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United States v. Vigil

United States District Court, D. New Mexico

August 16, 2019

KEVIN VIGIL, Defendant.



         THIS 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 GRANTED.


         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, 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.

         In the 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 same.

18 U.S.C. § 1151.

         The 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.


         It is 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.

         The 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].

         Mr. 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.

         In its 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 ...

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