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State v. Salazar

Court of Appeals of New Mexico

January 15, 2020

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
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

          ZACHARYA A. 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.[1]

         BACKGROUND

         {¶2} 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 [d]amage to [p]roperty of a [h]ousehold [m]ember and [b]attery [a]gainst a [h]ousehold [m]ember." 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, [2] that his probation could not be revoked based on alleged violations of New Mexico's 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 1/4 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) ...


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