indian Country, 14
18 Alaska L. Rev. 283, 294 (1997) (“The Mexican-American War of 1846-48 forced a
19 change in thinking.”). As the United States embraced its “manifest destiny” and
20 encouraged settlement from coast to coast, the federal government began to relocate
21 Indians onto tribal reservations within organized states and territories. See, e.g.,
10
1 Organized Vill. of Kake v. Egan, 369 U.S. 60, 72 (1962) (“As the United States
2 spread westward, it became evident that there was no place where the Indians could
3 be forever isolated.”). Having become obsolete, the 1834 definition of Indian country
4 was effectively repealed when it was omitted from the U.S. Code in 1874. See 18 Stat.
5 1091, tit. 74 (1874) (deleting the definition of Indian country in Rev. Stat. § 5596
6 (1873)); see also Clairmont v. United States, 225 U.S. 551, 557 (1912) (explaining
7 that the 1834 definition of Indian country “was not re-enacted in the Revised Statutes,
8 though other parts of the statute were, and hence was repealed by § 5596 of the
9 revision”).
10 {18} With no statutory definition of Indian country, the courts took up the task of
11 formulating a common law definition in light of “the changes which have taken place
12 in our situation, with a view of determining from time to time what must be regarded
13 as Indian country, where it is spoken of in the statutes.” Ex parte Kan-gi-shun-ca
14 (otherwise known as Crow Dog), 109 U.S. 556, 561 (1883). In an early effort, the
15 Supreme Court characterized Indian country as “all lands ‘to which the Indian title
16 has not been extinguished,’ and which were either outside ‘the exterior geographical
17 limits of a state’ or ‘excepted from its jurisdiction . . . at the time of its admission.’”
18 Matal, supra, at 301 (omission in original) (quoting Ex parte Kan-gi-shun-ca, 109
11
1 U.S. at 561). That definition, based on aboriginal title, would stand more-or-less
2 undisturbed until the Court decided Donnelly, Pelican, and Sandoval.
3 {19} In Donnelly, the Supreme Court considered whether to reverse a federal
4 conviction for the murder of an Indian within the boundaries of an Indian reservation
5 in northern California. See 228 U.S. at 252. One of the arguments for reversal was
6 that the reservation was not Indian country because it was located on lands that were
7 “set apart as an Indian reservation out of the public domain, and not previously
8 occupied by the Indians.” See id. at 268. The Court rejected that argument, reasoning
9 that Indian country was no longer limited to a tribe’s aboriginal lands:
10 “[T]he changes which have taken place in our situation” are so
11 numerous and so material, that the term [“Indian country”] cannot now
12 be confined to land formerly held by the Indians, and to which their title
13 remains unextinguished. And, in our judgment, nothing can more
14 appropriately be deemed “Indian country” . . . than a tract of land that,
15 being a part of the public domain, is lawfully set apart as an Indian
16 reservation.
17 Id. at 269 (quoting Clairmont, 225 U.S. at 557). Donnelly, therefore, clarified that
18 Indian country includes land set aside as a reservation, even when the land was not
19 “previously occupied by the Indians.” See Id. at 268-69.
20 {20} In Pelican, the Supreme Court considered whether an 80-acre tract of land,
21 which previously had been part of the Colville Reservation, remained Indian country
12
1 after the land had been allotted to “Agnes, an Indian,” and held in trust by the United
2 States for Agnes for a period of 25 years. See 232 U.S. at 444-47. The lower court had
3 concluded that the allotment was not Indian country and, therefore, had dismissed a
4 pair of federal indictments for an alleged murder that had occurred on the allotment.
5 See id. at 444-45. The Supreme Court reasoned that the allotment continued to be
6 Indian country even after the original reservation was diminished because the lands
7 “still retain during the trust period a distinctively Indian character, being devoted to
8 Indian occupancy under the limitations imposed by Federal legislation.” Id. at 449.
9 Pelican thus clarified that Indian country includes, in addition to reservations, land
10 allotted for “Indian occupancy” and held in trust by the federal government. See id.11 at 449-51 (“[M]eanwhile, [during the trust period,] the lands remained Indian lands,
12 set apart for Indians under governmental care . . . .”).
13 {21} In between Donnelly and Pelican, the Supreme Court in Sandoval considered
14 a third category of lands, Pueblo lands, which were neither a formal reservation nor
15 an allotment. See Sandoval, 231 U.S. at 38-39 (describing the lands in question as
16 “held in communal, fee simple ownership under grants from the King of Spain, made
17 during the Spanish sovereignty, and confirmed by Congress since the acquisition of
18 [the New Mexico] territory by the United States.”). The lower court had dismissed an
13
1 indictment for “introducing intoxicating liquor into the Indian country” after
2 concluding that a pair of statutes that defined Pueblo lands as Indian country were an
3 invalid exercise of Congressional authority. See id. at 36-37. The Supreme Court first
4 concluded that Congress not only has plenary authority over “commerce with the
5 Indian tribes,” but also has “the power and the duty of exercising a fostering care and
6 protection over all dependent Indian communities within its borders.” Id. at 45-46
7 (emphasis added). The Court then concluded that the “Pueblos of New Mexico” are
8 such dependent communities, “entitled to [the federal government’s] aid and
9 protection, like other Indian tribes.” Id. at 47. As a result of that “guardianship,” the
10 Court held that the lands “owned or occupied by the Pueblo Indians” were Indian
11 country, regardless of being owned in fee simple by “the Indians of each [P]ueblo.”
12 Id. at 37, 48.
13 {22} Thus, to the extent that Sandoval used the term dependent Indian community
14 to refine the common law definition of Indian country, it is more accurate to say, not
15 that a dependent Indian community itself is Indian country, but that the land “owned
16 or occupied” by a dependent Indian community is Indian country. See United States
17 v. Chavez, 290 U.S. 357, 362 (1933) (“In United States v. Sandoval, this court, after
18 full examination of the subject, held that the status of the Indians of the several
14
1 pueblos in New Mexico is that of dependent Indian tribes under the guardianship of
2 the United States, and that by reason of this status they and their lands are subject to
3 the legislation of Congress enacted for the protection of tribal Indians and their
4 property.” (citation omitted)).
5 {23} Some 25 years after Sandoval, the Supreme Court revisited its definition of
6 Indian country in McGowan. The McGowan court considered whether the Reno
7 Indian Colony, “composed of several hundred Indians residing on a tract of 28.38
8 acres of land owned by the United States,” was Indian country. 302 U.S. at 537.
9 Noting that Congress’s intent in creating the colony was “to provide lands for needy
10 Indians scattered over the State of Nevada, and to equip and supervise these Indians
11 in establishing a permanent settlement,” the Court reasoned that Congress had
12 “afforded [Indians in the colony] the same protection by the government as that given
13 Indians in other settlements known as ‘reservations.’” Id. at 537-38. The Court,
14 therefore, held that, whether designated a reservation or a colony, the tract was Indian
15 country because the colony had been “validly set apart for the use of the Indians”;
16 was “under the superintendence of the government”; and was located on land that was
17 titled in the government and that the government permitted the Indians to occupy. Id.18 at 539. McGowan therefore signaled that lands set aside by the federal government
15
1 for settlement by a dependent Indian community—regardless of the label attributed
2 to such lands or to the community itself—are Indian country.
3 {24} With these cases as a backdrop, Congress in 1948 set forth the current
4 definition of Indian country, recognizing the three categories of lands at issue in
5 Donnelly, Pelican, Sandoval, and McGowan:
6 [T]he term “Indian country,” as used in this chapter, means (a) all land
7 within the limits of any Indian reservation under the jurisdiction of the
8 United States Government, notwithstanding the issuance of any patent,
9 and, including rights-of-way running through the reservation, (b) all
10 dependent Indian communities within the borders of the United States
11 whether within the original or subsequently acquired territory thereof,
12 and whether within or without the limits of a state, and (c) all Indian
13 allotments, the Indian titles to which have not been extinguished,
14 including rights-of-way running through the same.
15 18 U.S.C. § 1151 (1948) (emphasis added). The Donnelly line of cases therefore
16 provides context for courts construing the statutory definition of Indian country,
17 including whether land is a dependent Indian community. See 18 U.S.C. § 115118 Historical and Statutory Notes (explaining that the definition of Indian country “is
19 based on [the] latest construction of the term by the United States Supreme Court in
20 U.S. v. McGowan, following U.S. v. Sandoval” and that “Indian allotments were
21 included in the definition on authority of the case of U.S. v. Pelican” (citations
22 omitted)).
16
1 {25} And it was to these cases that the U.S. Supreme Court looked in Venetie, 50
2 years after Congress enacted § 1151, when the Court first interpreted the phrase
3 dependent Indian community as used in the statute. In Venetie, the Court considered
4 whether 1.8 million acres of land owned in fee simple by the Native Village of
5 Venetie Tribal Government was a dependent Indian community. See 522 U.S. at 523-
6 24. The land had been a reservation until Congress revoked the reservation status of
7 nearly all Alaskan reservations and extinguished aboriginal claims to all Alaskan
8 lands in exchange for the transfer of nearly 1 billion dollars and 44 million acres of
9 land to a collection of private corporations owned exclusively by Alaska Natives. See
10 id. at 524 (discussing the Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C.
11 § 1601 to -1629h, 85 Stat. 688 (1971)). The Ninth Circuit had applied a six-factor
12 balancing test and concluded that the land was a dependent Indian community under
13 § 1151. See Venetie, 522 U.S. at 525-26.
14 {26} Reversing, the Supreme Court disapproved of the Ninth Circuit’s multi-factor
15 test and instead identified from its case law two irreducible requirements for
16 determining whether lands are a dependent Indian community: “first, they must have
17 been set aside by the Federal Government for the use of the Indians as Indian land;
18 second, they must be under federal superintendence.” 522 U.S. at 527. The Court
17
1 drew these requirements from the Donnelly line of cases, reasoning that “in enacting
2 § 1151, Congress codified these two requirements, which previously we had held
3 necessary for a finding of ‘Indian country’ generally.” Venetie, 522 U.S. at 527. It
4 further explained the requirements’ significance as they relate to a dependent Indian
5 community in particular:
6 The federal set-aside requirement ensures that the land in question is
7 occupied by an “Indian community”; the federal superintendence
8 requirement guarantees that the Indian community is sufficiently
9 “dependent” on the Federal Government that the Federal Government
10 and the Indians involved, rather than the States, are to exercise primary
11 jurisdiction over the land in question.
12 Id. at 531 (footnote omitted).
13 {27} The Supreme Court then applied its two-factor test to the lands owned by the
14 Village of Venetie. With respect to the set-aside prong, the Court held that the
15 revocation of the Venetie Reservation and subsequent transfer of the lands in fee
16 simple to the privately owned corporations, without restraints on alienation or use
17 restrictions, precluded a finding that the lands had been set aside as Indian lands. See
18 id. at 532-33. The Court then concluded that the lands failed the superintendence
19 prong because Congress explicitly intended to “avoid a lengthy wardship or
20 trusteeship” and had left in place only minimal protections for the lands transferred
21 to the Alaska Natives. Id. at 533 (internal quotation marks and citation omitted)
18
1 (noting that “the land is exempt from adverse possession claims, real property taxes,
2 and certain judgments as long as it has not been sold, leased, or developed”). Because
3 the land failed both requirements, the Court held that it was not a dependent Indian
4 community. See id. at 532.
5 {28} Thus, Venetie looked past the labels in § 1151 and set forth a functional
6 definition of Indian country, including dependent Indian communities. See also Felix
7 S. Cohen, Felix S. Cohen’s Handbook of Federal Indian Law 1982 Edition 39
8 (Rennard Stickland et al. eds., 1982) (“Read together, 18 U.S.C. §§ 1151(a) and (b)
9 employ a functional definition focusing on the federal purpose in recognizing or
10 establishing a reasonably distinct location for the residence of tribal Indians under
11 federal protection.”). Whether termed a reservation, community, Pueblo, allotment,
12 or colony, Venetie held that Indian country is limited to lands that meet its two-part
13 test, as informed by the opinions upon which Venetie relied. See 522 U.S. at 530
14 (“Section 1151 does not purport to alter this definition of Indian country, but merely
15 lists the three different categories of Indian country mentioned in our prior
16 cases . . . .”). With this context in mind, we turn to the question of the “use” necessary
17 to support a finding of a dependent Indian community.
18 2. Dick’s interpretation of the set-aside prong is inconsistent with
19 precedent and is overruled
19
1 {29} The Court of Appeals in Dick considered the Donnelly line of cases and
2 concluded that, “[a]lthough the cases relied upon by Venetie and Venetie itself
3 address lands that were allotments, villages, reservations, or otherwise home to
4 Indians, there is no indication that the set-aside requirement is so limited.” 1999-
5 NMCA-062, ¶ 21. Dick also rejected the argument—similar to the State’s argument
6 in the present appeals—that Venetie requires the land to be “set aside for an Indian
7 residential community or settlement.” See 1999-NMCA-062, ¶¶ 20-21. Instead, the
8 Court held that Venetie requires only that the land be “set aside for Indian use.” Dick,
9 1999-NMCA-062, ¶ 21. The Court reasoned that, because McGowan and Pelican had
10 both held that lands other than reservations were Indian country, the U.S. Supreme
11 Court “could not have meant that land had to be set-aside as reservation-type land.
12 Otherwise, there would have been no need for the passage of Section 1151, which
13 separately discusses reservations, allotments, and dependent Indian communities.”
14 Dick, 1999-NMCA-062, ¶ 22.
15 {30} We view this as a misreading of Venetie and the cases leading to the enactment
16 of § 1151. Based on our review, the terms reservation, dependent Indian community,
17 and allotment were born from an era in which criminal jurisdiction over crimes
18 committed in Indian country was being tested by defendants on technical, and even
20
1 semantic, grounds. Cf. State v. Frank, 2001-NMCA-026, ¶ 35, 130 N.M. 306, 24 P.3d
2 338 (Bosson, C.J., dissenting) (“[W]e should be mindful that the provocateur of this
3 conflict is not the tribe, but a skillful defense attorney hoping to avoid prosecution by
4 playing off the jurisdictional aspirations of each against the other.”), rev’d, 2002-
5 NMSC-026, 132 N.M. 544, 52 P.3d 404. Without a then-current definition of Indian
6 country, defendants made a series of arguments premised on the idea that the federal
7 government lacked jurisdiction over lands that deviated from historical definitions of
8 Indian country.
9 {31} In dispelling these arguments, the U.S. Supreme Court first concluded,“not
10 surprisingly,” that Indian country includes lands set aside as reservations, even when
11 they were not the ancestral lands of a particular Tribe. See Venetie, 522 U.S. at 528
12 n.3 (citing Donnelly, 228 U.S. at 269). The Court then clarified that Indian country
13 includes lands, though not formally set aside as a reservation, that are set aside for
14 ownership and occupation by a dependent Indian community—in that case, the Santa
15 Clara Pueblo. See Sandoval, 231 U.S. at 36. Next, the Court held that Indian country
16 encompasses land that previously had been part of a reservation and that was later
17 allotted to a particular Indian for “Indian occupancy,” at least during the period that
18 the land was held in trust by the federal government. See Pelican, 232 U.S. at 449-50.
21
1 And finally, the Court held that an Indian “colony,” regardless of its label, is Indian
2 country because it meets the requirements of Indian country generally, including that
3 it was set aside for settlement by a dependent Indian community. See McGowan, 302
4 U.S. at 539.
5 {32} After Congress codified these three categories of Indian country in § 1151,
6 Venetie clarified that they are merely variations on the functional definition of Indian
7 country that the Court had drawn from its earlier cases:
8 In each of these cases . . . we relied upon a finding of both a
9 federal set-aside and federal superintendence in concluding that the
10 Indian lands in question constituted Indian country and that it was
11 permissible for the Federal Government to exercise jurisdiction over
12 them. Section 1151 does not purport to alter this definition of Indian
13 country, but merely lists the three different categories of Indian country
14 mentioned in our prior cases: Indian reservations, see Donnelly v. United
15 States; dependent Indian communities, see United States v. McGowan;
16 United States v. Sandoval; and allotments, see United States v. Pelican.
17 See 522 U.S. at 530 (citations omitted).
18 {33} Thus, while the three categories listed in § 1151 may have different labels and
19 particular features of ownership, we disagree with the Court of Appeals that Indian
20 country is not limited to lands that serve as “home to Indians.” Dick, 1999-NMCA-
21 062, ¶ 21. To the contrary, a unifying feature of the lands from which those categories
22 were drawn is that they were set aside for a singular “use”: the long-term settlement
22
1 of an Indian community. See McGowan, 302 U.S. at 537 (noting that Congress’s
2 intent in creating the Reno Indian colony was “to provide lands for needy Indians
3 scattered over the State of Nevada, and to equip and supervise these Indians in
4 establishing a permanent settlement” (emphasis added)); Sandoval, 231 U.S. at 39
5 (holding that Pueblo lands were Indian country when Congress had confirmed the
6 land grants made to the Pueblo Indians by the King of Spain and that adjacent lands
7 had been “reserved by Executive orders for the use and occupancy of the Indians”
8 (emphasis added)); see also Pelican, 232 U.S. at 449 (holding that the allotted lands
9 “still retain during the trust period a distinctively Indian character, being devoted to
10 Indian occupancy under the limitations imposed by Federal legislation” (emphasis
11 added)); Donnelly, 228 U.S. at 255 (noting that Congress had set the lands “for the
12 purposes of Indian Reservations, which shall be of suitable extent for the
13 accommodation of the Indians of said state” (quoting Act of April 8, 1864, § 2, 13
14 Stat. at L. 39, chap. 48)); cf. Venetie, 522 U.S. at 532-33 (holding that the lands had
15 not been set aside for use as Indian lands when the federal government had
16 transferred the lands to Native-owned corporations without restraints on alienation
17 or use restrictions).
23
1 {34} In holding that Venetie requires that lands be set aside merely for “Indian use,”
2 the Court of Appeals in Dick strayed beyond the factual underpinnings that gave rise
3 to § 1151. We decline to do the same, particularly when neither the parties nor the
4 amici curiae in these proceedings have cited another instance of a court taking a
5 similarly expansive view of the set-aside requirement. We therefore conclude that the
6 “use” envisioned by Congress when it enacted § 1151(b) was the sort of occupancy
7 associated with long-term settlement by an Indian community.
8 {35} We note that the outcomes in our previous cases applying Venetie are
9 consistent with our conclusion. See Quintana, 2008-NMSC-012, ¶¶ 2, 6-7 (holding
10 that a state road separating the Santo Domingo and Cochiti Pueblos and located on
11 land owned by the federal government and administered by the U.S. Forest Service
12 did not meet Venetie’s set-aside requirement); State v. Romero, 2006-NMSC-039, ¶¶
13 2-3, 15, 140 N.M. 299, 142 P.3d 887 (holding that privately owned fee lands within
14 the boundaries of the Taos and Pojoaque Pueblos were properly set aside under
15 Venetie “by congressional acts recognizing pueblo land”); Frank, 2002-NMSC-026,
16 ¶¶ 4, 11, 23 (holding that a state road located on federally owned and administered
17 land within a “checkerboard area” was not a dependent Indian community because
18 there was “‘no evidence . . . indicating that the area in question was set aside by the
24
1 Federal Government for the exclusive use of Indians’” (quoting the district court’s
2 findings of fact and conclusions of law)); see also Vandever, 2013-NMCA-002, ¶ 16
3 (holding that land owned in fee simple by the Navajo Nation was not a dependent
4 Indian community because “[t]here was no evidence presented to the district court to
5 establish either that the federal government took some explicit action to designate the
6 land as Indian country or that the federal government transferred the property to
7 Indians for use by Indians”).
8 {36} Thus, Dick is an outlier, and we therefore overrule its conclusion that
9 transferring land to the BIA merely for “Indian use” satisfies Venetie’s set-aside
10 requirement. We also modify any previous cases that have restated or approved of
11 Dick’s holding in their discussion of Venetie’s set-aside requirement. See, e.g.,
12 Quintana, 2008-NMSC-012, ¶ 6 (relying on Dick in dicta for the premise that
13 transferring land for Indian use or to the BIA is sufficient to meet the set-aside prong
14 of Venetie). Having identified the “Indian use” contemplated by Venetie, we now
15 must decide if Parcel Three was set aside for long-term settlement by an Indian
16 community.
17 C. Congress set aside Parcel Three for use by the BIA, not for long-term
18 settlement by an Indian community
25
1 {37} The parties agree that the facts related in Dick and in M.C. about Fort Wingate
2 and Parcel Three remain largely unchanged. Although we are primarily concerned
3 with the original purpose for which the land was set aside, we recount the land’s
4 history and present circumstances in some detail to illustrate the interests of the
5 parties and amici curiae involved in these proceedings.
6 {38} Fort Wingate is located on land that was historically inhabited by the Navajo
7 people, though not exclusively. The Treaty with the Navajo of 1868 extinguished the
8 “Navajo tribe’s” aboriginal title to certain lands (including the land that would later
9 become Fort Wingate) and set aside land to be occupied exclusively by the Navajo.
10 See Treaty with the Navajo, 1868, 15 Stat. 667 (1868). In 1870 and 1881, the federal
11 government designated 130 square miles of the formerly Navajo lands as a military
12 reservation, now referred to as Fort Wingate. See Dick, 1999-NMCA-062, ¶ 3.
13 {39} Today, Fort Wingate is split into four parcels, each of which is administered
14 separately by the federal government. Parcel One, an area referred to as the Iyanbito,
15 is held in trust by the federal government for the Navajo Nation and administered by
16 the BIA. See M.C., 311 F. Supp. 2d at 1282. Parcel Two remains the Fort Wingate
17 military reservation, under the control of the Department of Defense. Parcel Three,
18 the subject of this appeal, is administered by the BIA. And Parcel Four is under the
26
1 jurisdiction of the U.S. Forest Service, having been transferred to the Cibola National
2 Forest by an Executive Order dated 1925.
3 {40} Congress created Parcel Three in 1950 when it enacted Public Law 567, which
4 transferred 13,150 acres of Fort Wingate “to the Department of the Interior, for use
5 by the Bureau of Indian Affairs.” Act of June 20, 1950, Pub. L. No. 81-567, 64 Stat.
6 248. Public Law 567 provides,
7 That the Secretary of the Army is hereby authorized and directed to
8 transfer to the Department of the Interior, for use by the Bureau of
9 Indian Affairs, that portion of the Fort Wingate Military Reservation,
10 New Mexico, comprising approximately thirteen thousand one hundred
11 and fifty acres, heretofore determined to be surplus to the requirements
12 of the Department of the Army. Title to the land so transferred shall
13 remain in the United States for the use of Bureau of Indian Affairs.
14 {41} The BIA continues to retain authority over the lands set aside in Public Law
15 567 with two exceptions. First, Congress transferred nearly 7,000 acres of Parcel
16 Three to the Forest Service in 1972. See Act of Oct. 6, 1972, Pub. L. No. 92-465, 86
17 Stat. 777, 779. And second, the BIA sold 16 acres of Parcel Three in 1990 to Paul
18 Merrill (the Merrill property), a private individual, after determining that the land
19 exceeded its needs. The Merrill property currently is the site of a trailer park,
20 apartments, a restaurant, a pawn shop/trading post, a convenience store, a gas station,
21 and a post office that are used by the general public and by local Indian residents.
27
1 {42} Parcel Three is administered by the BIA for the primary purpose of educating
2 Indian children. See Dick, 1999-NMCA-062, ¶14. The BIA operates two schools on
3 Parcel Three, Wingate Elementary School and Wingate High School (the Wingate
4 Schools). Enrollment at the Wingate Schools is not limited exclusively to Indian
5 children; qualified non-Indian children are permitted to attend. However, at the time
6 of the stipulated facts in the cases below, all of the students who attended the Wingate
7 Schools were Indian, and the vast majority were Navajo.
8 {43} Other than the housing on the privately owned Merrill property, Parcel Three
9 offers no living arrangements or establishments besides those provided by the BIA
10 for student dormitories and school-employee family housing. Residence on Parcel
11 Three is conditioned entirely upon an educational or employment relationship with
12 the schools. Approximately 75% of the students who attend Wingate High School
13 live on campus, and 50% of the students who attend Wingate Elementary School live
14 on campus. Approximately 85% of the employees who live on campus are Indian.
15 {44} Administration and oversight of the Wingate Schools is a shared enterprise
16 between the Navajo Nation, the BIA, and the State. The schools’ Board is elected at
17 Navajo Nation elections and determines school policies, the curriculum, and the
18 budget; the BIA has the power to overturn the Board’s decisions and employs the
28
1 schools’ principals; and the schools comply with all New Mexico state education
2 requirements, including requirements for teacher licensure.
3 {45} Similarly, the Navajo Nation and various levels of state, county, and city
4 government collaborate to provide emergency and other support services to the
5 residents of Parcel Three. Emergency telephone calls requesting police, fire, or
6 medical services are directed to and received by McKinley County Metro Dispatch,
7 an organization funded by McKinley County and the City of Gallup. Emergency law
8 enforcement services are provided by the Navajo Nation, the McKinley County
9 Sheriff’s Office, and the New Mexico State Police. All utilities, including telephone
10 services, electricity services, natural gas services, water and sewer services, and waste
11 disposal services, are provided by non-Indian entities. Thus, Parcel Three is the
12 subject of a cooperative approach between federal, state, local, and Navajo
13 governments to provide for the safety and welfare of the people who are permitted by
14 the BIA to reside at the Wingate Schools.
15 {46} To answer the question before us, however, our primary focus is on Public Law
16 567, which offers the clearest indication of Congress’s intended use for Parcel Three.
17 As previously noted, Public Law 567 transferred Parcel Three “to the Department of
18 the Interior, for use by the Bureau of Indian Affairs.” 64 Stat. 248. This language,
29
1 enacted just two years after Congress adopted the definition of Indian country in §
2 1151, does not purport to create Indian country or refer to any of the three categories
3 of Indian country listed in § 1151. Nor does Public Law 567 invoke any other badge
4 of Indian country from the Donnelly line of cases, such as transferring title of Parcel
5 Three to a group or community of Indians, see Sandoval, 231 U.S. at 39, or
6 establishing a trust relationship with or providing for the protection of an Indian
7 Tribe, Indian individual, or other Indian community that owns or occupies the land,
8 see id.; McGowan, 302 U.S. at 537; Pelican, 232 U.S. at 447. Public Law 567
9 provides only that “[t]itle to the land so transferred shall remain in the United States
10 for use of the Bureau of Indian Affairs.” 64 Stat. 248 (emphasis added).
11 {47} In short, the language of Public Law 567 shows that Congress did not set aside
12 Parcel Three for long-term settlement by an Indian community. By transferring the
13 land simply for “use of the Bureau of Indian Affairs,” Congress gave the BIA broad
14 discretion over how to use the land. Such discretion—which apparently extends to
15 transferring a significant portion of Parcel Three to another agency and even to
16 selling part of it to a private individual—is antithetical to long-term settlement by an
17 Indian community and therefore is inconsistent with an intent to create Indian
18 country. To conclude otherwise, we would have to hold that Congress took the
30
1 unprecedented step of implicitly delegating authority to the BIA to create and destroy
2 Indian country on a whim, based on the use that the BIA chooses for Parcel Three at
3 any particular time. Unlike other laws that explicitly delegate authority to create
4 Indian country, the language of Public Law 567 does not support such a conclusion.
5 Compare 64 Stat. 248, with Donnelly, 228 U.S. at 255-56 (noting that Congress
6 explicitly “confer[red] a discretionary power” on the Executive to set aside lands in
7 California for Indian reservations and to enlarge the boundaries as necessary “for the
8 best interests of the Indians”).
9 {48} And even assuming, arguendo, that Congress intended to give the BIA implicit
10 authority to create Indian country, the BIA’s actual use of Parcel Three as the site of
11 the Wingate Schools is inconsistent with long-term settlement by an Indian
12 community. Unlike the Santa Clara Pueblo Indians in Sandoval and the inhabitants
13 of the Reno Indian Colony in McGowan, no community of Indians, including students
14 or staff of the Wingate Schools, has a right to dwell on or use Parcel Three as the
15 community’s homeland, and no Indian community has legal or equitable title to the
16 land in question. Instead, any right to reside on Parcel Three is conditioned upon
17 attendance at or employment with the Wingate Schools and terminates with the end
18 of a student’s or employee’s tenure.
31
1 {49} In the end, the BIA has exercised its discretion under Public Law 567 to use
2 Parcel Three to operate the Wingate Schools, which are federal facilities supported
3 by federal funds that provide a specific, non-exclusive service to Indian children. The
4 provision of such a service, discretionary or otherwise, does not show a congressional
5 designation of federal property as Indian land. See Venetie, 522 U.S. at 534 (“Our
6 Indian country precedents . . . do not suggest that the mere provision of ‘desperately
7 needed* social programs can support a finding of Indian country.”); see also
8 Quintana, 2008-NMSC-012, ¶ 7 (“[E]vidence of the practical use of property has
9 never been held to be sufficient to satisfy the set-aside requirement.”). M.C. summed
10 up this point well:
11 BIA schools exist both within and without the boundaries of
12 Indian country. Testimony presented at the hearing established that the
13 purpose of the [Wingate] School and its means of administration are
14 identical to that of all BIA schools, regardless of whether they are
15 located within or without the boundaries of Indian country. There is no
16 evidence that, in any other instance, the presence of a BIA school alone
17 has changed the status of the land on which it is situated. The fact that
18 the School is a BIA school whose purpose is to provide an education to
19 Native American children thus cannot be the defining feature to
20 establish a dependent Indian community on Parcel Three. A holding to
21 the contrary would be an improper expansion of both the language and
22 the historical context of the term dependent Indian community.
23 311 F. Supp. 2d at 1295-96. We agree. The BIA’s operation of a school—even a
24 boarding school on federally owned land—does not by itself create a dependent
32
1 Indian community. The land must have been set aside for long-term settlement by an
2 Indian community. Because Parcel Three was not set aside for that purpose, it is not
3 a dependent Indian community.
4 {50} Respondents argue that C.M.G. v. State supports Dick’s conclusion that Parcel
5 Three is a dependent Indian community. 1979 OK CR 39, ¶ 21, 594 P.2d 798, cert.
6 denied, 444 U.S. 992 (1979). In C.M.G., the Oklahoma Court of Criminal Appeals
7 held that a BIA-operated school, the Chilocco Indian School, was a dependent Indian
8 community. See id. ¶¶ 15-22. Though the result in C.M.G. favors Respondents, we
9 agree with the State that the reasoning in that case actually supports our conclusion
10 that Parcel Three is not a dependent Indian community.
11 {51} As Respondents correctly observe, C.M.G. noted many features of the Chilocco
12 Indian School that parallel the Wingate Schools in this appeal. See id. ¶ 15 (noting
13 that the land is owned by the United States, that all of the students and most of the
14 staff are Indians, and that salaries and tuition are funded by the BIA). However, the
15 Oklahoma Court was clear that it based its holding on language in the Executive
16 Order setting aside the land for the Chilocco Indian School, which provided as
17 follows:
18 [T]he following-described tracts of country in the Indian Territory . . .
19 be, and the same are hereby, reserved and set apart for the settlement of
33
1 such friendly Indians belonging within the Indian Territory as have been
2 or who may hereafter be educated at the Chilocco Indian Industrial
3 School in said Territory.
4 Id. ¶ 5 (alteration in original) (quoting 1 Charles J. Kappler, Indian Affairs: Laws and
5 Treaties 842 (2d ed. 1904)). Based on this language, the court held that the school
6 was a dependent Indian community because it was on “a tract of land which was
7 specifically reserved for the settlement of friendly Indians at the time the Cherokee
8 outlet was ceded to the United States.” Id. ¶ 21 (emphasis added). This reasoning
9 comports with our conclusion that a dependent Indian community must be located on
10 lands set aside for the long-term settlement of an Indian community. And unlike the
11 Executive Order in C.M.G., Public Law 567 does not reserve or set aside Parcel Three
12 for “settlement” by Indians. We therefore are not troubled by the result in C.M.G.
13 {52} We do not mean to diminish the practical reality that the Wingate Schools are
14 indeed a close-knit community, in the commonly understood meaning of the word.
15 As Respondents cogently argue, the Wingate Schools are home to hundreds of Indian
16 children and school employees, and the schools serve as a focal point and gathering
17 place for many aspects of the lives of students, staff, and their families who live on
18 Parcel Three and in the surrounding areas. Again, however, our inquiry is limited to
19 whether Parcel Three was set aside for long-term settlement by an Indian
34
1 community—not to whether the BIA, in its discretion, has elected to use the land in
2 a manner that incidentally fosters the development of a community of students, staff,
3 and family members for as long as the BIA permits them to be associated with the
4 schools.
5 {53} As a final matter, the United States as amicus curiae asserts that there is an
6 “intolerable jurisdictional void” on Parcel Three for law enforcement purposes
7 because of the conflicting rulings in Dick and M.C. The Navajo Nation, also as
8 amicus curiae, disagrees, arguing that it retains full authority to prosecute all crimes
9 committed by Indians, and that the State may prosecute crimes by non-Indians against
10 other non-Indians and victimless crimes by non-Indians. The Navajo Nation also
11 contends that it has a strong interest in the welfare of the children on the school
12 property.
13 {54} Whether the United States or the Navajo Nation has jurisdiction over Parcel
14 Three is not before us, and we therefore take no position on either issue. We note,
15 however, that the divergent holdings in the past among the state and federal courts
16 have created confusion and complicated the jurisdictional framework over an area in
17 which hundreds of children, school employees, and their families live and learn. We
18 are mindful of the delicate balance between the various sovereigns and local
35
1 governments involved, and we are hopeful that they will continue to work together
2 to ensure that Parcel Three remains a safe and healthy environment for all who reside
3 there. We trust that our holding will provide some much-needed clarity, at least with
4 respect to the State’s jurisdiction over offenses committed on Parcel Three.
5 CONCLUSION
6 {55} We overrule State v. Dick and hold that Parcel Three is not a dependent Indian
7 community under § 1151. We therefore reverse the district court and the Court of
8 Appeals in both of the cases before us and remand for further proceedings in the
9 district court.
10 {56} IT IS SO ORDERED.
11 ______________________________
12 PETRA JIMENEZ MAES, Justice
13 WE CONCUR:
14
15 ___________________________________
16 BARBARA J. VIGIL, Chief Justice
17 ___________________________________
18 RICHARD C. BOSSON, Justice
36
1 ___________________________________
2 EDWARD L. CHÁVEZ, Justice
3 ___________________________________
4 CHARLES W. DANIELS, Justice
37