A-1-CA-36206 | Omnilex

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Court of Appeals of New Mexico
Filed 1/15/2020 11:26 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Opinion Number: Filed 1/15/2020 11:26 AM

Filing Date: January 15, 2020 Hue
Mark Reynolds

No. A-1-CA-36206

STATE OF NEW MEXICO,

Plaintiff-Appellee,

CLOYCEVANN SALAZAR,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Aja Oishi, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

IVES, Judge.

1} This appeal presents a question of first impression in New Mexico: whether a
person must be an enrolled member of a tribe or pueblo to qualify as an Indian for
purposes of determining criminal jurisdiction. A state generally “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. In his probation revocation
proceedings, Defendant Cloycevann Salazar argued that his Indian status was fatal
to the State’s theory that Defendant’s conduct in Indian country—which resulted in
new charges being filed against him under a new cause number in New Mexico state
court—violated the condition of his probation that required him to comply with New
Mexico’s criminal statutes. The district court disagreed, concluding that Defendant
is not an Indian because he is not an enrolled member of a tribe or pueblo. Defendant
then pled no contest pursuant to a conditional plea agreement that included a
provision allowing him to appeal the district court’s ruling. Because we conclude
that enrollment is not necessary for Indian status, we reverse and remand the case to
the district court so that it may reconsider its ruling that Defendant is not an Indian

based on pertinent factors in addition to Defendant’s lack of enrollment.!

'Because of the narrow scope of the district court’s task on remand, we decline
to address the merits of Defendant’s argument that the district court erred during the
sentencing phase. Defendant may raise the issue, if necessary, in a subsequent
appeal.

BACKGROUND

12} While Defendant was on probation, the State filed a criminal complaint
against him, alleging that he had committed two new offenses: battery on a
household member in violation of NMSA 1978, Section 30-3-15 (2008) and criminal
damage to property in violation of NMSA 1978, Section 30-15-1 (1963). The State
then filed a petition to revoke Defendant’s probation, alleging that he violated a
condition of his probation by “violat[ing] the laws or ordinances of the State of New
Mexico, or any jurisdiction and/or endanger[ing] the person or property of another
by being charged with [c]riminal [dJamage to [p]roperty of a [household [m]Jember
and [b]attery [a]gainst a [h]ousehold [mJember.” To support its theory, the State
attached to its petition a copy of the criminal complaint charging Defendant with
these two new offenses. Also attached was a statement of probable cause alleging
that the charged offenses occurred on the Mescalero Apache Reservation and that
the offense “involv[ed] two non-[t]ribal members.”

{3} In response to the petition, Defendant argued, among other things,’ that his

probation could not be revoked based on alleged violations of New Mexico’s

*Defendant also argued that the district court should suppress the evidence
that law enforcement had gathered regarding the alleged battery and property
damage because law enforcement did not have authority to investigate on the
Mescalero Apache Reservation. The district court ruled against Defendant, and he
reserved the right to appeal that ruling in his plea agreement, but he does not
challenge that ruling on appeal.

criminal statutes because, as an Indian, he is not subject to prosecution by the State
of New Mexico for violating state statutes based on conduct that allegedly occurred
on the Mescalero Apache Reservation. Stated differently, according to Defendant,
even if the State could prove that he engaged in the conduct alleged in the criminal
complaint, the State’s petition to revoke was not viable as a matter of law because
New Mexico’s criminal statutes do not apply to that conduct.

4; | During the hearing on Defendant’s motion, the State stipulated that Defendant
was a lifelong resident of the Mescalero Apache Reservation and that his father was
an enrolled tribal member. Defendant presented the following additional facts by
proffer: (1) Defendant is not an enrolled member of the Mescalero Apache Tribe;
(2) Defendant is 7/32 Mescalero Apache by blood, which falls short of the % required
to qualify for membership, but he is an “affiliate” of the tribe; (4) Defendant attended
school on the reservation; (5) Defendant gets his medical care on the reservation; (6)
Defendant has had several criminal cases adjudicated in tribal court. The State did
not dispute these facts. The thrust of the State’s argument was that Defendant does
not have Indian status because he is not an enrolled member of the tribe and that his
affiliate status is insufficient to establish such status.

5} The district court agreed with the State. The court concluded that Defendant

is not an Indian based on the undisputed fact that he is not an enrolled member of

the Mescalero Apache Tribe, explaining that when a person’s percentage of Indian
blood is even slightly too low to qualify for enrollment, the State has jurisdiction.
{6} | Defendant then pled no contest pursuant to a conditional plea and disposition
agreement. The agreement allowed Defendant to appeal the district court’s denial of
his pretrial motion. The district court accepted the agreement, concluded that
Defendant had violated a condition of his probation by committing new offenses in
violation of New Mexico law, revoked Defendant’s probation, and sentenced him to
twenty-four years of incarceration with credit for five years of time served.
Defendant appeals.

DISCUSSION

{7}. To determine whether Defendant’s alleged violations of New Mexico’s
criminal statutes while he was in Indian country are a legally viable basis for
revoking Defendant’s probation, we begin with the “general principle” that “a state
does not have jurisdiction over crimes committed [(1)] by an Indian [(2)] in Indian
country.” Frank, 2002-NMSC-026, § 12. In Defendant’s case, the second element is
undisputed. “Indian country” includes “all land within the limits of any Indian
reservation under the jurisdiction of the United States Government,” 18 U.S.C.
§ 1151(a) (2018), and the State has acknowledged that the charged offenses occurred

within the Mescalero Apache Reservation.

‘8; At issue here is the first element: whether Defendant is an “Indian.” Although
“Indian” is a term of art in the context of criminal jurisdiction, see 18 U.S.C.
§§ 1152, 1153 (2018), Congress has not defined the term, leaving the task to the
courts, which generally apply a test based on United States v. Rogers, 45 U.S. 567,
573 (1846). The test’s two requirements are “whether the defendant (1) has some
Indian blood, and (2) is recognized as an Indian by a tribe or the federal government
or both.” United States v. Stymiest, 581 F.3d 759, 762 (8th Cir. 2009); accord United
States v. Bruce, 394 F.3d 1215, 1224 (9th Cir. 2005); United States v. Prentiss, 273
F.3d 1277, 1280 (10th Cir. 2001); United States v. Torres, 733 F.2d 449, 456 (7th
Cir. 1984); see also United States v. Zepeda, 792 F.3d 1103, 1113 (9th Cir. 2015)
(en banc) (clarifying that the Ninth Circuit test requires “(1) proof of some quantum
of Indian blood, whether or not that blood derives from a member of a federally
recognized tribe, and (2) proof of membership in, or affiliation with, a federally
recognized tribe”).

9} In this case, because it is undisputed that Defendant meets the Indian blood
requirement, the only dispute pertains to the second requirement: whether Defendant
has been recognized as an Indian by either the Mescalero Apache Tribe or the United
States or both. See Bruce, 394 F.3d at 1224-25 (stating that evidence of federal
recognition is not required and emphasizing that the question is whether there is

some evidence of federal or tribal recognition). The district court concluded that

Defendant is not recognized as an Indian because he is not an enrolled member of
the Mescalero Apache Tribe. Defendant argues that the district court applied the
wrong test, and that the court erred by concluding that his lack of tribal membership
automatically disqualifies him from being recognized as an Indian. Defendant
contends that, under the correct test, a person who is not an enrolled member of any
tribe or pueblo may still be recognized as an Indian, satisfying the second
requirement, based on other factors, and that the district court erred by failing to
consider how those factors apply to his case. Whether lack of enrollment is
dispositive is a legal question we review de novo. See Frank, 2002-NMSC-026, § 10.
10} Contrary to the district court’s ruling, lack of enrollment as a member of a
tribe or pueblo, although relevant, is not dispositive; a person need not be enrolled
to be recognized as an Indian. See Stymiest, 581 F.3d at 764 (explaining that tribal
enrollment “is not essential and its absence is not determinative”); Bruce, 394 F.3d
at 1225 (recognizing that neither lack of enrollment nor lack of eligibility to enroll
is dispositive); Prentiss, 273 F.3d at 1283 (“[T]he fact that a person is not a member
of a particular pueblo does not establish that he or she is not an Indian.”); cf United
States v. Antelope, 430 U.S. 641, 646 n.7 (1977) (noting, in dicta, that “enrollment
in an official tribe has not been held to be an absolute requirement for federal

jurisdiction, at least where the Indian defendant lived on the reservation and

maintained tribal relations with the Indians thereon” (internal quotation marks and
citation omitted)).

{11}. Rather than treating enrollment as essential, courts have weighed multiple
factors to determine whether a person has been recognized as an Indian for purposes
of the test’s second requirement, which is designed to measure whether the person
“has a sufficient non-racial link to a formerly sovereign people.” Bruce, 394 F.3d at
1224 (internal quotation marks and citation omitted). Over three decades ago, in St.
Cloud v. United States, 702 F. Supp. 1456, 1461 (D.S.D. 1988), a federal district
court “gleaned from case law several factors to evaluate” when examining the
second requirement. The court concluded that courts should consider “[i]n declining
order of importance[:]” (1) “enrollment in a tribe”; (2) “government recognition
formally and informally through providing the person assistance reserved only to
Indians”; (3) “enjoying benefits of tribal affiliation”; and (4) “social recognition as
an Indian through living on a reservation and participating in Indian social life.” Jd.
The court explained that “[t]hese factors do not establish a precise formula for
determining who is an Indian” but instead “merely guide the analysis[.]” /d.
Elaborating on the role of the first factor, the court observed that “courts have found
tribal enrollment alone sufficient proof that a person is an Indian[,]” but that “a
person may still be an Indian though not enrolled with a recognized tribe.” Jd.

Several federal and state jurisdictions have adopted multifactor tests based on St.

Cloud.’ See Zepeda, 792 F.3d at 1113-14; Stymiest, 581 F.3d at 764; State v. George,
422 P.3d 1142, 1145-46 (Idaho 2018); State v. LaPier, 790 P.2d 983, 986 (Mont.
1990); State v. Nobles, 818 S.E.2d 129, 136-40 (N.C. Ct. App. 2018); State v.
Daniels, 16 P.3d 650, 653-54 (Wash. Ct. App. 2001). Although not all of these
jurisdictions use precisely the same test,‘ the State has not cited—and our
independent research has not unearthed—precedent from any jurisdiction treating

lack of enrollment as dispositive.

3Some courts have concluded that the St. Cloud factors are not exhaustive. See
Stymiest, 581 F.3d at 764 (concluding that “the St. Cloud factors may prove useful,
depending upon the evidence, but [that] they should not be considered exhaustive”).
The Eighth Circuit and the Ninth Circuit have recognized additional factors. See id.
(concluding that the district court “properly identified two other factors relevant on
the facts of this case—that the tribe exercised criminal jurisdiction over [the
defendant]” and that the defendant “held himself out to be an Indian”); Bruce, 394
F.3d at 1227 (concluding that it was significant that a tribal court had exercised
jurisdiction over the defendant because “the tribe has no jurisdiction to punish
anyone but an Indian”).

“For example, a circuit split has emerged about whether certain factors carry
more weight than others. Echoing the St. Cloud court, the Ninth Circuit has held that
the factors should be considered in “declining order of importance,” Bruce, 394 F.3d
at 1224, but the Eighth Circuit has held that the factors should not “be tied to an
order of importance.” Stymiest, 581 F.3d at 764. Because the parties have not briefed
this issue or any other issue pertaining to differences between jurisdictions and
because we need not resolve such issues to decide this appeal, we decline to reach
them. See Elane Photography, LLC v. Willock, 2013-NMSC-040, J 70, 309 P.3d 53
(“It is of no benefit either to the parties or to future litigants for [an appellate court]
to promulgate case law based on [its] own speculation rather than the parties’

carefully considered arguments.”).

{12}, Based on these authorities, we conclude that enrollment as a member of a
recognized tribe or pueblo is not a mandatory prerequisite for Indian status, and that
whenever a person is not enrolled, the court must consider other factors to determine
whether the second requirement—tribal or federal recognition as an Indian—is
satisfied. We therefore hold that the district court erred by concluding that
Defendant’s lack of enrollment as a member of the Mescalero Apache Tribe is
dispositive and by failing to consider other pertinent factors.

{13} The parties invite us to perform the requisite multifactor analysis in the first
instance, but we decline to do so because, on the limited record before us, performing
that analysis would entail fact-finding. See Blaze Constr. Co. v. N.M. Taxation &
Revenue Dep’t, 1994-NMSC-110, J 24, 118 N.M. 647, 884 P.2d 803 (“It is well
established that an appellate court will not find facts on appeal.”); State v. Gonzales,
1999-NMCA-027, § 9, 126 N.M. 742, 975 P.2d 355 (“It is a bedrock principle of
appellate practice that appellate courts do not decide the facts in a case.”). Because
the district court concluded that lack of enrollment as a tribal member was
dispositive, it did not make any factual findings regarding the other relevant factors.
On appeal, both parties ask us to consider the scant stipulations they made in the
district court, which do not adequately address the factors. Defendant proffered
additional relevant facts, including that he is an “affiliate” of the tribe and that he

attended school on the reservation, gets his medical care on the reservation, and has

had criminal cases adjudicated in tribal court. The State did not dispute any of these
facts in the district court, relying instead on its categorical argument that enrollment
is essential, but on appeal the State takes the position that no evidence supports the
proffered facts. Defendant responds by asking us to take judicial notice of the
affidavits he submitted in support of his motion to dismiss the criminal complaint
for lack of jurisdiction. These circumstances warrant fact-finding, which we, as an
appellate court, are not in a position to do. Because “[t]he vantage of the appellate
bench is a poor one from which to assess credibility and perform other components
of the fact-finding task[,]” Gonzales, 1999-NMCA-027, ¥ 13, “[flact-finding is the
task of the trial judge[.]” /d. | 9. Accordingly, we remand the case to the district
court so that it may fully address the government recognition requirement based on
evidence pertinent to the applicable factors.

145 We acknowledge, as the State notes in its brief and as the district court
concluded, that the district court had jurisdiction to adjudicate the petition to revoke
Defendant’s probation, even though the location of the alleged probation violations
was in Indian country. However, the existence of such jurisdiction does not change
the outcome of this appeal. No matter where a probationer’s violation allegedly
occurred—in Indian country, in a foreign nation, or in a state in the United States
other than New Mexico—any revocation of probation must be based on a legally

viable theory that the probationer’s conduct violated at least one condition of his or

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her probation. In this case, although Defendant’s conditions of probation apparently
prohibited him from violating the laws of any jurisdiction, the State did not ask the
district court to find that Defendant’s conduct violated any laws of either the
Mescalero Apache Tribe or the United States or that he was subject to prosecution
by the United States for violating New Mexico law. Nor did the State ask the district
court to find that Defendant violated any probation condition that is not tethered to
compliance with the law. We have therefore limited our analysis to the narrow theory
the State has chosen to pursue: that Defendant violated the condition of his probation
that requires him to comply with the laws of New Mexico, and that he did so by
being charged with two new crimes in state court. Because in this instance that theory
is only valid if Defendant is not an Indian, and the district court relied on the wrong
test to determine whether he is, we must reverse.

CONCLUSION

{153}. We reverse the district court’s ruling that Defendant is not an Indian and
remand the case to allow the district court to reconsider that ruling in a manner
consistent with this opinion. To facilitate any further appellate review that might be
necessary, the district court should explain the legal and factual bases for its ruling
on remand.

{16} ITISSO ORDERED.

sey Judge
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WE CONCUR:

Kis fre Soper Hd

KRISTINA BOGARDUS, Judge

January 15, 2020- State of New Mexico v. Cloycevann Salazar, No. A-1-CA-36206

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