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United States v. Antonio

United States District Court, D. New Mexico

June 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFREY ANTONIO, Defendant.

          James D. Tierney Acting United States Attorney Joseph M. Spindle Michael D. Murphy Assistant United States Attorneys United States Attorney's Office Attorneys for the Plaintiff

          Marc H. Robert Irma Rivas Assistant Federal Public Defenders Office of the Federal Public Defender Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Motion to Dismiss for Lack of Federal Subject Matter Jurisdiction, filed April 10, 2017 (Doc. 62) ("Motion"). The Court held an evidentiary hearing on April 11, 2017, and a hearing on April 12, 2017. The primary issue is whether the Court has jurisdiction over this matter under the Indian Pueblo Land Act Amendments of 2005, Pub. L. No. 109-133, 119 Stat. 2573 (Dec. 20, 2005), codified at 25 U.S.C. § 331 Note, because the automobile collision giving rise to Plaintiff United States of America's criminal prosecution against Defendant Jeffrey Antonio, which occurred on private land, nonetheless occurred within the exterior boundaries of the 1748 Spanish land grant to the Sandia Pueblo, which Congress confirmed in the Act of December 22, 1858, 11 Stat. 374, 374 (1859). The Court concludes: (i) the automobile collision giving rise to this criminal cause of action occurred within the exterior boundaries of the 1748 Spanish land grant; and, consequently, (ii) under 25 U.S.C. § 331 Note, the Court has jurisdiction over this matter. Accordingly, the Court denies Antonio's Motion.

         FACTUAL BACKGROUND

         In a criminal prosecution under 18 U.S.C. §§ 1152 or 1153, the Court determines its jurisdiction based on facts established by a preponderance of the evidence. See United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994) (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). The United States charges Antonio with a violation of 18 U.S.C. § 1153. See Indictment at 1, filed March 23, 2016 (Doc. 2) ("Indictment"). The following facts, which the Court finds by a preponderance of the evidence, are relevant to the Court's jurisdictional determination:

         1. On May 16, 1748, Lieutenant General Don Bernardo Antonio de Bustamante y Tagle, acting under a duly authorized commission, conveyed a land grant to the Sandia Pueblo. See Menchero, Fray Juan Miguel, Joachin Codallosy Rabal & Bernardo Antonio de Bustamantey Tagle, "Proceedings in regard to the construction of the Mission and Pueblo of our Lady of Sorrow of Sandia, concerning which this attestation, to the letter, is sent to the Superior Government of this New Spain as will be Perceived within etc, " Spanish Archives of New Mexico Series I, No. 848, at 1-6 (1748) (Myra Ellen Jenkins, Ph.D., trans. (1994)), http://digitalrepository.unm.edu/lawcertificateindianlawsandia/59 (last visited June 2, 2017) ("1748 Pueblo of Sandia Grant.").

         2. In pertinent part, the 1748 Pueblo of Sandia Grant, which was memorialized by Bernardo Antonio de Bustamantey Tagle, provides:

In this pueblo and said mission of Nuestra Senora de los Dolores and San Antonio de Sandia on the 16th day of the month of May of 1748 I the Lieutenant General Don Bernardo Antonio de Bustamantey Tagle, by special commission which I hold from the Senor Sergeant Major Don Joachin Codallosy Rabal, Governor and Captain General of this Kingdom of New Mexico to do so having made myself aware and informed concerning the petition of the Reverend Minister Father, Delegate Commissary and Procurator General of this Custody and giving compliance to all that which the said Minister Reverend Padre petitions, and complying with that which the above proceedings demand, being in this said mission for the royal and personal possession which I should give, ordered the settlers who are nearest, who are those who reside in this said pueblo on the southern and northern portions, who being present I notified of the commission which I hold to give the said possession to the Moquino sons who are gathered together to resettle the said mission and to their minister and that if anything which should give them damage would take place that they explain the right which they may have, to which they responded that notwithstanding that the measurements included some granted and purchased land, they would cede them without any controversy since the order is superior to a recourse they could allege by law. And there being no further opposition which I verbally inquired as I had been ordered to do, I proceeded to give royal and personal possession, first proceeding to give the name and avocation to the said new mission in perpetuity, placing on it the name "Nuestra Senora de los Dolores y San Antonio de Sandia, " and this nomination made, all the recently converted Indians of the said nation as resettlers gathered together and their father minister who is the Reverend Father Preacher Fray Juan Joseph Hernandez, whom I led by the hand and in the name of his Majesty (may God guard him) I proceeded over the said land, I shouted and they shouted, threw rocks and pulled up grass and in a loud voice shouted many times "Long live the King, our Lord, " and they received the royal possession without any opposition. The leagues conceded for a formal pueblo were measured and the cordels [measuring cords! extended to the west wind as far as the Rio del Norte, which is the boundary, having no more than 12 cordels of 120 Castillian varas each one which consisted of 1, 440 varas, and in order to complete those which were lacking in this direction it was necessary to increase the leagues which pertain to the north and south winds equally so that the Spanish settler grantees would not be injured some more than others. The land which is encompassed in these three winds [directions] is all for raising wheat with the conveniences of water for the purpose of the land. And in order to perpetuate the memories and the designations I ordered them to place monument markers, mounds of mud and stone of the height of a man, with wooden crosses on top, these being on the north facing the point of the Canada which is commonly called "del Agua, " and on the south facing the mouth of the Canada de Juan Tabovo, and on the east the sierra madre called Sandia, within which limits are the conveniences of pastures, woods, waters and watering places in abundance in order to maintain their stock, both large and small and a horse herd, all of which Moquino Indian neophytes who are congregated as stated, so that they may enjoy them for themselves, their children, heirs and successors. Those who were present were found to be 350 persons, young and old, who comprise 70 families to whom jointly I conceded, pronounced and gave the royal possession in the name of his Majesty which is to be for them sufficient title so that neither now nor at any time can any occasion arise in which another person or persons will interfere with or enter into the designated boundaries. And being placed in possession and so that for all time it is certain I executed this proceeding, the official witnesses being the squadron corporal Antonio de Armenta and the soldier Juan Samon and I signed it with those of my assistance with whom I acted as jues receptor for lack of a royal and public scribe for there is none in this kingdom. Dated as above I certify. Bernardo Antonio de Bustamantey Tagle, Jues Receptor (rubric). Witness Ysidro Sanchez Tagle (rubric). Witness: Pedro Tafolla (rubric). An attestation is made which is remitted to the superior government of this New Spain.

1748 Pueblo of Sandia Grant at 4-6 (emphasis added).

         3. The Rio Grande is the western boundary of the Sandia Pueblo's 1748 land grant. See 1748 Pueblo of Sandia Grant at 4-6.

         4. The collision central to this criminal case took place at the intersection of New Mexico Highway 313 and Wilda Drive in Bernalillo County, New Mexico. See Motion at 1 (asserting this fact); United States' Response to Defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction ¶ 2, at 1, filed April 14, 2017 (Doc. 68) ("Response") (asserting this fact).

         5. The location of the collision, which is the intersection of New Mexico Highway 313 and Wilda Drive in Bernalillo County, New Mexico, lies east of the Rio Grande. See Fed.R.Evid. 201(b) (1) ("The court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the trial court's territorial jurisdiction.").

         6. The Sandia Pueblo does not own the land on which the collision occurred, because that land, known as Private Claim 364, came into Pedro C. Garcia's private ownership, "under the provisions of the Act of Congress on June 7, 1924 (43 Stat. 636), " confirmed by patents from the United States to Pedro C. Garcia. See Pedro C. Garcia Patent 1069186 (executed December 20, 1933), filed April 10, 2017 (Doc. 62-2) ("1933 Garcia Patent"); Pedro C. Garcia Patent 1067360 (executed April 26, 1934), filed April 10, 2017 (Doc. 62-2) ("1934 Garcia Patent"). See also Draft Transcript of Motion Proceedings at 46:9, taken April 11, 2017 (Ortiz) ("April 11 Tr.") (referring to the Garcia parcel as Private Claim 364"). [1]

         7. In 1930, Pedro C. Garcia and Beneranda S. Garcia conveyed in fee-simple a parcel of land to the Middle Rio Grande Conservancy District ("MRGCD").[2] See Receipt and Conveyance, introduced as Defendant's Hearing Ex. C, April 11, 2017 ("1930 Garcia Conveyance"); April 11 Tr. at 24:4-6 (Stretch).

         8. The 1930 Garcia Conveyance purports to convey:

All of that part of tract No. 79 on the Middle Rio Grande Conservancy District Property Map No. 20 required for right-of-way for the Albuquerque Riverside Drain and Levee and for Floodway, being all of said tract lying west of a line drawn from a point on the south boundary 948 feet, more or less, easterly from the east bank of the Rio Grande to a point on the north boundary 808 feet, more or less, easterly from the east bank of the Rio Grande and containing 28.78 acres, more or less.

1930 Garcia Conveyance at 1.

         9. The 1930 Garcia Conveyance describes the Rio Grande as the west boundary of the tract that Garcia conveyed to the MRGCD. See 1930 Garcia Conveyance at 1. See also April 11 Tr. at 29:1-2 (Stretch) ("The west boundary of the tract is described as the bank of the Rio Grande.").

         10. Since 1914, the Rio Grande has moved west, leaving a strip of land between the Rio Grande's current east bank and the original Garcia parcel, which includes that tract that Garcia conveyed to the MRGCD. See Original Field Notes of the Dependent Resurvey of a Portion of the South Boundary of the Sandia Pueblo Grant, a Portion of the North Boundary, a Portion of the Subdivisional Lines, and Certain Private Claim Boundaries within the Sandia Pueblo grant in Section 2, and a Metes-and-Bounds Survey in Section 2, Township 11 North, Range 3 East, of the New Mexico Principal Meridian, in the State of New Mexico at 12, 16, 43-44, United States Department of the Interior, Bureau of Land Management, New Mexico State Office (executed by Lonnie Bitsoi) (survey completed April 20, 2004), https://glorecords.blm.gov/details/survey/default.aspx?dmid=84672&sid=pcalp2eb.02b ("2004 BLM Survey") (noting that in 1914, the western boundary of the Pedro Garcia Claim, Private Claim 364, was the left bank of the Rio Grande). See also April 11 Tr. at 49:19-25 (Murphy, Ortiz) ("Q. Let me ask you is there a portion of Sandia Pueblo land lying between the western boundary of the Pedro Garcia tract and the western boundary of the Sandia Pueblo? A. Yes, it is. All of this portion in here belongs to the Pueblo of Sandia.").

         11. The Sandia Pueblo owns the land located between the current easterly bank of the Rio Grande and the original Garcia parcel, which includes that land which Garcia conveyed to the MRGCD. See April 11 Tr. at 49:19-25 (Murphy, Ortiz); April 11 Tr. at 52:9-10 (Ortiz) (averring that, west of the Pedro Garcia parcel, "the rest of the Pueblo of Sandia land").

         12. The Sandia Pueblo fenced and posted the land west of the Albuquerque Riverside drain and east of the Rio Grande. See April 11 Tr. at 53:2-8 (Murphy, Ortiz).

         13. The Garcia parcel, including the land that Garcia conveyed to the MRGCD, lies within the exterior boundaries of the 1748 grant to the Sandia Pueblo. See April 11 Tr. at 49:19-25.

         14. The collision site lies within the exterior boundaries of the 1748 grant to the Sandia Pueblo. See 1748 Pueblo of Sandia Grant at 4-6. See also Pueblo of Sandia Boundary, 96 Interior Dec. 331, 350, 1988 WL 410394, at *16 (Dec. 9, 1988).

         PROCEDURAL BACKGROUND

         On March 23, 2016, a federal grand jury indicted Antonio, asserting violations of 18 U.S.C. §§ 1153 and 1111. See Indictment at 1. In the Indictment, the grand jury charged that, "[o]n or about July 31, 2015, in Indian Country, in Bernalillo County, in the District of New Mexico, the defendant, Jeffery Antonio, an Indian, unlawfully killed Jane Doe with malice aforethought." Indictment at 1. The United States alleges that Antonio, while under the influence of alcohol, drove his vehicle across a lane of traffic into the victim's vehicle, causing her death. See Response ¶ 1, at 1.

         1. Antonio's Motion.

         Antonio moves the Court to dismiss the Indictment for lack of subject-matter jurisdiction. See Motion at 1. In his Motion, Antonio argues that the Court lacks subject-matter jurisdiction, because the alleged crime did not occur within Indian Country. See Motion at 3-6. Antonio's principal argument is that the precise location in which the alleged crime occurred "is not within the Exterior Boundary of the Sandia Pueblo but rather is a non-Indian Country Peninsula" that protrudes into the Sandia Pueblo from the west. Motion at 3. Antonio first states that the collision did not occur on Sandia Pueblo land, but on privately held land. See Motion at 5. According to Antonio, the parcel on which the collision occurred first came into private ownership by way of a June 7, 1924, grant from the United States to Pedro C. Garcia. See Motion at 5. See also 1933 Garcia Patent; 1934 Garcia Patent. Next, Antonio avers that the Garcia patent land extended westward to the Rio Grande. See Motion at 6. Consequently, Antonio reasons that the privately held land on which the collision occurred is within a "peninsula" of privately held land, ostensibly originating with the Garcia patent, that juts into the Sandia Pueblo from the west. See Motion at 6. Antonio states that "[t]his privately held land is not surrounded or enclosed by Sandia Pueblo, " such that "[o]ne can enter and exit [the Garcia patent] land, through the Rio Grande, by never entering Sandia Pueblo." Motion at 6.

         Antonio also advances a notice-based argument in the Motion; he objects "to the indictment for lack of specificity." Motion at 4. Antonio adverts to 18 U.S.C. § 1151, which defines the term "Indian country" in three principal ways, and asserts that "[i]t is unclear from the indictment which of the three theories the Government intends to use to establish jurisdiction." Motion at 4. Antonio reasons that "[t]he lack of specificity . . . creates an issue of lack of notice to the defendant." Motion at 4.

         2. Antonio's Supplement.

         On April 12, 2017, Antonio filed a Supplement to the Motion, in which he addresses the "appropriate standard of proof regarding the issue of jurisdiction." Supplement to Motion to Dismiss for Lack of Federal Subject Matter Jurisdiction at 1, filed April 12, 2017 (Doc. 66) ("Supplement"). Antonio emphasizes that the Court's jurisdiction depends upon the resolution of a factual issue. See Supplement at 1 ("[W]hether the site of the accident giving rise to this prosecution is within 'Indian Country' ... [is an] issue of fact."); Supplement at 3 ("There is a real question, a factual question, as to whether the private land on which the accident occurred is entirely surrounded by Pueblo land."); Supplement at 4 ("[W]hether the location of the accident is within the exterior boundaries of Sandia Pueblo is a question of fact that depends on the determination of the ownership of lands to the west of the accident site."). Antonio argues that this distinct factual question renders inapplicable the United States Court of Appeals for the Tenth Circuit's decision in United States v. Roberts, 185 F.3d 1125 (10th 1999), in which "the Tenth Circuit held that '[a]s a general matter, the trial court decides the jurisdictional status of a particular property or area and then leaves to the jury the factual determination of whether the alleged crime occurred at the site.'" Supplement at 2 (quoting United States v. Roberts, 185 F.3d at 1139).

         Antonio next reasons that, because the Court's jurisdiction "turns on a factual determination, the matter must be presented to the jury . . . ." Supplement at 2. Antonio concludes that, because the jurisdictional issue is a factual question that the Court should present to the jury, the United States has the burden to prove to a jury beyond a reasonable doubt that the land on which the collision occurred is surrounded by the Sandia Pueblo's exterior boundaries. See Supplement at 1 ("[T]he government must prove jurisdiction beyond a reasonable doubt."); Supplement at 4 ("Issues of fact should be addressed to the jury, and proved beyond a reasonable doubt."). Accordingly, Antonio "requests that the matter be submitted to the jury." Supplement at 4.

         3. The United States' Response.

         The United States argues that the Court should deny the Motion, because "[t]he location of the collision was within 'Indian Country.'" Response at 2 (quoting 18 U.S.C. § 1853). First, the United States addresses the standard of review and the burden of proof. See Response at 2. The United States asserts that "[j jurisdictional issues are matters of law decided by the court, rather than the jury." Response at 2 (citing United States v. Tinoco, 304 F.3d 1088, 1107 (11th Cir. 2002)). The United States contends that "[a] trial court decides if a particular area is legally Indian Country, but 'leaves to the jury the factual determination of whether the alleged crime occurred at the site.'" Response at 2 (quoting United States v. Roberts, 185 F.3d at 1139). The United States concedes that "[t]he burden remains on the United States to establish the crime occurred at the location alleged." Response at 2. "Where jurisdiction is challenged, " the United States explains, "the party seeking to invoke the jurisdiction of the Court must prove that it exists by a preponderance of the evidence." Response at 2 (citing United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994)).

         After addressing the standard and burden of proof, the United States pivots to its substantive argument for the Court's jurisdiction. See Response at 2-7. The United States does not dispute that the location where the collision occurred is privately held land. See Response at 2. The United States disputes, however, Antonio's two contentions that "the privately held land encompassing the collision site extends westward to the Rio Grande River" and that "the privately held land thereby abuts other non-Indian land, forming a 'peninsula' of private property extending in the boundaries of the Sandia Pueblo . . . ." Response at 2-3.

         The United States concedes that the United States gave a patent to Pedro C. Garcia and his heirs, thereby relinquishing certain lands within the Sandia Pueblo. See Response at 3. The United States argues, however, that the patented, granted land to Garcia is located entirely within the Sandia Pueblo, being enclosed by the Sandia Pueblo's outer boundaries. See Response at 6. To this point, the United States emphasizes that "[t]he patents from 1933 and 1934 granting title to Pedro C. Garcia and his heirs against the United States and the Pueblo of Sandia explicitly describe the tracts of land as 'within' the Pueblo of Sandia." Response at 6. The United States refers to the Tenth Circuit's opinion in United States v. Baker, 894 F.2d 1144 (10th Cir. 1990), for the proposition that '"private property owned by non-Indians but situated within the boundaries of any Indian reservation' is Indian Country." Response at 5 (quoting United States v. Baker, 894 F.2d at 1149). Consequently, the United States concludes that the location at which the collision occurred, even though privately held, is Indian Country. See Response at 6.

         The United States also argues, in the alternative, "[e]ven if... it is possible to travel from the collision site to private property west of the Rio Grande . . ., without setting foot on land belong to the Pueblo of Sandia, the Court should still determine that the collision site is 'Indian Country' for the purpose of 18 U.S.C. § 1151." Response at 6. The United States adverts to the Supreme Court of the United States' opinion in Seymour v. Superintendent of Washington State Penitentiary. 368 U.S. 351 (1962) ("Seymour"), in which the Supreme Court rejected '"an impractical pattern of checkerboard jurisdiction'" in which '"law enforcement officers operating in the area will find it necessary to search tract books in order to determine whether criminal jurisdiction over each particular offense, even though committed within the reservation, is in the State or Federal Government.'" Response at 6 (quoting Seymour, 368 U.S. at 358). In light of the Supreme Court's concern, the United States argues that, for the Court

[t]o hold that the segment of that land crossed by Highway 313, where the collision site is located, is not "Indian Country" would require officers patrolling that road or responding to calls along it to search tract books or historic patents in order to determine jurisdiction, contrary to the guidance provided by the Supreme Court.

         Response at 7. The United States contends, therefore, that the Court should deny the Motion and conclude that "the intersection of New Mexico Highway 313 and Wilda Drive in Bernalillo County, New Mexico, is 'Indian Country' for the purpose of federal law." Response at 7.

         4.The Hearing.

         The Court held an evidentiary hearing on the Motion on April 11, 2017. See April 11 Tr. at 1:1-3. The Court also heard argument regarding the Motion on April 12, 2017. See Draft Transcript of Motion Proceedings at 53:9-58:14, taken April 12, 2017 ("April 12 Tr"). At the April 11, 2017, hearing, the Court heard argument and testimony regarding Antonio's Motion. See April 11 Tr. at 18:23-25 (turning to Antonio's motion to dismiss for lack of jurisdiction).

         In support of his Motion, Antonio first offered the testimony of Doug Stretch, a mapping supervisor for the MRGCD who maintains and updates all the MRGCD's real property and irrigation records. See April 11 Tr. at 20:13-25 (Stretch). Stretch testified that the MRGCD "was formed in the 1920s to assist with the issues and impacts of the river with flood control, drainage and irrigation." April 11 Tr. at 21:7-10 (Stretch). According to Stretch, the MRGCD "acquired rights of way throughout all four counties in the middle valley; fee simple in some cases, easements in others." April 11 Tr. at 21:20-22 (Stretch). Stretch explained that "[i]n the cases of pueblo lands we have easements only. In cases of the rest of the valley, we would primarily have fee simple." April 11 Tr. at 23:9-11 (Stretch).

         During Stretch's testimony, Antonio introduced Defendant's Hearing Ex. A, Middle Rio Grande Conservancy District 2014 Property Map Sandoval/Bernalillo Counties, Map 20, introduced April 11, 2017 ("2014 MRGCD Map 20"). Stretch identified this document as "a property map that was generated by GIS in my department in 2014." April 11 Tr. at 22:3-4 (Stretch). Antonio also introduced a 1930 conveyance of land from Pedro C. Garcia and Beneranda S. Garcia to the MRGCD. See Receipt and Conveyance, introduced as Defendant's Hearing Ex. C, April 11, 2017 ("1930 Garcia Conveyance"). Stretch testified that the 1930 Garcia Conveyance is "a receipt conveyance deed giving the district fee simple right-of-way for that portion of tract 79 that's on MRGCD map 20." April 11 Tr. at 24:4-6 (Stretch).

         On cross-examination, Stretch communicated that the MRGCD acquired land in "fee simple ... for the purposes of a right-of-way." April 11 Tr. at 26:7-8 (Stretch). Stretch also explained that the 1930 Garcia Conveyance "was to purchase that piece of the property for the Albuquerque Riverside drain and levy and flood way." April 11 Tr. at 28:3-5 (Stretch). The 1930 Garcia Conveyance purports to convey:

All of that part of tract No. 79 on the Middle Rio Grande Conservancy District Property Map No. 20 required for right-of-way for the Albuquerque Riverside Drain and Levee and for Floodway, being all of said tract lying west of a line drawn from a point on the south boundary 948 feet, more or less, easterly from the east bank of the Rio Grande to a point on the north boundary 808 feet, more or less, easterly from the east bank of the Rio Grande and containing 28.78 acres, more or less.

1930 Garcia Conveyance at 1. Stretch testified that the conveyance describes the Rio Grande as the west boundary of the tract that Garcia conveyed to the MRGCD. See April 11 Tr. at 29:1-2 (Stretch) ("The west boundary of the tract is described as the bank of the Rio Grande."). Stretch said that, while he had not been to this property, he had "driven past the corners ... on the east side of the tract." April 11 Tr. at 30:16-17 (Stretch). Stretch also explained that the tracts 79 and 79A, on 2014 MRGCD Map 20, "have undergone a number of revision or platting actions that took portions of those [tr]acts." April 11 Tr. at 30:18-20 (Stretch). Stretch conceded on cross-examination that he "would . . . consider the corners established by the [Bureau of Land Management] to be accurate." April 11 Tr. at 31:1-8 (Murphy, Stretch).

         On redirect examination, Stretch testified that in the area that 2014 MRGCD Map 20 represents, from tract 79 to the Rio Grande, the MRGCD "did not need to request permission from Sandia Pueblo to install the [Albuquerque] drain." April 11 Tr. at 32:24-33:2 (Rivas, Stretch). On re-cross examination, Stretch also clarified - by pointing to the appropriate area on the 2014 MRGCD Map 20 - the land which MRGCD had purchased from Garcia. See April 11 Tr. at 33:16-22 (Murphy, Stretch) ("Q. [C]ould you please indicate again the portion between 79 and 79A and the river that we were just talking about? A. From the Riverside drain we would have purchased this piece for tract 79 and this piece for tract 79A1.").

         Next, Antonio offered testimony from Mack Guardiola, an investigator at the Federal Public Defender's Office. See April 11 Tr. at 38:17-39:2 (Guardiola). Antonio adverted to a 2017 Bernalillo County Map T11N-R3E-SEC 2, filed April 10, 2017 (Doc. 62-5) ("2017 Bernalillo County Map"), which the Bernalillo County Public Works Department provided to Guardiola, see April 11 Tr. at 39:8-10 (Rivas, Guardiola). Guardiola testified that, with respect to the 2017 Bernalillo County Map, "everything in white on this map was private claimed property either by deed or easement. But that everything in yellow belonged to and was managed by Sandia Pueblo." April 11 Tr. at 39:13-16 (Guardiola). Guardiola also testified that, as the 2017 Bernalillo County Map portrays, Bernalillo County manages the area in white. See April 11 Tr. at 39:17-19 (Rivas, Guardiola). The Court admitted the 2017 Bernalillo County Map into evidence. See April 11 Tr. at 43:5 (Court).

         The United States then offered the testimony of Earl Ortiz, a land surveyor with the Bureau of Indian Affairs, Southern Pueblos Agency. See April 11 Tr. at 44:20-22 (Ortiz). Ortiz testified that he personally reviewed the boundaries of the land conveyed to Garcia, see Tr. at 46:2-4 (Murphy, Ortiz), which he referred to as "PC [private claim] 364, " April 11 Tr. at 46:9 (Ortiz). Ortiz stated that the Bureau of Indian Affairs, Southern Pueblos Agency, "requested the Bureau of Land Management to resurvey the private claim PC 364 in 2010 . . . ." April 11 Tr. at 46:14-16 (Ortiz). Ortiz then averred that the Bureau of Land Management conducted that 2010 survey. See April 11 Tr. at 46:25 (Ortiz).[3]

         Ortiz testified that he personally inspected the corners of the BLM 2010 resurvey. See April 11 Tr. at 46:20-22 (Murphy, Ortiz). The United States tendered as exhibits two renditions of the Sandia Pueblo Base Map, filed April 14, 2017 (Doc. 68-l) ("Sandia Pueblo Base Map"), which the Court admitted as "Government's Exhibits 43 and 44." April 11 Tr. at 49:2-3 (Court). On the Sandia Pueblo Base Map, Ortiz identified "the Pedro Garcia Parcel." April 11 Tr. at 48:1-2 (Ortiz). Using the Sandia Pueblo Base Map as an exemplar, Ortiz then testified that what he identified as "the Pedro Garcia Parcel, " April 11 Tr. at 48:1-2 (Ortiz), was enclosed by the exterior boundary of the Sandia Pueblo, see Id. at 49:19-25 (Murphy, Ortiz) ("Q. Let me ask you is there a portion of Sandia Pueblo land lying between the western boundary of the Pedro Garcia tract and the western boundary of the Sandia Pueblo? A. Yes, it is. All of this portion in here belongs to the Pueblo of Sandia.").

         Regarding the 1930 Garcia Conveyance, Ortiz opined that "[i]t seems to convey a portion of the Pedro Garcia parcel that we're talking about, PC 364. Without a map, I'm just guessing that it must be the westerly portion from the Albuquerque Riverside drain of the Pedro Garcia grant. . . ." April 11 Tr. at 50:22-51:1 (Ortiz). Ortiz also testified as to the extent of the land that Garcia conveyed to the MRGCD, stating that "[t]he Pedro Garcia parcel extends over to the west side of the Riverside drain maybe another 300 feet." April 11 Tr. at 51:23-25 (Ortiz). West of that parcel, Ortiz averred, is "the rest of the Pueblo of Sandia land." April 11 Tr. at 52:9-10 (Ortiz). Ortiz further stated that the Pueblo of Sandia fenced and posted the land west of the Albuquerque Riverside drain and east of the Rio Grande. See April 11 Tr. at 53:2-8 (Murphy, Ortiz). Ortiz also stated that private holdings "within pueblos up and down the Rio Grande [are] fairly common." April 11 Tr. at 53:21-24 (Murphy, Ortiz). On cross-examination, Ortiz conceded that, "[i]f the river moved, " the boundaries of the Pueblo of Sandia might have changed. Tr. at 58:8 (Ortiz). April 11 Tr. at 58:3-8 (Rivas, Ortiz). On redirect, the United States focused Ortiz's attention on the Sandia Pueblo's eastern boundary in the Sandia mountains. See April 11 Tr. at 59:5-11 (Murphy, Ortiz). Upon the United States' inquiry, Ortiz opined that the distance from the Sandia Pueblo's eastern boundary to the Pedro Garcia tract is "about five miles." April 11 Tr. at 59:19 (Ortiz). The United States did not call another witness. See April 11 Tr. at 60:7-8 (Murphy).

         The Court then allowed the parties to argue the Motion. See April 11 Tr. at 60:12-13 (Court). Antonio made clear his argument that the location of the collision is situated within a peninsula of private land that juts into the Sandia Pueblo from the Rio Grande, because the Sandia Pueblo does not own property between the Albuquerque Riverside Drain and the Rio Grande. See April 11 Tr. at 64:15-18 (Rivas); April 11 Tr. at 65:3-16 (Rivas). Antonio pointed to Stretch's testimony that the MRGCD owns "private rights of way" between the Albuquerque Riverside Drain and the Rio Grande. April 11 Tr. at 65:8 (Rivas). Antonio contended that MRGCD privately held "land does go all the way to the river and across." April 11 Tr. at 76:11-12 (Rivas). Antonio relied on Stretch's testimony to argue that the MRGCD privately owns rights to the land between the Albuquerque Riverside Drain and the Rio Grande, because the MRGCD received those rights from private citizens. See April 11 Tr. at 76:17-19 (Rivas); April 11 Tr. at 76:23-77:1 (Rivas). The Court then asked Antonio what evidence shows that Pedro Garcia's privately held land extended to the Rio Grande. See April 11 Tr. at 77:15-16 (Court). Antonio responded: "Your Honor we do have an old map which we didn't submit for evidence, but this western boundary [of the] Sandia Pueblo has moved and we do believe that this entire peninsula up to the river was originally recognized as a piece of land not owned by the pueblo." April 11 Tr. at 77:17-22 (Rivas). Antonio also argued that the 1930 Garcia Conveyance and the 1933 and 1934 Garcia Patents confirm that Garcia's land, which he conveyed to the MRGCD, extended to the river and did not belong to the Sandia Pueblo. See April 11 Tr. at 78:3-5 (Rivas). The United States, for its part, conceded that the 1933 and 1934 Garcia Patents "settle the title of these specified portions as being private land, as against the Pueblo of Sandia." April 11 Tr. at 68:17-19 (Murphy). The United States disputed, however, that the location of the collision is situated within a peninsula of private land that juts into the Sandia Pueblo from the Rio Grande. See April 11 Tr. at 69:7 (Murphy) ("That's in dispute, your Honor."). The United States adverted to the 1933 and 1934 Garcia Patents, which state that "Pedro C. Garcia is entitled to a patent. . . within the Pueblo of Sandia, " 1933 Garcia Patent; 1934 Garcia Patent, and emphasized that the 1933 and 1934 Garcia Patents use the word "within" as "having the plain meaning of surrounded by." April 11 Tr. at 69:15-17 (Murphy). See April 11 Tr. At 69:22-23 (Murphy) ("[T]he document says within. I'm construing that as surrounded."). The United States summarized its position:

[T]he United States would submit that the land in question is shown in . . . United States 44 [i.e., the Pedro Garcia plot] is in fact entirely within the Pueblo of Sandia. That is to say that the western boundary of the Pedro Garcia plot lies inside the western boundary of the pueblo.

April 11 Tr. at 70:6-11 (Murphy).

         The United States also conceded that Sandia Pueblo does not own the land on which the collision occurred, see April 11 Tr. at 72:3-6 (Court, Murphy), but argued that "[i]t is Indian Country by virtue of its location . . . within [the exterior boundaries of] the pueblo land." April 11 Tr. at 72:13-23 (Murphy). The United States disputed Antonio's argument that the land from the collision site to the Rio Grande is privately held, because the Sandia Pueblo Base Map, which the United States represented "is a copy of a map that the BIA developed, " represents the Sandia Pueblo's outer boundaries as containing the Pedro Garcia parcel. April 11 Tr. at 75:18-19 (Murphy). The United States further relied on Ortiz' testimony that "he personally had gone to the corners established in the BLM's 2010 survey of the Pedro Garcia [parcel] and that [the Sandia Pueblo Base Map] is an accurate representation of its location." April 11 Tr. at 75:20-24 (Murphy). The United States also emphasized that, even if the MRGCD has rights of way, it received those rights of way from the Sandia Pueblo. See April 11 Tr. at 79:3-7 (Murphy) ("The [M]iddle Rio Grande Conservancy District [received its] rights of way from the pueblo. That doesn't mean that that land is not Indian Country, the existence of a right-of-way is just that.").

         The Court then inquired whether the United States believed that, in 1930, Garcia conveyed to the MRGCD rights that Garcia did not have. See April 11 Tr. At 79:8-10 (Court) ("So what are you saying that Mr. Garcia is doing here, getting some money for something he doesn't have."). The United States' responded: "I believe that Mr. Garcia [received] money for something he had Your Honor." April 11 Tr. at 79:11-12 (Murphy). The United States explained that Garcia conveyed his property to the MRGCD for the creation of the Albuquerque drain. See April 11 Tr. at 79:14-25. The United States contends, however, that Garcia's property did not extend to the Rio Grande. See April 11 Tr. at 86:15-25 (Murphy).

         The United States summarized its main argument:

[E]ssentially it has been stated and not to waste the Court's time I think the Court's aware that what the United States is saying is that first this is a private holding. It's shown by the document granting the patent that's signed by President Roosevelt that describes it as within Sandia Pueblo. It's shown by the testimony the United States has presented from Mr. Ortiz, the surveyor, not just the surveyor but one who had been on the site and actually determined the boundaries of the property and his testimony that that is within the western boundary of Sandia Pueblo.

April 11 Tr. at 86:15-25 (Murphy).

         The United States also argued, in the alternative, that "[i]t doesn't matter if [the privately held land within the Sandia Pueblo] is a peninsula or an island." April 11 Tr. at 70:22-23 (Murphy). The United States then adverted to Seymour, 368 U.S. at 357-58, and argued that, in Seymour, the Supreme Court reasoned that the definition of "Indian Country" provided by 18 U.S.C. § 1151 put to rest the jurisdictional issue concerning "lands lying within Indian reservations." April 11 Tr. at 71:4-5 (Murphy). See April 11 Tr. at 70:23-71:12 (Murphy). The United States further argued that Seymour held that checkerboard jurisdiction is not only impractical but also "avoided by th[e] plain language [of 18 U.S.C. § 1151]." April 11 Tr. at 71:14-15 (Murphy).

         The Court confirmed its understanding that Antonio's argument hinges on the existence of a peninsula of private land jutting into the Sandia Pueblo and encompassing the location of the crash site. See April 11 Tr. at 86:5-8 (Court, Rivas) ("Q. I understand if there is not a peninsula would you agree with me that you've got a hard case to make. A. Yes, your honor."). The Court then inquired as to the standard of proof. See April 11 Tr. at 89:20 (Court). The United States responded that it "must show as a matter of preponderance of the evidence that the location occurred within Indian Country within the meaning of § 1151." April 11 Tr. At 90:2-3 (Murphy).

         The Court gave Antonio the last word on the motion. See April 11 Tr. At ...


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