October 29, 2019- State of New Mexico v. Curtis Bitsui, No. A-1-CA-36108

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. No. A-1-CA-36108	4
CURTIS BITSUI,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY	7
Pedro G. Rael, District Judge	8
Hector H. Balderas, Attorney General	9
Emily Tyson-Jorgenson, Assistant Attorney General	10
Eran Sharon, Assistant Attorney General	11
Santa Fe, NM	12
for Appellee	13
Navajo Nation Department of Justice	14
Stanley M. Pollack	15
Window Rock, AZ	16
for Appellant	17
MEMORANDUM OPINION	18
BOGARDUS, Judge.	19
{1} In this civil appeal, Curtis Bitsui challenges the district court’s order enjoining	20
him from interfering with access to and use of an acéquia that runs through the land	21
in which he holds a beneficial interest. Bitsui advances two arguments on appeal:	22
Court of Appeals of New Mexico
Filed 10/29/2019 9:54 AM

2
(1) the district court lacked subject matter jurisdiction because the actions	1
complained of occurred on land that is Indian Country as defined in 18 U.S.C.	2
§ 1151(c) (2018); and (2) the district court erred in not dismissing the action pursuant	3
to Rule 1-019 NMRA because the United States is an indispensable party in an action	4
affecting the legal title of the same land. Concluding that the district court had	5
subject matter jurisdiction and that the United States is not an indispensable party,	6
we affirm.	7
BACKGROUND	8
{2} The unique facts of this case present yet another example of the difficulty in	9
determining whether New Mexico state courts can properly exercise subject matter	10
jurisdiction over a civil matter that arises in what might be Indian Country.	11
{3} The underlying facts begin with a dispute between Bitsui, an enrolled member	12
of the Navajo Nation, and the San Jose de la Cienega Community Ditch Association	13
(the Association). After at least seven years of disagreement, during which the	14
negotiations between Bitsui and the Association failed, the State filed a civil	15
complaint in state district court seeking injunctive relief against Bitsui. The	16
complaint asserted that Bitsui was interfering with the Association’s rights to use the	17
San Jose de la Cienega Acéquia1 (the Acéquia), pursuant to NMSA 1978, Section	18
1The San Jose de la Cienega Acéquia is alternatively referred to in the record
proper as the San Jose de la Cienega Community Ditch.

3
73-2-4 (1851-1852); NMSA 1978, Section 73-2-5 (2005); NMSA 1978, Section 73-	1
2-6 (1851-1852); and NMSA 1978, Section 73-2-64 (2005). Specifically, the State	2
maintained that Bitsui was diverting water from the Acéquia, destroying the Acéquia	3
channel, and refusing the Association’s members maintenance-related access to the	4
Acéquia.	5
{4} Bitsui moved to dismiss the complaint for lack of subject matter jurisdiction,	6
arguing that the actions complained of occurred on land considered Indian Country	7
under § 1151(c). In relevant part, Indian Country is defined as “all Indian allotments,	8
the Indian titles to which have not been extinguished, including rights-of-way	9
running through the same.” § 1151(c); see Tempest Recovery Servs., Inc. v. Belone,	10
2003-NMSC-019, ¶ 17, 134 N.M. 133, 74 P.3d 67 (overruling prior New Mexico	11
Supreme Court precedent to conclude that § 1151 defines Indian Country	12
jurisdiction both criminally and civilly in New Mexico). Bitsui further argued that	13
the United States has sole jurisdiction to adjudicate an offense allegedly committed	14
in Indian Country. See 18 U.S.C. § 1152 (2018) (“Except as otherwise expressly	15
provided by law, the general laws of the United States as to the punishment of	16
offenses committed in any place within the sole and exclusive jurisdiction of the	17
United States, except the District of Columbia, shall extend to the Indian	18
[C]ountry.”).	19

4
{5} In his motion, Bitsui explained the historical underpinnings of his contention	1
that the land on which the State sought to enjoin his actions is within Indian Country.	2
Specifically, Bitsui claimed the land was allotted in trust by the United States in	3
accordance with a July 4, 1884 act of Congress, otherwise known as the Indian	4
Homestead Act, to the widow and heirs of Francisco Pieseto, to whom Bitsui is a	5
successor in interest. Consequently, Bitsui concluded it is an “Indian allotment”	6
under the federal definition of Indian Country. Bitsui attached to his motion a copy	7
of the instrument conveying the land interest, dated January 21, 1953, and a Bureau	8
of Indian Affairs title status report as support for his arguments.	9
{6} Responding to Bitsui’s motion to dismiss, the State first set forth the history	10
of the Acéquia. The State presented survey plats showing that the Acéquia was in	11
existence before the United States’ acquisition of this territory from Mexico and that	12
the Office of the State Engineer has given the Acéquia a priority date of 1805, which	13
makes it an “ancient acéquia” under the statutes of New Mexico. Citing to Section	14
73-2-6, which provides that “[t]he course of ditches or ac[é]quias established prior	15
to July 20, 1851, shall not be disturbed[,]” the State argued that the issue is a matter	16
of state law over which the district court has jurisdiction.	17
{7} Next, the State set forth the history of Mr. Pieseto’s application for the land.	18
The State presented Mr. Pieseto’s original application and affidavit for the land,	19
which were filed under the Stock-Raising Homestead Act, 43 U.S.C. §§ 291-298	20

5
(repealed 1976). Additionally, the State presented a letter from the Special	1
Allocating Agent for the Eastern Navajo Indian Agency, Chas. E. Roblin, which	2
stated that identifying Mr. Pieseto as a member of the Navajo Nation was	3
unnecessary because Mr. Pieseto could enter and hold the land as a United States	4
citizen. The State also presented a letter to Mr. Roblin that indicated that the	5
application was then linked to the Indian Homestead Act of July 4, 1884, when Mr.	6
Pieseto neglected to remit the filing fees normally charged for applications under the	7
general homestead laws. After Mr. Pieseto’s death, his widow, Pablita Pieseto,	8
applied to reinstate the entry and executed a “stock-raising homestead final proof,”	9
which the State presented. The State also presented a letter to Ms. Pieseto from the	10
Bureau of Land Management acknowledging that all requirements for a	11
“stock[-]raising homestead entry” had been completed, a final certificate was issued,	12
and her case was approved for patenting.	13
{8} The State also relied on the language of the patent, which provided that the	14
land was conveyed	15
subject to any vested and accrued water rights for mining, agricultural,	16
manufacturing, or other purposes, and rights to ditches and reservoirs	17
used in connection with such water rights, as may be recognized and	18
acknowledged by the local customs, laws, and decisions of courts[.]	19
The State argued that this language meant “[t]he patent not only excludes these rights	20
to the water and ditches from the ‘bundle of sticks’ which the federal government	21

6
holds in trust, but it specifically places the ac[é]quia ditch and its easement under	1
the laws and local customs of the State of New Mexico[.]”	2
{9} Following a hearing on Bitsui’s motion to dismiss, the district court issued a	3
decision and order denying the same. The decision and order concluded that Bitsui’s	4
jurisdictional argument failed for three reasons. First, the twenty-five-year Indian	5
trust period ended twenty-five years after its creation by operation of the deed itself.	6
Second, even if the land were still held in trust, the language of the patent makes it	7
clear that the land is subject to other uses existing at the time the deed was issued,	8
which are outside the trust. Third, the patent created a trust for a United States citizen	9
because the original applicant applied as a United States citizen, not as a tribal	10
member.	11
{10} In a second motion to dismiss, Bitsui again raised the subject matter	12
jurisdiction issue and also argued that dismissal was proper because of the State’s	13
failure to join the United States as an indispensable party under Rule 1-019. In	14
response, the State again set forth the history and language of the patent in arguing	15
that the district court had subject matter jurisdiction. The State also argued that the	16
cases Bitsui cited for the proposition that the United States is an indispensable party	17
had no bearing on whether the State could obtain an injunction to prevent Bitsui’s	18
interference with the Acéquia. The district court likewise denied Bitsui’s second	19
motion to dismiss.	20

7
{11} The district court then conducted a hearing on the merits of the case. At the	1
hearing, the court first heard from the State’s witnesses: Antonio Trujillo, the former	2
mayordomo of the Association, and Leon Tafoya, the then-current mayordomo of	3
the Association. Their testimony established the following. Construction of the	4
Acéquia began in 1802 and was completed in 1805 or 1806. The Acéquia has been	5
in continuous use since it was constructed. A mayordomo is responsible for ensuring	6
that the ditches are clean and for assigning water to people on designated days. The	7
Association conducts yearly maintenance that involves cleaning the ditch and	8
removing accumulated brush and debris. Ms. Pieseto had contracted with the	9
Association to use the Acéquia to irrigate while she lived on the land. The	10
mayordomos did not have any issues regarding access to the property for	11
maintenance until Bitsui interfered with that maintenance by locking the gate and	12
placing a no trespassing sign on a fence over the Acéquia.	13
{12} The district court also heard from Bitsui’s witness, Maryland Begay, an	14
employee of the Division of Land Title and Records of the Southwest Region of the	15
Bureau of Indian Affairs. Ms. Begay provided a title status report for Bitsui’s land	16
that was completed the day before the hearing. The title status report indicated Bitsui	17
was one of sixty-six unique interest holders who held an undivided interest in the	18
approximately 177-acre parcel of land. The title status report further indicated that	19
the parcel was an Indian allotment held in trust by the United States. Within the	20

8
parcel, Bitsui has a one-acre residential lease. Bitsui did not put on evidence to rebut	1
the evidence that he interfered with the maintenance of the Acéquia, nor did he	2
challenge the testimony regarding the creation and continuous use of the Acéquia.	3
{13} Following the hearing, the district court entered an order titled “Decision	4
Regarding Water Access” (the Decision) that enjoined Bitsui from	5
stopping or preventing ac[é]quia users with water rights therein in	6
exercising their limited right to enter the subject property in exercising	7
their right to use their secured water rights and the ac[é]quia or ditches	8
in which the water runs and to maintain the same to the extent . . .	9
reasonably necessary to exercise such rights.	10
The Decision noted that “the issues before [the district court] d[id] not affect the	11
status of the title to the property itself, but only whether an easement that existed at	12
the time that the patent was issued may be enforced in [s]tate [c]ourt.” Bitsui appeals	13
the Decision.	14
DISCUSSION	15
I. Subject Matter Jurisdiction	16
{14} Bitsui argues that the district court erred by finding that the land was not held	17
in trust by the United States. Rather, Bitsui contends that the patent for the land was	18
issued pursuant to the Indian Homestead Act, thereby held in trust for an initial	19
period of twenty-five years that has been indefinitely extended, and that the district	20
court consequently did not have jurisdiction over this matter because state courts	21
lack jurisdiction over matters arising on land defined as Indian Country. The State	22

9
responds by arguing that the patent for the land was issued under the Stock-Raising	1
Homestead Act and that the trust created by the patent expired after twenty-five	2
years; therefore, the land is not Indian Country and the district court had subject	3
matter jurisdiction. Alternatively, the State argues that even if the patent is deemed	4
to have created an indefinite allotment, the express terms of the patent permit state	5
jurisdiction over the Acéquia.	6
{15} “This Court reviews subject matter jurisdiction de novo.” Weddington v.	7
Weddington, 2004-NMCA-034, ¶ 13, 135 N.M. 198, 86 P.3d 623. Here, we need not	8
definitively decide whether the land constitutes Indian Country under § 1151(c) to	9
resolve this matter. Instead, we assume, without deciding, that the land is Indian	10
Country under § 1151(c) and our analysis proceeds from this assumption. We do so	11
based upon our determination that under the circumstances of this case the district	12
court could exercise jurisdiction even if the land was Indian Country.	13
{16} “Federal statutes and case law govern questions regarding state court	14
jurisdiction over Indians living in Indian [C]ountry[,]” State v. Atcitty, 2009-NMCA-	15
086, ¶ 13, 146 N.M. 781, 215 P.3d 90, and our Supreme Court has stated that “[t]he	16
test for determining whether a state court has jurisdiction over causes of action	17
involving Indian matters is set forth in Williams v. Lee, 358 U.S. 217 . . . (1959).”	18
Found. Reserve Ins. Co., Inc. v. Garcia, 1987-NMSC-024, ¶ 6, 105 N.M. 514, 734	19
P.2d 754. This Court has since reaffirmed New Mexico’s “reliance on the Williams	20

10
infringement test to determine state court jurisdiction over matters arising in Indian	1
[C]ountry[.]” Hinkle v. Abeita, 2012-NMCA-074, ¶ 23, 283 P.3d 877; see Tempest	2
Recovery Servs. Inc., 2003-NMSC-019, ¶¶ 15-16 (applying the Williams	3
infringement test to conclude the state possessed “concurrent jurisdiction” with the	4
tribal court because litigating the claim in state court did not infringe on tribal	5
sovereignty); Chino v. Chino, 1977-NMSC-020, ¶ 13, 90 N.M. 203, 561 P.2d 476	6
(applying the Williams infringement test and concluding that an action questioning	7
“occupancy and ownership of land . . . within a reservation . . . would infringe upon	8
the governmental powers of the tribe”).	9
{17} Here, however, neither party’s briefing to this Court addressed the	10
infringement test set forth in Williams. Accordingly, we ordered simultaneous	11
supplemental briefing from the parties regarding the application of the Williams	12
infringement test.2 Having reviewed the parties’ supplemental briefing, we apply the	13
2Despite our order asking for supplemental briefing only on the application of
the Williams infringement test, Bitsui also made arguments against state court
jurisdiction under the “preemptive approach” identified in Chino, 1977-NMSC-020,
¶ 11. To the extent that Bitsui argues that the “preemptive approach” arises out of
the Williams infringement test, such an argument is unsupported by the authority he
cites. See White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980)
(stating that the two identified “independent but related barriers to the assertion of
state regulatory authority over tribal reservations and members” arise from
Congress’s broad authority under the Indian Commerce Clause and the “semi-
independent position” of tribes). Accordingly, we decline to further address this
argument. In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d
1329 (“Issues raised in appellate briefs which are unsupported by cited authority will
not be reviewed by us on appeal.”).

11
right for any reason doctrine and affirm the district court’s order based on the	1
application of the Williams infringement test. See Maralex Res., Inc. v. Gilbreath,	2
2003-NMSC-023, ¶ 13, 134 N.M. 308, 76 P.3d 626 (“[A]n appellate court will	3
affirm the district court if it is right for any reason and if affirmance is not unfair to	4
the appellant.” (internal quotation marks and citation omitted)). We explain.	5
{18} In Williams, the United States Supreme Court set forth its test in the following	6
terms: “Essentially, absent governing Acts of Congress, the question has always	7
been whether the state action infringed on the right of reservation Indians to make	8
their own laws and be ruled by them.” 358 U.S. at 220. Here, the parties have not	9
directed us to any congressional act that governs whether the district court had	10
subject matter jurisdiction over this matter, and we are not aware of any. Therefore,	11
we next consider whether the district court’s exercise of subject matter jurisdiction	12
in this case infringed on that right.	13
{19} In applying the infringement test from Williams, New Mexico courts have	14
considered the following factors: “(1) whether the parties are Indians or non-Indians;	15
(2) whether the cause of action arose within the Indian reservation; and (3) . . . the	16
nature of the interest to be protected.” Tempest Recovery Servs., Inc., 2003-NMSC-	17
019, ¶ 14 (internal quotation marks and citation omitted). As to the first factor, it is	18
undisputed that Bitsui is an Indian and the State is a non-Indian entity.	19

12
{20} Regarding the second factor, although we have assumed that the land upon	1
which Defendant’s alleged activities were conducted is Indian Country under	2
§ 1151(c), neither party asserts, and our review of the record does not suggest, that	3
this cause of action arose within the exterior boundaries of any Indian reservation.	4
Cf. Chino, 1977-NMSC-020, ¶ 13 (“When the land lies within a reservation,	5
enforcement of the owner’s rights to such property by the state court would infringe	6
upon the governmental powers of the tribe, whether those owners are Indians or non-	7
Indians.”).	8
{21} Regarding the third factor, Bitsui argues that both he and the Navajo Nation	9
“have numerous important interests . . . that were infringed upon by the [district]	10
court’s exercise of jurisdiction[.]” Those interests were identified as:	11
the integrity of the territorial jurisdiction of the [Navajo] Nation; the	12
right of the [Navajo] Nation to regulate the use of water within its	13
territorial boundaries; the power of the Navajo Nation courts to enforce	14
the [Navajo] Nation’s laws; and the right of . . . Bitsui to have matters	15
concerning the use of his land adjudicated in those courts pursuant to	16
Navajo law.	17
Having fully reviewed Bitsui’s arguments, we are not persuaded that these interests	18
are infringed upon by the state district court’s exercise of jurisdiction over this	19
matter.	20
{22} We recognize that New Mexico courts should not engage in determining tribal	21
court jurisdiction. Hinkle, 2012-NMCA-074, ¶ 19. Accordingly, nothing in this	22
opinion involves jurisdiction of the Navajo Nation’s courts nor their power to	23

13
enforce their laws. Furthermore, this dispute does not involve regulation of water	1
nor does it involve Bitsui’s use of his land. Rather, the right to the water has already	2
vested in the Association. The Association now seeks enforcement of that right,	3
which predates Bitsui’s interest in the land. Our reasoning is supported by the	4
express language of the patent, which provided that the land was	5
subject to any vested and accrued water rights for mining, agricultural,	6
manufacturing, or other purposes, and rights to ditches and reservoirs	7
used in connection with such water rights, as may be recognized and	8
acknowledged by the local customs, laws, and decisions of courts[.]	9
(Emphasis added.) Based on this language, Bitsui’s interest in the land is subject to	10
the Association’s pre-existing right, which the Association could enforce under	11
applicable state law. Accordingly, we conclude that the state district court’s exercise	12
of subject matter jurisdiction over this matter does not infringe “on the right of	13
reservation Indians to make their own laws and be ruled by them.” Williams, 358	14
U.S. at 220.	15
{23} As a final matter, we must ensure that this case does not present a	16
circumstance where a tribal court would have exclusive jurisdiction. See Garcia v.	17
Gutierrez, 2009-NMSC-044, ¶¶ 3, 27, 35, 147 N.M. 105, 217 P.3d 591 (recognizing	18
the possibility of non-exclusive concurrent state and tribal jurisdiction, exclusive	19
state jurisdiction, and exclusive tribal jurisdiction). The New Mexico Supreme Court	20
has recognized exclusive tribal jurisdiction in three situations: (1) “where an action	21
involves a proprietary interest in Indian land”; (2) “when an Indian sues another	22

14
Indian on a claim for relief recognized only by tribal custom and law”; or (3) “when	1
an Indian is being sued by a non-Indian over an occurrence or transaction arising in	2
Indian [C]ountry[.]” Found. Reserve Ins. Co., Inc., 1987-NMSC-024, ¶ 10. For the	3
reasons that follow, we conclude that this case does not present any of those	4
situations.	5
{24} As to the first situation, our Supreme Court cited its decision in Chino as an	6
example of a situation in which exclusive tribal jurisdiction would exist. Found.	7
Reserve Ins. Co., Inc., 1987-NMSC-024, ¶ 10. The Chino Court addressed claims	8
for forcible entry and wrongful detainer of a home located within the boundaries of	9
the Mescalero Apache Reservation. 1977-NMSC-020, ¶¶ 2-3. Here, unlike the facts	10
in Chino, the land at issue is not located within the exterior boundaries of an Indian	11
reservation. Therefore, we cannot say that this case involves a type of proprietary	12
interest in Indian land for which exclusive tribal jurisdiction exists.	13
{25} Further, this is not a lawsuit between Indians under tribal custom or law. As	14
to the third situation, our Supreme Court cited to the United States Supreme Court’s	15
decision in Williams as an example of a situation in which exclusive tribal	16
jurisdiction would exist. See Found. Reserve Ins. Co., Inc., 1987-NMSC-024, ¶ 10.	17
In Williams, the Court was presented with a situation in which a non-Indian sued an	18
Indian over a transaction that occurred on the reservation. 358 U.S. at 223. Again,	19
this case does not involve a transaction or occurrence on land within the boundaries	20

15
of an Indian reservation. Cf. id. (“The cases in [the United States Supreme] Court	1
have consistently guarded the authority of Indian governments over their	2
reservations.”). Therefore, we are not presented with a situation in which the district	3
court seeks to assert jurisdiction over an on-reservation matter.	4
{26} We note that this is not a typical situation in which a non-Indian individual	5
sues an Indian individual. Rather, an entity, the State, is bringing this suit for	6
violation of state laws. See State Sec., Inc. v. Anderson, 1973-NMSC-017, ¶ 12, 84	7
N.M. 629, 506 P.2d 786 (stating a tribal court does not have exclusive jurisdiction	8
over “Indians off the reservation who violate state laws”). Because the facts of this	9
case do not fall squarely within any of the situations in which a tribal court would	10
have exclusive jurisdiction, we conclude that a New Mexico court may exercise	11
concurrent jurisdiction over this matter.	12
{27} Under the right-for-any-reason doctrine, and applying the Williams	13
infringement test, we conclude that the district court had subject matter jurisdiction	14
over this matter because exercise of that jurisdiction did not infringe on an Indian	15
tribe’s interest in self-government and that a tribal court did not have exclusive	16
jurisdiction over the State’s claims.	17
II. The United States Is Not an Indispensable Party in the Action	18
{28} Bitsui contends that the United States is an indispensable party under Rule 1-	19
019 because the Decision “purports to change the legal status of the [land] from land	20

16
held in trust by the United States to land held in fee by [Bitsui] and others . . . despite	1
the fact that no fee patent was issued by the United States.” Bitsui further contends	2
that the United States has not waived its sovereign immunity to be joined in the	3
action. Therefore, Bitsui argues, the district court erred by failing to dismiss the	4
action for failure to join an indispensable party. We are not persuaded.	5
{29} “Rule 1-019 has been synthesized into a three-part analysis: (1) whether a	6
party is necessary to the litigation; (2) whether a necessary party can be joined; and	7
(3) whether the litigation can proceed if a necessary party cannot be joined.” Little	8
v. Gill, 2003-NMCA-103, ¶ 4, 134 N.M. 321, 76 P.3d 639. “If the litigation cannot	9
proceed without a necessary party, the party is considered indispensable, and the	10
case must be dismissed.” Id. We review a district court’s Rule 1-019 decision for an	11
abuse of discretion. Brantley Farms v. Carlsbad Irrigation Dist., 1998-NMCA-023,	12
¶ 25, 124 N.M. 698, 954 P.2d 763. “An abuse of discretion occurs when a ruling is	13
clearly contrary to the logical conclusions demanded by the facts and circumstances	14
of the case.” Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶ 39, 132 N.M. 207,	15
46 P.3d 668 (internal quotation marks and citation omitted).	16
{30} In support for his argument that the United States is a necessary party to this	17
litigation, Bitsui cites Begay v. Albers, 721 F.2d 1274 (10th Cir. 1983). That case	18
provides that “the United States is an indispensable party in any action determining	19
a dispute arising over the possession of allotted land by virtue of its trust relationship	20

17
and state courts do not have any jurisdiction over such disputes” under the statutory	1
design of 25 U.S.C. § 348 (2018). Begay, 721 F.2d at 1279-80. The purpose of § 348	2
is “to render it impossible for an Indian allottee to sell, convey or in anywise	3
encumber trust lands during the continuance of the trusteeship.” Begay, 721 F.2d at	4
1279. Here, the parties’ dispute does not involve any attempt by Bitsui to encumber	5
the trust land at issue; therefore, Begay is inapposite. Furthermore, nothing in this	6
opinion in any way affects the legal status of the patented land.	7
{31} Because Bitsui has failed to demonstrate that the United States was necessary	8
to this litigation, we conclude that the district court did not abuse its discretion by	9
declining to dismiss the State’s action pursuant to Rule 1-019.	10
CONCLUSION	11
{32} For the foregoing reasons, we affirm.	12
{33} IT IS SO ORDERED.	13
______________________________	14
KRISTINA BOGARDUS, Judge	15
WE CONCUR:	16
______________________________	17
J. MILES HANISEE, Chief Judge	18
______________________________	19
ZACHARY A. IVES, Judge	20