United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the government's Motion
for Pre-trial Determination of Indian Country Land Status.
Doc. 60. Mr. Vigil timely responded. Doc. 71. The government
then filed a timely reply. Doc. 89. The Court heard arguments
on this motion on July 29, 2019, at which time the parties
entered a Stipulation Regarding Land Status. The Court,
having considered the Motion, relevant law, and being
otherwise fully informed, finds that the motion will be
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, 41 F.3d 931, 933 (10th Cir.
1994) (citing McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936)). The Indictment charges
Kevin Vigil with two counts, both of which involve a
violation of 18 U.S.C. § 1152. See Doc. 25
(Indictment) at 1, 2.
Indian County Crimes Act, 18 U.S.C. § 1152, and the
Major Crimes Act, 18 U.S.C. § 1153, Congress
“conferred on the federal courts special criminal
jurisdiction over offenses committed in Indian
country.” Cohen's Handbook of Federal Indian
Law § 9.01, at 236-37 (Neil Jessup Newton et al.
eds., 2012). The crime must occur within “Indian
country” in order for there to be federal jurisdiction.
18 U.S.C. §§ 1152, 1153. The statute provides that
“[a]ny Indian who commits against the person or
property of another Indian or other person any of the
following offenses, . . . within the Indian country, shall be
subject to the same law and penalties as all other persons
committing any of the above offenses. . . .” 18 U.S.C.
§ 1153(a). According to § 1151, Indian country is
defined as follows:
Except as otherwise provided in sections 1154 and 1156 of
this title, the term “Indian country”, as used in
this chapter, means (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
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
18 U.S.C. § 1151.
government “moves the Court for a pre-trial
determination that the land on which the charged crimes in
this case occurred” is “located within the
exterior boundaries of the Ohkay Owingeh Pueblo” and
“therefore is Indian Country for purposes of federal
criminal jurisdiction.” Doc. 60 at 1. The location is:
1326B Camino Raphael, in Española, Rio Arriba County,
New Mexico, mainly in Section 25, Township 21N, Range 8E,
NMPM, within the San Juan Land Grant.
not disputed that the land falls within the exterior
boundaries of the Ohkay Owingeh Pueblo, a federally
recognized Indian Tribe. Id.; Doc. 71 at 1;
Stipulation Regarding Land Status ¶ 1. The parties
further stipulate that, on July 12, 1935, title to the tract
of land on which the charged crimes are alleged was
transferred to Antonio David Salazar and Ramona B. de Salazar
pursuant to the Pueblo Lands Act of 1924. Doc. 71 at 1-2, 4;
Stipulation ¶ 2. The Salazars were non-Indians.
Id. The 1935 patent transferring the land validly
conveyed the land at issue to the Salazar family.
See Doc. 71-1, Ex. A; Stipulation ¶ 3. At the
time of the alleged crimes, the land was privately held by
non-Indians. Stipulation ¶ 4.
government outlines the evidence it is prepared to present to
confirm the status of the land. See Id. at 4-6 &
Exs. This includes an April 11, 2018 certification by the
Ohkay Owingeh's Natural Resource Director that the
address “is located within the exterior boundaries of
the Ohkay Owingeh” Pueblo [Ex. 2], as well as Bureau of
Indian Affairs maps [Exs. 1, 3] showing the location of the
address at issue in relation to the Pueblo boundaries, and
the Federal Register showing the tribe is federally
recognized [Ex. 4].
Vigil argues that this Court lacks subject matter
jurisdiction. Doc. 71 at 1. He presents the 1935 Patent as
Exhibit A, which states that it “shall have the effect
only of a relinquishment by the United States of America and
the Indians of said Pueblo.” Id. at 2, Ex. A.
He notes that Exhibit F, the supplemental plat containing the
tract of land conveyed to the Salazars, states that it
“represents the survey of certain tracts of land within
the San Juan Pueblo Grant to which the Indian title has been
extinguished according to the findings of the Pueblo Lands
Board.” Id. at 7, Ex. F. In addition, Mr.
Vigil submitted a letter from Thomas Aragon, the Planning and
Zoning Director of Rio Arriba County, stating that Antonio
David Salazar and his wife “met the requirements
necessary under a federal land claim. In doing so, he and his
wife were awarded a U.S. Patent for the land thereby
extinguishing any tribal claim to the land.”
Id. at 71-1 [Ex. E]. The defense thus requests that
the case be dismissed as the Court must presume it lacks
subject matter jurisdiction. Id. at 1.
reply, the government points out that the land at issue was
transferred by patent issued by the United States executive
branch on July 12, 1935, but under the plain language of the
2005 amendments to the Pueblo Land Act, there are no
exceptions for lands held privately by non-Indians unless
extinguished by Congress-that is, all land ...