June 04, 2009 – State of New Mexico v. Arnold Atcitty, Norman Jim, and Michael Billy, Nos. 27,189; 27,333; & 27,940

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	June 4, 2009
NOS. 27,189; 27,333; 27,940
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ARNOLD ATCITTY,
Defendant-Appellant,
Consolidated With
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
NORMAN JIM,
Defendant-Appellant,
and

STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MICHAEL BILLY,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean, District Judge
Gary K. King, Attorney General
Andrew S. Montgomery, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
S. Erin Brunson, Assistant Appellate Defender
Santa Fe, NM
for Appellants

OPINION
BUSTAMANTE, Judge.
{1} 	The question presented in these consolidated cases is whether the State has the
authority to require an Indian, who: (1) was convicted of a sex offense in a court other
than a New Mexico state court; (2) is an Indian living in Indian country; and (3) is not
attending school or employed outside of Indian country, to comply with the State’s
Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-
1 to -10 (1999, as amended through 2007). Defendants are enrolled members of the
Navajo Nation who were convicted in federal court of sex offenses involving minors.
The State, in separate proceedings, charged Defendants with failing to register as sex
offenders as required by SORNA.
{2} 	Defendants each filed motions to dismiss for lack of jurisdiction. Defendants
asserted that the State lacked the authority to impose the registration requirements of
SORNA on an Indian living in Indian country. The district court denied the motions.
Defendants entered conditional pleas of guilty while reserving their right to appeal
jurisdictional issues. The district court thereafter entered judgments convicting each
Defendant of failing to register as a sex offender. We reverse.

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BACKGROUND
{3} 	Defendant Arnold Atcitty (Atcitty) is an enrolled member of the Navajo Nation,
which is a federally recognized Indian tribe. In 1998 Atcitty was convicted in federal
court of a sexual offense against a minor. 	Pursuant to 42 U.S.C. § 14072 (1998),
Atcitty was required to register with the FBI national sex offender database. 	The
federal court specifically ordered Atcitty to “comply with any applicable registration
requirements for sex offenders that exist in any jurisdiction in which [Atcitty]
resides.” In September 2004, Atcitty’s federal probation supervision was transferred
from the state of Colorado to San Juan County, New Mexico. At all times relevant
to this case, Atcitty (1) was domiciled on the Navajo Indian Reservation (the
Reservation) near Shiprock, New Mexico; (2) was not employed outside the
boundaries of the Reservation; and (3) was not attending school outside the
boundaries of the Reservation.
{4} 	On October 13, 2004, Atcitty was placed in a detoxification facility located
outside of the boundaries of the Reservation in Farmington, New Mexico. The record
does not indicate how long Atcitty was treated at the detoxification facility. 	On
January 19, 2005, the San Juan County Magistrate Court issued an arrest warrant for
Atcitty for his failure to register as a sex offender pursuant to Section 29-11A-4(I).
Atcitty was arrested outside the boundaries of the Reservation, in San Juan County.

3
{5} 	Defendant Norman Jim (Jim) is an enrolled member of the Navajo Nation. In
1998 Jim was convicted in federal court of a sex offense involving a minor for which
registration is required under SORNA. The federal court ordered Jim to “comply with
any applicable [sex offender] registration requirements [existing] in any jurisdiction
in which [Jim] would reside” following his release from federal prison. 	Jim was
released from prison on January 5, 2006, and was placed under the supervision of a
federal probation officer working in San Juan County. At all times relevant to this
case, Jim (1) was domiciled on the Reservation and within San Juan County; (2) was
not employed outside the boundaries of the Reservation; (3) was not attending school
outside the boundaries of the Reservation; and (4) maintained a mail box with an
address in Fruitland, New Mexico, which is located outside the boundaries of the
Reservation.
{6} 	Jim’s probation officer notified him of the requirement to register as a sex
offender within ten days of his release from prison. 	Jim failed to register as a sex
offender with the San Juan County authorities following his release from prison. Jim
likewise failed to register as a sex offender with the FBI. On February 2, 2006, the
San Juan County Magistrate Court issued an arrest warrant for Jim’s failure to register
as a sex offender pursuant to Section 29-11A-4(I). Jim was arrested on July 15, 2006,
in an area outside the boundaries of the Reservation near Fruitland, New Mexico.

4
{7} 	Defendant Michael Billy (Billy) is an enrolled member of the Navajo Nation.
In 2000 Billy was convicted in federal court of a sex offense involving a minor for
which registration is required under SORNA. 	The federal court ordered Billy to
“comply with any applicable [sex offender] registration requirements [existing] in any
jurisdiction in which [Billy] would reside” following his release from federal prison.
Billy registered as a sex offender with the San Juan County authorities and renewed
his registration annually for the years 2001 through 2004. Billy failed to renew his
registration with the San Juan County authorities in 2005 and did not register as a sex
offender with the FBI. At all times relevant to this case, Billy (1) was domiciled on
the Reservation and within San Juan County, (2) was not employed outside the
boundaries of the Reservation, and (3) was not attending school outside the
boundaries of the Reservation.
{8} 	On January 26, 2006, the San Juan County Magistrate Court issued an arrest
warrant for Billy’s failure to register as a sex offender pursuant to Section 29-11A-
4(I). 	Billy was arrested on July 7, 2006, in an area outside the boundaries of the
Reservation.
{9} 	In March 2005 the Navajo Nation enacted its own Sex Offender Registration
Act, although the law was not in effect until April 26, 2006. 	See Sex Offender
R e g i s t r a t i o n 	A c t 	o f 	2 0 0 5 , 	C A P - 2 0 - 0 6 	( a v a i l a b l e 	a t

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http://www.navajocourts.org/Resolutions/CAP-20-06SexOffender.pdf).
{10} 	The State charged Atcitty, Jim, and Billy (collectively Defendants) in separate
proceedings with failing to register as sex offenders as required by SORNA.
Defendants each filed motions to dismiss for lack of jurisdiction. Defendants asserted
that the State lacked the authority to impose the registration requirements of SORNA
on a member of the Navajo Nation living on the Reservation. 	The district court
denied the motions, although it certified the issue for interlocutory appeal in the Jim
case. The district court made the following determinations for each Defendant, with
only slight variations, in denying the motions to dismiss.
a. 	[T]he Navajo Nation did not have a sex offender registration
program . . . . until April 26, 2006;
b. 	Defendant[s’] federal offense required registration with the FBI
pursuant to 42 U.S.C.[] § 14072(b)(1) and (c);
c. 	[F]ederal law requires state authorities to register a current
address, fingerprints[,] and photograph of a person convicted of
a sexual criminal offense against a minor with the FBI’s national
database[;] if the state’s sex offender registration program is not
minimally sufficient according to the federal standards, the sex
offender must register directly with the FBI’s national database[;]
[d.] 	The federal court had jurisdiction over the Defendant[s] when it
ordered 	[Defendants] 	to 	comply 	with 	any 	registration
requirements for sex offenders that exist in any jurisdiction in
which [Defendants] would reside. . . . Defendant[s] resided in San
Juan County, New Mexico on the Navajo Indian Reservation;

6
[e.] 	[Whether the State may require a Navajo] Indian living on a
reservation located within the State’s geographical boundaries
defies traditional jurisdictional analysis in that the situs of the
crime is unclear, whether the victim(s) of the crime is/are Indian
is unclear, and that the crime arises from a statute that [this] Court
. . . has labeled a “civil, remedial, regulatory, nonpunitive law;”
[and]
[f.] 	[Because] the Navajo Nation has no sex offender registration law
or 	program 	in 	effect, 	[the 	District] 	Court 	relies 	on 	the
jurisdictional principle . . . adopted by the State . . . that “the
question has always been whether the state action infringed on the
right of reservation Indians to make their own laws and be ruled
by them[.]”
{11} 	Following entry of the district court’s orders denying Defendants’ motions to
dismiss, Atcitty and Billy signed plea agreements in which they agreed to plead guilty
to failing to register as sex offenders pursuant to SORNA, although they reserved their
right to appeal the jurisdiction issue. The district court thereafter entered its judgment
and sentence in the Atcitty and Billy cases. Atcitty and Billy timely filed notices of
appeal. Jim filed an application for interlocutory appeal, which this Court granted on
April 3, 2007. The State filed a motion to consolidate the cases on appeal, which we
hereby grant due to the factual and legal similarity among the cases.
{12} 	Defendants each assert on appeal that the district court erred in denying their
motions to dismiss because New Mexico courts lack both subject matter and personal
jurisdiction over their cases. Defendants do not dispute that they were convicted of

7
sex offenses involving minors and that such convictions trigger SORNA’s registration
requirements for New Mexico residents. See Section 29-11A-3(D)(1), (2) (defining
“sex offender” as one who is a resident of, or changes residence to, New Mexico and
has been “convicted of a sex offense pursuant to state, federal, tribal or military
law[.]”); Section 29-11A-3(E) (defining “sex offense” as encompassing a variety of
sex crimes involving children “or their equivalents in any other jurisdiction”).
Instead, Defendants contend that they are not residents of New Mexico for purposes
of enforcement of SORNA, because they are Navajo Indians living permanently on
the Reservation and they do not work or go to school off the Reservation. Defendants
maintain that they are residents of Indian country, as that term is defined in 18 U.S.C.
§ 1151 (2000), where the State’s jurisdiction over them is limited, even though the
land on which they live is geographically situated within the State of New Mexico.
Atcitty and Billy further contend that the Navajo Nation did not invite New Mexico
courts to take criminal jurisdiction over its members who violate federal or tribal sex
offender registration laws. We decline to address this latter point because it did not
form the basis for the district court’s decision to deny Defendants’ motions to dismiss.

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DISCUSSION
1. 	Standard of Review
{13} 	We review questions of subject matter jurisdiction and statutory construction
de novo. State ex rel. Children, Youth & Families Dep’t v. Andree G., 2007-NMCA-
156, ¶ 17, 143 N.M. 195, 174 P.3d 531. 	Federal statutes and case law govern
questions regarding state court jurisdiction over Indians living in Indian country.
State v. Romero, 2006-NMSC-039, ¶ 7, 140 N.M. 299, 142 P.3d 887.
2. 	Framework for Analyzing Whether the State May Require Defendants to
Comply with SORNA
{14} 	The law regarding a state’s ability to exercise regulatory authority in Indian
country has evolved over time. 	See Rice v. Rehner, 463 U.S. 713, 718 (1983)
(recognizing that the Court’s decisions in this area of the law “have not been static”).
The United States Supreme Court pronounced in Worcester v. Georgia, 31 U.S. (6
Pet.) 515, 561 (1832), that state law could “have no force” on an Indian reservation.
Over one hundred years later, the United States Supreme Court recognized that
“Congress has to a substantial degree opened the doors of reservations to state laws[.]”
Organized Vill. of Kake v. Egan, 369 U.S. 60, 74 (1962). Resolution of state/tribal
jurisdictional issues since Worcester has resulted in what can charitably be deemed
a jurisdictional maze. Robert N. Clinton, Criminal Jurisdiction Over Indian Lands:

9
A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 500-13 (1976). The
upshot of two hundred years of federal legislation, federal case law, and state case
law, is that Indian country is no longer absolutely off limits to state jurisdiction in the
sense indicated by Worcester. The mechanism used to open—or shut—the door and
the extent to which it may be opened is of necessity dependent on the legal and factual
framework present in any given situation. 	In White Mountain Apache Tribe v.
Bracker, 448 U.S. 136, 141 (1980), the Court observed that
congressional authority and the semi-independent position of Indian
tribes have given rise to two independent but related barriers to the
assertion of state regulatory authority over tribal reservations and
members. 	First, the exercise of such authority may be pre-empted by
federal law. 	Second, it may unlawfully infringe on the right of
reservation Indians to make their own laws and be ruled by them.
Id. at 142 (internal quotation marks and citations omitted).
{15} 	The seminal case in the modern era dealing with the infringement prong is
Williams v. Lee, 358 U.S. 217, 220 (1959). 	Williams noted the retreat from the
absolutist position of Worcester “where essential tribal relations were not involved
and where the rights of Indians would not be jeopardized” but also asserted that “the
basic policy of Worcester has remained.” 358 U.S. at 219. In the end the Court stated
that “absent governing Acts of Congress, the question has always been whether the
state action infringed on the right of reservation Indians to make their own laws and

10
be ruled by them.” Id. at 220. The question is not considered in a vacuum. Rather,
consideration of the issues starts with “the assumption that the [s]tates have no power
to regulate the affairs of Indians on a reservation.” Id. As the Court noted in Bracker,
“[w]hen on-reservation conduct involving only Indians is at issue, state law is
generally inapplicable, for the [s]tate’s regulatory interest is likely to be minimal and
the federal interest in encouraging tribal self-government is at its strongest.” 448 U.S.
at 145. 	See United States v. Peltier, 344 F. Supp. 2d 539, 546 (E.D. Mich. 2004)
(holding that state courts may not issue warrants for searches of tribal members on
tribal land in Indian country); Cohen’s Handbook of Federal Indian Law, § 6.03[1][a]
(2005 ed.).
{16} 	The initial presumption that state jurisdiction does not extend to Indian country,
and the strong federal interest in tribal development and self-government affects the
manner in which federal legislation relied upon to assert state jurisdiction is
interpreted. As noted in Rice, 463 U.S. at 719-20, “[w]hen we determine that tradition
has recognized a sovereign immunity in favor of the Indians in some respect, then we
usually are reluctant to infer that Congress has authorized the assertion of state
authority in that respect ‘except where Congress has expressly provided that State
laws shall apply.’” (citation omitted). 	Further, waiver or repeal by implication of
tribal self-government and freedom from state regulation is disfavored. 	Bryan v.

11
Itasca County, 426 U.S. 373, 386 (1976) (holding that the enactment of Public Law
280, 28 U.S.C. § 1360 (1984), by Congress did not work to extend state regulatory
authority over Indian tribes).
{17} 	It can generally be stated that no states have general regulatory authority over
Indian country. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209
(1987) (holding that California did not have the authority to regulate or criminally
punish on-reservation bingo games which did not comply with state limitations); see
also Bryan, 426 U.S. at 375 n.2. Some states have general criminal jurisdiction in
Indian country pursuant to Public Law 280. New Mexico is not a Public Law 280
state. Cabazon Band of Mission Indians, 480 U.S. at 208.
{18} 	The legal landscape in New Mexico is similar to the federal history noted
above. In State v. Begay, 63 N.M. 409, 412, 320 P.2d 1017, 1019 (1958), overruled
on other grounds by State v. Warner, 71 N.M. 418, 379 P.2d 66 (1963), our Supreme
Court 	announced 	an 	absolutist 	position 	that 	the 	New 	Mexico 	Constitution’s
exclusionary clause, Art. XXI, Sec. 2, denied the state all jurisdiction over Indian land
and tribes until Indian title was extinguished. Our Supreme Court retreated from that
position in Your Food Stores, Inc. (NSL) v. Village of Española, 68 N.M. 327, 330,
361 P.2d 950, 953 (1961) to allow exercise of jurisdiction where “specifically granted
by Act of Congress, or sanctioned by decisions of the Supreme Court of the United

12
States.” In Your Food Stores, Inc. (NSL), the Supreme Court voided an attempt by a
municipality to annex property leased by the Santa Clara Pueblo to a private, non-
Indian merchant. The Court noted with approval the language of Williams, requiring
an express grant of power by Congress to the states to exercise jurisdiction in Indian
country. Your Food Stores, Inc. (NSL), 68 N.M. at 332, 361 P.2d at 954.
{19} 	In State v. Warner, 71 N.M. 418, 421, 379 P.2d 66, 68 (1963), our Supreme
Court held that state courts could try cases involving crimes committed on Indian land
by non-Indians. 	Relying on Williams, and other precedents, the Supreme Court
decided that trying non-Indians in state court “would not affect the authority of the
tribal counsel over reservation affairs and, therefore, would not infringe on the right
of the Indians to govern themselves.” Warner, 71 N.M. at 421-22, 379 P.2d at 68.
{20} 	In Chino v. Chino, 90 N.M. 203, 206, 561 P.2d 476, 479 (1977), applying both
the preemptive approach and the infringement test, our Supreme Court held New
Mexico courts did not have jurisdiction to hear an action for forcible entry and
detainer involving a home situated on fee patent land located within the exterior
boundaries of the Mescalero Apache Indian Reservation. 	The Supreme Court’s
preemption analysis is to the point: in light of New Mexico’s Enabling Act, which
disclaims jurisdiction over Indians, the Tribe’s treaty submitting only to the authority
of the United States precludes “the state from exercising jurisdiction over property

13
lying within the reservation boundaries.” Id.
{21} 	With regard to the infringement test, the Court stated:
When the land lies within a reservation, enforcement of the owner's
rights to such property by the state court would infringe upon the
governmental powers of the tribe, whether those owners are Indians or
non-Indians. Civil jurisdiction of lands within the reservation remains
with the tribe. Even though the Mescalero tribal law makes no provision
for a wrongful entry and detainer action, the state may not assume
jurisdiction without congressional or tribal authorization. 	Indian
customs and traditions may dictate different approaches than that which
the state may use. For a state to move into areas where Indian law and
procedure have not achieved the degree of certainty of state law and
procedure would deny Indians the opportunity of developing their own
system.
Id.
{22} 	Finally, in Romero, our Supreme Court held that the State did not have
jurisdiction to prosecute crimes committed by the defendant Indians on private fee
land located within the exterior boundaries of the defendant’s respective Pueblos. The
Romero opinion apparently took it as a given that the State would have no jurisdiction
if the property where the crimes occurred qualified as “Indian country” within the
meaning of 18 U.S.C. § 1151, since that was the only issue it identified for discussion.
Romero, 2006-NMSC-039, ¶ 7. 	Relying in part on the canon that ambiguities in
statutes are interpreted to the benefit of Indians, our Supreme Court held that private,
non-Indian owned fee land within the exterior boundaries of the Pueblos was “Indian

14
country” and that no Congressional action with regard to the property could be
interpreted to clearly and explicitly have changed the status of the land. Id. ¶¶ 23-25.
Accord, 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).
{23} 	The State argues that the jurisdictional barrier described above has been
overcome by the federal legislation which prompted New Mexico’s adoption of its
SORNA and by recognition that the crime occurred off the reservation. We respond
to each argument in turn.
3. 	Federal Sex Offender Registration Legislation
{24} 	In 	1994 	Congress 	established 	a 	nationwide 	program 	for 	sex 	offender
registration know as the Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Program, which is codified at 42 U.S.C. § 14071 (1998). The Jacob
Wetterling Act encourages states to enact sex offender registration and community
notification laws by conditioning federal funding for crime prevention on the
existence of such laws. 	See 42 U.S.C. § 14071(g)(2)(A) (“A [s]tate that fails to
implement the program as described in this section shall not receive 10 percent of the
funds that would otherwise be allocated to the [s]tate under [s]ection 3756 of this
title.”). In addition, the Jacob Wetterling Act sets forth detailed requirements for state

15
sex offender registration programs. 	See id. § 14071(b). 	The statute also requires
participating states to share registration information with law enforcement agencies
having jurisdiction where the sex offender expects to reside and to transmit
registration information to the FBI and a National Sex Offender Registry. 	Id. §
14071(b)(2). A sex offender who knowingly fails to register under a state program
“shall be subject to criminal penalties in any [s]tate in which the [sex offender] has so
failed.” Id. § 14071(d).
{25} 	In 1996 the Jacob Wetterling Act was amended, in what came to be known as
“Megan’s Law,” to require states to develop a program to disseminate information to
the community about registered sex offenders. Id. § 14071(e). Megan’s Law allowed
broad discretion to the states in the design of their individual programs.
{26} 	New Mexico first enacted its Sex Offender Registration Act (SORA) in 1995.
State v. Druktenis, 2004-NMCA-032, ¶ 17, 135 N.M. 223, 86 P.3d 1050. SORA, like
the sex offender registration statutes in most states, was a version of the Jacob
Wetterling Act. Id. In 1999 the New Mexico Legislature amended SORA, which is
now (with the addition of Notification) known as SORNA. Id. ¶ 6. SORNA provides
that “[a] sex offender who willfully or knowingly fails to comply with [SORNA’s]
registration requirements . . . is guilty of a fourth degree felony[.]” Section 29-11A-
4(N); see Druktenis, 2004-NMCA-032, ¶ 22.

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{27} 	A plain reading of the Jacob Wetterling Act and Megan’s Law demonstrates
that Congress intended for the states to be the primary information gatherers and
compliance enforcers for a national sex offender registration regime. 	See 42 U.S.C.
§§ 14071, 14072. The Jacob Wetterling Act uses the state residency of a sex offender
as a key factor in determining the registration requirements with which the sex
offender must comply. See, e.g., id. § 14071(b)(5) (providing that a sex offender who
moves to a new state “shall report the change of address to the responsible agency in
the [s]tate the person is leaving, and shall comply with any registration requirement
in the new [s]tate of residence”). 	Where a state does not meet the minimum
requirements of Megan’s Law, the FBI fills in the “gap” in coverage by accepting
direct registration from sex offenders. Id. § 14072(c). Neither the Jacob Wetterling
Act or Megan’s Law mentions or addresses Indian tribes, tribal jurisdiction, or state
jurisdiction in Indian country in any way. 	In addition, the State has not cited any
legislative history indicating any consideration of the way the two acts affect or would
operate in Indian country.
{28} 	The specific question presented then is whether the two statutes can be deemed
an express statement by Congress that state sex offender registration laws shall apply
in Indian country. We hold that they cannot. The language of the statutes betrays no
indication that Congress intended the term “resident” by itself to override historically

17
recognized and accepted limits on the reach of state criminal and regulatory law in
Indian country. 	The type of language specifically referring to Indians and Indian
tribes which would support a conclusion that Congress intended to override tribal
sovereignty is simply missing. 	The state points to the broad nature of the term
“resident” and the fact that Indians are for most purposes residents of the State they
live in to argue that Congress’ intent was to be all-inclusive. This approach, however,
is the opposite of our normal mode of interpretation of statutes affecting Indians and
Indian tribes, and we decline to indulge it. United States v. Dion, 476 U.S. 734, 739-
40 (1986) (“What is essential is clear evidence that Congress actually considered the
conflict between its intended action on the one hand and Indian treaty rights on the
other, and chose to resolve that conflict by abrogating the treaty.”); Bryan, 426 U.S.
at 392-93 (waiver or repeal by implication of tribal freedom from state regulation is
disfavored); McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 174 (1973)
(doubtful expressions in treaties are to be resolved in favor of Indians); Williams, 358
U.S. at 221 (“Significantly, when Congress has wished the [s]tates to exercise this
power [civil or criminal jurisdiction in Indian country] it has expressly granted them
the jurisdiction which Worcester . . . had denied.”).
{29} 	There is only one other state case addressing the issue—State v. Jones, 729
N.W.2d 1 (2007). 	Though its holding is not directly applicable in New Mexico

18
because it issues from a Public Law 280 state, it provides insight as to the reach of the
Jacob Wetterling Act and Megan’s Law. In Jones, a sharply divided court held that
Minnesota could enforce its version of SORNA against reservation Indians because
it was a criminal/prohibitary provision covered by the general grant of criminal
jurisdiction under Public Law 280. Jones, 729 N.W.2d at 4-5, 12. New Mexico is not
a Public Law 280 state and that analysis does not apply here. In accordance with the
broad understanding that Public Law 280 does not grant states civil or regulatory
jurisdiction in Indian country, the Court in Jones assumed that Minnesota could not
enforce its SORNA if the statute was deemed a civil/regulatory provision. 	Id. at 5.
Also, it is notable that nowhere in the majority or concurring opinions is there any hint
of reliance on the Jacob Wetterling Act or Megan’s Law as the source of express
Congressional permission to enforce the registration statute in Indian country.
{30} 	At least one commentator has opined that
While the litigation [in Jones had] called attention to what many
observers considered to be a gap in the nation’s ability to track sex
offenders and likely spawned congressional attention to the matter in
SORNA [the Adam Walsh Child Protection and Safety Act], the law’s
enactment implicitly conceded the defendant’s argument in State v.
Jones and, in any event, SORNA now occupied the field, imposing a
clear federal mandate of registration.
Virginia Davis & Kevin Washburn, Sex Offender Registration in Indian Country, 6
Ohio St. J. Crim. L. 3, 13 (2008).

19
{31} 	We agree with this assessment. The Adam Walsh Child Protection and Safety
Act, 42 U.S.C. 16911 2006), provides avenues for Indian tribes to become
jurisdictions that participate in the national sex offender registration regime. See id.
§ 16911(10)(H) (providing that a federally recognized Indian tribe may be included
as a jurisdiction “[t]o the extent provided and subject to the requirements of [S]ection
16927 of this title”). An Indian tribe may elect to participate as a jurisdiction under
the Adam Walsh Act by passing a “resolution or other enactment of the tribal council
or comparable governmental body.” Id. § 16927(a)(1)(A). Although the Adam Walsh
Act gives Indian tribes the opportunity to become participating jurisdictions, the
remaining provisions of Section 16927 evince Congress’ intent to ensure territorial
coverage by other jurisdictions should a tribe prove unable or unwilling to become a
participating jurisdiction. For example, a tribe may
elect to delegate its functions under this part to another jurisdiction or
jurisdictions within which the territory of the tribe is located and to
provide access to its territory and such other cooperation and assistance
as may be needed to enable such other jurisdiction or jurisdictions to
carry out and enforce the requirements of this part.
Id. § 16927(a)(1)(B) (emphasis added). The Adam Walsh Act imputes to a tribe the
election to delegate described in Section 16927(a)(1)(B) if the tribe is: (1) subject to
the law enforcement jurisdiction of a state under 18 U.S.C. § 1132 (Public Law 280);
(2) the tribe does not make an election to participate by July 27, 2007, or rescinds an

20
election to participate; or (3) “the Attorney General determines that the tribe has not
substantially implemented the requirements of this part and is not likely to become
capable of doing so within a reasonable amount of time.” 42 U.S.C. § 16927(a)(2)(C).
The Adam Walsh Act further provides that an Indian tribe subject to the Act “is not
required to duplicate functions under this part which are fully carried out by another
jurisdiction or jurisdictions within which the territory of the tribe is located.” Id. §
16927(b)(1) (emphasis added). Finally, the Adam Walsh Act allows a participating
tribe to cooperate with such a jurisdiction or jurisdictions by sharing or delegating
functions with respect to sex offenders subject to the tribe’s jurisdiction. Id. §
16927(a)(2).
{32} 	The foregoing provisions of the Adam Walsh Act demonstrate that Congress
recognized that some Indian tribes are willing and able to become participating
jurisdictions in the national sex offender registration regime. However, in the event
that an Indian tribe cannot or chooses not to become a full participating jurisdiction,
Congress has set forth strict mechanisms to ensure that territorial coverage is achieved
by 	other 	jurisdictions, 	either 	with 	or 	without 	the 	tribe’s 	consent. 	Id. 	§§
16927(a)(1)(B), (a)(2)(A)-(C), (b)(1)-(2). 	Significantly, Congress has expressly
mandated that the jurisdictions that must provide such coverage are those “within
which the territory of the tribe is located.” 	Id. §§ 16927(a)(1)(B), (b)(1)-(2). This

21
language demonstrates Congress’ intent to have the states maintain full, statewide
coverage when a tribe within the state does not elect to become a participating
jurisdiction. Moreover, Congress has lowered the barrier of tribal sovereignty in this
context by directing tribes that delegate their functions as participating jurisdictions,
either directly or by imputation, to “provide access to [their] territory and such other
cooperation and assistance as may be needed to enable such other jurisdiction or
jurisdictions to carry out and enforce the requirements of this part.” 	Id. 	§
16927(a)(1)(B).
{33} 	The type of specificity found in the Adam Walsh Act is what the authorities
look for to find an express statement from Congress allowing state assertion of
jurisdiction in Indian country. 	This specificity is what is lacking in the Jacob
Wetterling Act and Megan’s Law.
4. 	The Locus of the Crime
{34} 	The State argues that the crime occurred off of the Navajo reservation in that
the statute requires sex offenders to personally appear at the Sheriff’s office in each
county to register. The state can generally enforce its criminal and civil laws against
Indians for conduct occurring outside Indian country. See Quintana, 2008-NMSC-
012, ¶ 4.
{35} 	It is unclear where the crime occurred. The federal law the state relies upon

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seems to support finding the locus at the sheriff’s office. Johnston v. United States,
351 U.S. 215, 220 (1956) (where the crime charged is a failure to do a legally required
act, the place fixed for its performance fixes the situs of the crime”). However, the
only case actually dealing with registration requirements in the context of Indian
country states that the crime occurred on the reservation where the defendant resided.
Jones, 729 N.W.2d at 4.
{36} 	We do not need to decide the issue, however, because there can only be a crime
if the State has the power to force Defendants to appear at the sheriff’s office to
register. 	If the State’s regulatory authority does not reach into Indian country to
impose a duty, failure to comply with the duty cannot be a crime. We have already
held that the State has no basis to enforce its sex offender registration requirements
in Indian country under the circumstances presented here.
CONCLUSION
{37} 	We conclude that the State’s application of SORNA to Defendants was not
authorized by federal law and thus infringed on the Navajo Nation’s tribal
sovereignty. We therefore reverse the district court’s denial of Defendants’ motions
to dismiss. The convictions of Atcitty and Billy for failure to register are reversed.
We remand case No. 27,333 for further proceedings consistent with this opinion.
{38} 	IT IS SO ORDERED.

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MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
CELIA FOY CASTILLO, Judge
RODERICK T. KENNEDY, Judge