August 09, 2012 – State of New Mexico v. Milroy Vandever, No. 30,842

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: 	August 9, 2012
NO. 30,842
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MILROY VANDEVER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Grant L. Foutz, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Milroy Vandever was involved in an automobile accident in the
checkerboard area of western New Mexico; a highway worker was killed. Defendant
filed a motion to dismiss, contending that the district court lacked jurisdiction because
he is an enrolled member of the Navajo Nation and the accident occurred in Indian
country. The district court denied the motion, and Defendant pled guilty to homicide
by vehicle, driving while under the influence of intoxicating liquor or drugs (DWI),
and knowingly leaving the scene of an accident involving great bodily harm or death.
We affirm the decision of the district court denying the motion to dismiss because
Defendant did not meet his burden of establishing that the accident occurred in Indian
country.
I. 	BACKGROUND
{2} 	Defendant, while driving under the influence of alcohol, struck and killed a
highway worker. He continued driving and was eventually stopped by police. The
arresting officer smelled a strong odor of alcohol on Defendant, and Defendant
admitted drinking a six-pack of beer. A blood test revealed a blood alcohol level of
.19.
{3} 	Defendant was charged with aggravated DWI, homicide by vehicle, and

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knowingly leaving the scene of an accident. Defendant filed a motion to dismiss the
case based on lack of jurisdiction and later filed supplemental briefs in support of the
motion. Following a hearing, the district court denied the motion. Defendant then
entered a conditional plea of guilty, the district court entered its judgment and
sentence, and Defendant filed this appeal. In his plea agreement, Defendant reserved
the right to appeal the district court’s decision denying his motion to dismiss.
II. 	JURISDICTION OF THE DISTRICT COURT
{4} 	Generally, under the Indian Country Crimes Act, 18 U.S.C. §§ 1151 to -70
(1948, as amended through 2010), “a state does not have jurisdiction over crimes
committed by an Indian in Indian country.” State v. Frank, 2002-NMSC-026, ¶ 12,
132 N.M. 544, 52 P.3d 404. The State does not dispute that Defendant is an enrolled
member of the Navajo Nation. According to Defendant, the accident occurred within
Indian country for purposes of criminal jurisdiction based on all three definitions of
Indian country delineated in 18 U.S.C. § 1151.
{5} 	Specifically, Defendant claims that the land is historically, by treaty, within the
boundaries of the Navajo Nation (we intend “Navajo Nation” to include reference to
the area designated by Congress as “reservation”); the land is the location of a
dependent Indian community; and the land is part of an Indian allotment. The State
counters that, regardless of the historical physical or exterior boundaries of the Navajo

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Nation, the accident did not occur within the current exterior boundaries, and the land
is not included in any dependent Indian community or any Indian allotment on the
date of the accident.
A. 	Standard of Review
{6} 	In our review, we defer to the district court’s findings of fact that are supported
by substantial evidence and review de novo the district court’s interpretation of the
Indian Country Crimes Act as a question of law. State v. Romero, 2006-NMSC-039,
¶ 6, 140 N.M. 299, 142 P.3d 887. As the party who challenged the jurisdiction of the
district court, Defendant has the burden of demonstrating a lack of jurisdiction. State
v. Begay, 105 N.M. 498, 499, 734 P.2d 278, 279 (Ct. App. 1987); State v. Cutnose, 87
N.M. 307, 309, 532 P.2d 896, 898 (Ct. App. 1974).
B. 	Location of Accident
{7} 	The accident occurred on the eastbound exit ramp at the intersection of State
Highway 412 and I-40 at mile marker 63. The parties agree that the Navajo Nation
owns this land in fee simple and uses it as “chapter land” for its Baca Chapter. 	A
chapter is a political subdivision of the Navajo Nation. See Hydro Res., Inc. v. U.S.
Envtl. Prot. Agency, 608 F.3d 1131, 1137 n.3 (10th Cir. 2010) (stating that “Church
Rock Chapter was first established . . . by the United States as a subdivision of the
Navajo Nation government” (internal quotation marks and citation omitted)).

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{8} 	Defendant’s expert witness in the establishment of land status and jurisdiction
in McKinley County, Tim Larsen, an employee of the McKinley County Geographic
Information System, testified that chapter land is land set aside for a chapter to
develop. The State’s expert witness, Chad Begaye, a geographical system technician
for the Navajo Nation, explained that the Navajo Nation considers chapter land to be
fee land under its control. 	Begaye testified that the Navajo Nation pays county
property taxes on the Baca Chapter land. He stated that there is no difference between
chapter land and fee land and that the Baca Chapter house is located on fee land.
Begaye added that the Navajo Nation pays county property taxes on all chapter and
fee land.
{9} 	Based on the evidence presented in the district court, we conclude that the
accident occurred on fee land owned by the Navajo Nation, land on which the Baca
Chapter house is located. We must thus determine whether Defendant met his burden
of showing that the crimes occurred in Indian country so as to bar state district court
jurisdiction.
C. 	Indian Country
{10} 	The Indian Country Crimes Act defines “Indian country” as
(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through the

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reservation, (b) all dependent Indian communities within the borders of
the United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a state, and
(c) all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.
18 U.S.C. § 1151.
1. 	Reservation
{11} 	Defendant claims that the accident occurred within the “traditional/historical”
boundaries of the Navajo Nation as established by the 1868 treaty between the Navajo
Nation and the United States. Defendant did not produce a map or other document to
support this claim. 	Defendant’s expert witness, Larsen, provided contradictory
testimony, stating that the area identified as Navajo Nation land on a map of the area
including the accident site fell within the traditional boundaries of the Navajo Nation
from the 1868 treaty but, also, that the land in question does not fall under federal
supervision. At the conclusion of the hearing, the district court questioned the parties
as to the witness testimony regarding the exterior boundaries of the Navajo Nation.
Defense counsel clarified Larsen’s testimony by stating that, based on the Navajo
Nation Code and common use, it is common to refer to the territorial jurisdiction and
the exterior boundaries of the Navajo Nation interchangeably. 	Defense counsel
informed the district court that an 1868 treaty boundary map would not even include
the lands under the jurisdiction of the Eastern Navajo Agency. See Hydro Res., Inc.

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v. U.S. Envtl. Prot. Agency, 562 F.3d 1249, 1255 n.4 (10th Cir. 2009) (describing the
Eastern Navajo Agency as an administrative arm of the Bureau of Indian Affairs that
superintends certain lands located by, but not within, the Navajo Nation), vacated on
other grounds by 608 F.3d 1131 (10th Cir. 2010); Texaco, Inc. v. Zah, 5 F.3d 1374,
1375 n.2 (10th Cir. 1993) (explaining that the Navajo Nation Code defines Navajo
Indian country as land within the exterior boundaries of the Navajo Nation or within
the Eastern Navajo Agency, all land within dependent Indian communities, all Navajo
allotments, and all land held in trust or owned in fee or leased by the United States to
the Navajo Nation); see also Navajo Nation Code Ann. tit. 7, § 254(A) (2005). In
other words, as defense counsel conceded, Larsen was referring generally to the
Navajo Nation’s view of its territorial jurisdiction, which includes lands outside the
contiguous boundaries of the Navajo Nation, rather than limiting his opinion to the
exact boundaries of the Navajo Nation based on the 1868 treaty. Larsen’s testimony
did not demonstrate that the accident site was within the 1868 treaty boundaries of the
Navajo Nation.
{12} 	As the State suggests, since the 1868 treaty was signed, there have been changes
made to Navajo Nation treaty boundaries by congressional acts of diminishment,
temporary expansions of boundaries, allotments of parcels of land to individual
Indians, and return of land to the public domain. 	See Pittsburg & Midway Coal

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Mining Co. v. Yazzie, 909 F.2d 1387, 1400-03 (10th Cir. 1990). The Navajo Nation
is not unique in this regard. 	See State v. Davids, 534 N.W.2d 70, 81 (Wis. 1995)
(holding that due to diminishment and allotment of lands, the pond in which the
defendant had been fishing was no longer part of the current reservation, but was on
land within the jurisdiction of the state). Because of the changes of boundaries that
have taken place, we consider the Navajo Nation boundaries at the time of the
accident to be determinative for jurisdiction under the Indian Country Crimes Act
rather than the historical treaty boundaries. 	Cf. Romero, 2006-NMSC-039, ¶ 31
(Chavez, J., specially concurring) (recognizing the ability of Congress to alter
reservation boundaries and thereby change the jurisdiction status of affected land).
Defendant did not present evidence to show that the accident site was within the
boundaries of the Navajo Nation as they existed on the date of the accident.
{13} 	Following presentation of evidence and argument, the district court specifically
rejected Defendant’s claim that the accident occurred within the current exterior
boundaries of the Navajo Nation and asked if the parties could agree to a map
outlining the exterior boundaries without requiring testimony from a witness. The
district court’s comments indicate that it was asking if a map could be produced to
show whether the accident occurred within the current exterior boundaries of the
Navajo Nation, on trust land, on allotment land, or on fee land owned by the Navajo

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Nation. The State then supplemented the record with Exhibit 3, a land status map that
does not explicitly identify the current Navajo Nation boundaries; instead, it refers to
“Navajo Nation Trust Land” in a large area that appears to be Navajo Nation land.
Nevertheless, the district judge orally determined that the accident did not occur
within the current boundaries of the Navajo Nation. The evidence before the district
court supports this determination.
{14} 	Defendant relies on Romero in support of his argument that fee land within the
historical boundaries of a reservation is considered to be Indian country. 	Romero,
2006-NMSC-039, ¶ 5. 	In Romero, our Supreme Court held that the state lacked
jurisdiction to prosecute crimes committed on privately-owned land within the interior
boundaries of the Taos and Pojoaque Pueblos. 	Id. ¶ 26. 	However, there are two
problems with this argument. 	First, as we have discussed, Defendant made no
showing that the accident site was within the historical boundaries of the Navajo
Nation. Second, the Romero decision was based on the fact that the crimes occurred
within the current boundaries of the Taos and Pojoaque Pueblos, rather than the
historical boundaries. 	Id. ¶¶ 2, 3 (noting that parties agreed the crimes occurred
within the exterior boundaries of the pueblos on private property on non-Indian fee
land).

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2. 	Dependent Indian Community
{15} 	Defendant argues that the accident location could be considered a dependent
Indian community. To be considered a dependent Indian community under 18 U.S.C.
§ 1151, land must: (1) have been set aside by the federal government for the use of
Indians as Indian land; and (2) be under federal superintendence. State v. Quintana,
2008-NMSC-012, ¶ 4, 143 N.M. 535, 178 P.3d 820 (citing Alaska v. Native Vill. of
Venetie Tribal Gov’t, 522 U.S. 520, 527 (1998)). With respect to the first requirement
of the Quintana test, Defendant argues, “[a]s the land was within the boundaries of the
reservation under the original treaty, it was set aside for the use of Indians as Indian
land.” 	With respect to the second requirement, Defendant argues that the land “is
governed 	by 	the 	Navajo 	Nation–which 	as 	an 	Indian 	tribe 	is 	under 	federal
superintendence,” and therefore, the land is under federal superintendence.
{16} 	As we have held, Defendant failed to demonstrate that the accident location was
within the 1868 treaty boundaries of the Navajo Nation. Therefore, the premise for
Defendant’s argument is incorrect. The Navajo Nation purchased the land at issue and
owns it in fee simple. 	There was no evidence presented to the district court to
establish either that the federal government took some explicit action to designate the
land as Indian country or that the federal government transferred the property to
Indians for use by Indians. See Quintana, 2008-NMSC-012, ¶ 6 (stating that to find

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that the federal government set aside land as Indian country, some explicit
congressional or executive action must have been taken).
{17} 	Nor was there evidence to show that the accident location would qualify as a
dependent Indian community based on the second requirement of Quintana. Federal
superintendence requires that an Indian community be sufficiently dependent on the
federal government and that the State not exercise primary jurisdiction over the
property. 	Id. ¶ 8. 	Although there was witness testimony that the Navajo Nation
provides services to the Baca Chapter and that the Baca Chapter provides services to
the community on chapter land, there was no evidence to show that the land at issue
was “sufficiently dependent” on the federal government. In fact, the State presented
evidence that the Navajo Nation pays taxes for the land to the county, a division of the
State. Therefore, Defendant failed to satisfy either requirement under Quintana. See
id. (necessitating both requirements to be met).
{18} 	Given the status of the land as fee land, Defendant might be arguing that we
must look at the community located at the accident site as a whole, rather than
focusing on the status of certain parcels as trust or fee land. 	However, this
“community of reference” analysis has been specifically rejected by our Supreme
Court in Frank, 2002-NMSC-026, ¶ 22. The district court did not err in failing to
categorize the land at issue as a dependent Indian community.

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3. 	Indian Allotment
{19} 	Defendant also argues that the land at issue could be an Indian allotment. See
Hydro Res., Inc., 608 F.3d at 1159 (explaining that allotments outside reservations are
stray parcels of land that are set aside and subject to superintendence for individual
Indians in Indian country even though adjacent parcels are not). 	Defendant again
states, “as it was within the boundaries of the reservation set in 1868, this land was,
at some point, an Indian [a]llotment.” Defendant alleges, “[w]hen the Navajo Nation
purchased the land, the Indian title was restored, if it was ever extinguished.” Again,
as we discussed earlier in this opinion, Defendant did not present evidence to establish
that the site of the accident was ever within the 1868 exterior boundaries of the Navajo
Nation or was once an Indian allotment. In addition, Larsen testified that the site was
not within the Indian allotments to the north or the south of that area. Finally,
Defendant provides no authority for his allegation that the purchase of the land by the
Navajo Nation somehow converted the status of the property to that of an Indian
allotment. 	When a party does not cite authority to support an argument, we may
assume no such authority exists. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d
1329, 1330 (1984). The district court also did not err by failing to find that the land
at issue fell within an Indian allotment.

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III. 	CLERICAL ERROR
{20} 	In the complaint, Defendant was charged with knowingly leaving the scene of
an accident under NMSA 1978, Section 66-7-201(A), (C) (1989). The plea agreement
refers to Section 66-7-201(D), a misdemeanor, on the first page, but the other portions
of the plea agreement clearly refer to the sentence for an offense under Section 66-7-
201(C), a third degree felony. 	The judgment and sentence refers to Section 66-7-
201(B), a fourth degree felony, but imposes a sentence for a third degree felony.
Based on the record, Defendant was charged with, pled guilty to, and received a
sentence for a third degree felony under Section 66-7-201(C). We therefore direct the
district court to correct the judgment and sentence to reflect the fact that Defendant
entered a plea of guilty to knowingly leaving the scene of an accident under Section
66-7-201(C).
IV. 	CONCLUSION
{21} 	Defendant failed to establish that the accident occurred within the limits of an
Indian reservation, on the site of a dependent Indian community, or on an Indian
allotment. The accident did not occur within Indian country, and the district court
properly determined that it had jurisdiction over this case.

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{22} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
__________________________________
MICHAEL D. BUSTAMANTE, Judge
__________________________________
MICHAEL E. VIGIL, Judge