Hydro Resources, Inc. v. USEPA

608 F.3d 1131

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 24, 2009
• Docket: 07-9506
• Status: Published

Opinion

FILE D United States Court of Appeals Tenth Circuit

PU B L ISH June 15, 2010 Elisabeth A. Shumaker U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court

T E N T H C IR C U IT

HYDRO RESOURCES, INC.,

Petitioner , v.

UNITED STATES ENVIRONM ENTAL PROTECTION AGENCY ,

Respondent ,

and

NAVAJO NATION,

Intervenor. No. 07-9506

STATE OF NEW M EXICO; NATIONAL M INING ASSOCIATION; UNITED NUCLEAR CORPORATION; STATE OF COLORADO; STATE OF KANSAS; STATE OF UTAH; STATE OF W YOM ING; THE PUEBLO OF SANTA CLARA; THE PUEBLO OF SANDIA; THE PUEBLO OF ISLETA; and THE PUEBLO OF ZIA,

Amici Curiae.

O N PE T IT IO N FO R R E V IE W O F A FIN A L O R D E R O F T H E U N IT ED ST A TE S E N V IR O N M E N T A L PR O TE C T IO N A G E N C Y M arc D. Flink (Alfred C. Chidester and Casie D. Collignon, Baker & Hostetler LLP, Denver, Colorado, and Jon J. Indall, Comeau, M aldegen, Templeman & Indall, LLP, Santa Fe, New M exico, with him on the briefs) Baker & Hostetler LLP, Denver, Colorado, for Petitioner.

David A. Carson (Ronald J. Tenpas, Acting Assistant Attorney General, Ignacia S. M oreno, Assistant Attorney General, and John C. Cruden, Deputy Assistant Attorney General, with him on the briefs), United States Department of Justice, Environment and Natural Resources Division, Denver, Colorado, for Respondent.

Paul E. Frye (Louis Denetsosie, Attorney General, and David A. Taylor, Navajo Nation Department of Justice, W indow Rock, Arizona, and Jill E. Grant, Nordhaus Law Firm, LLP, W ashington, D.C., with him on the briefs), Frye Law Firm, P.C., Albuquerque, New M exico, for Intervenor.

Gary K. King, Attorney General, and Christopher D. Coppin, Special Assistant Attorney General, Albuquerque, New M exico, and Justin M iller, Chief Counsel, Office of the Governor, Santa Fe, New M exico, filed an Amicus Curiae brief for the States of Colorado, Kansas, New M exico, Utah, and W yoming.

Anthony J. Thompson and Christopher S. Pugsley, Thompson & Simmons, PLLC, W ashington, D.C., filed an Amicus Curiae brief for National M ining Association in support of Petitioner.

Robert W . Lawrence, Jonathan W . Rauchway and Constance L. Rogers, Davis Graham & Stubbs LLP, Denver, Colorado, filed an Amicus Curiae brief for United Nuclear Corporation in support of Petition for Rehearing en banc and in support of reversal.

Gary K. King, Attorney General, and Christopher D. Coppin, Special Assistant Attorney General, Albuquerque, New M exico; Justin M iller, Chief Counsel, Office of the Governor, Santa Fe, New M exico; M ark L. Shurtleff, Utah Attorney General, Salt Lake City, Utah; Steve Six, Attorney General of Kansas, Topeka, Kansas; John W . Suthers, Attorney General of Colorado, Denver, Colorado; and Bruce A. Salzburg, Attorney General of W yoming, Cheyenne, W yoming, filed an Amicus Curiae brief for the States of Colorado, Kansas, New M exico, Utah, and W yoming in support of Petitioner.

-2- Richard W . Hughes, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Santa Fe, New M exico, and David C. M ielke, Sonosky, Chambers, Sachse, M ielke & Brownell, Albuquerque, New M exico, filed an Amici Curiae brief for Pueblos of Santa Clara, Sandia, Isleta and Zia in support of Respondent.

Before B R ISC O E , Chief Judge, E B E L , T A C H A , K E L L Y , H E N R Y , L U C E R O , M U R PH Y , O ’B R IE N , T Y M K O V IC H , G O R SU C H , and H O L M ES , Circuit Judges.

G O R SU C H , Circuit Judge, joined by T A C H A , K EL L Y , O ’B R IE N , T Y M K O V IC H , and H O LM E S, Circuit Judges.

Everyone agrees that Hydro Resources, Inc. (“HRI”) must obtain a Safe

Drinking W ater Act (“SDW A” or “the Act”) permit to mine its property. The

only question is: from whom? The Environmental Protection Agency (“EPA” or

the “Agency”), which administers the Act, has chosen to delegate its permitting

authority in the State of New M exico to the New M exico Environment

Department (“NM ED”), but with one exception: EPA has not delegated its

authority to issue permits for mining activities on “Indian lands.” Thinking its

land hardly qualified as “Indian land” — HRI owns its property in fee, it pays

county real estate taxes, the land is uninhabited, and it is not inside any Indian

reservation or otherwise set aside and superintended for Indian use — the

company proceeded to apply for, and obtain, a permit from NM ED. Initially, EPA

professed no quarrel with this, and it has never questioned NM ED’s

-3- administration of the Act. But eventually a dispute broke out over the status of

HRI’s land and, after years of regulatory wrangling, EPA issued a “final land

status determination” expressing its judgment that HRI’s land qualifies as “Indian

land.” As a result, EPA ruled, HRI must seek and obtain its SDW A permit from it

rather than NM ED.

How did EPA reach this conclusion? By regulation, EPA chose to define

the term “Indian lands” — the only lands for which it did not cede primary

permitting authority to NM ED — to be synonymous with “Indian country,” as that

term is defined by 18 U.S.C. § 1151. Section 1151, in turn, provides primary

federal criminal jurisdiction over certain territories: “Indian reservation[s],”

“dependent Indian communities,” and “Indian allotments.” So it is that, for EPA

to exercise primary permitting authority in this case, the Agency had to argue that

the federal government, rather than the State of New M exico, possesses primary

criminal jurisdiction over HRI’s private property. In this case, EPA took the

position that HRI’s land is Indian country and subject to federal jurisdiction

because it is part of a “dependent Indian communit[y]” under § 1151(b).

But whatever HRI’s land is, it can’t be that. In Alaska v. Native Village of

Venetie Tribal Government, 522 U.S. 520 (1998), the Supreme Court identified

two “requirements” of all “dependent Indian communities” under § 1151(b).

First, “the land in question” must be an “Indian community” in the sense that it

-4- has been explicitly “set aside” by Congress (or the Executive, acting under

delegated authority) “for the use of the Indians as Indian land.” Id. at 527, 531.

Second, “the land in question” must be “dependent” in the sense that it is “under

federal superintendence.” Id. at 527. HRI’s land — the land in question in

EPA’s final land status determination — is neither of these things.

Despite this, EPA argued before a panel of this court that we should cast

our gaze beyond the particular land in question. In the Agency’s view, because

some sufficiently significant (though unspecified) percentage of neighboring

lands — what EPA calls “the community of reference” — is Indian country,

HRI’s land must be considered Indian country, too. In defense of its view, EPA

pointed to certain of this circuit’s cases, most pre-Venetie, suggesting the

approach it took. Deeming itself bound by the same authority, a panel of this

court upheld EPA’s classification of HRI’s land as Indian country. Hydro Res.,

Inc. v. U.S. EPA, 562 F.3d 1249 (10th Cir. 2009) (“HRI II”).

HRI responded to all this with a petition for en banc review. The company

argued that the “community of reference” approach advanced by EPA and certain

of this circuit’s cases is inconsistent with Venetie. HRI submitted, too, that our

cases are in conflict with each other — while some follow EPA’s approach, others

after Venetie have abjured the “community of reference” test, as have decisions in

-5- our sister circuits. Seeking to sort all this out, we granted HRI’s request for en

banc review.

Having now heard the case anew, we find ourselves compelled to vacate

EPA’s final land status determination. EPA’s interpretation cannot be reconciled

with the Supreme Court’s explanation of § 1151(b)’s plain meaning. Venetie

explicitly rejected a Ninth Circuit test composed of the very factors used in the

“community of reference” test employed by EPA and certain of our pre-Venetie

cases. Neither is the amorphous “community of reference” test compatible with

the history and structure of the statute we are charged to interpret, or with the

Supreme Court’s longstanding direction that criminal statutes should be

interpreted clearly and precisely to afford fair warning of their reach.

None of this is to say that EPA must tether its SDW A permitting authority

to a statute defining the scope of the federal government’s criminal jurisdiction

over Indian lands. Had EPA chosen to define its authority under the SDW A in a

different way, the result in this case might have been different. But we decide the

cases as they come to us. And in this case, heeding the Supreme Court’s

commands in Venetie requires us to grant HRI’s petition for review and vacate the

Agency’s final land status determination.

I

-6- The history of this dispute is long and tangled. Even so, some appreciation

of its twists and turns is essential. W e begin by examining briefly the history of

the land in question (Section I.A), the regulatory scheme governing that land and

the parties before us (Section I.B), the parties’ first lawsuit before this court

(Section I.C), its subsequent remand to EPA (Section I.D), and the current appeal

(Section I.E), all before we turn to address our jurisdiction and standard of review

(Section II) and, at last, the merits of this appeal (Section III).

A

The land at issue in this case lies in what is commonly known as the

“checkerboard” region of northwestern New M exico. See generally Pittsburg &

M idway Coal M in. Co. v. Yazzie, 909 F.2d 1387, 1389-92 (10th Cir. 1990). This

region abuts the southern and eastern boundaries of the Navajo Reservation

originally created by an 1868 treaty between the United States and the Navajos.

Id. at 1389. And a checkerboard it is, marked by alternating parcels of land

owned by the state, the federal government, the Navajo Nation, individual

Navajos, and private persons and entities. See id. at 1423 app. A (map section

marked “J”); Appendix. 1

1 The Appendix reproduces a map of the Church Rock Chapter and its boundaries. The map was prepared as part of the Church Rock Chapter’s Land Use Plan and included in the record before the Agency. See R. 16b; R. 40 at B- 39.

-7- The checkerboard seems to have had its start with the railroad. In the late

nineteenth century, the federal government granted certain lands in the region to

railroad companies in an effort to induce construction. “These grants typically

consisted of alternating one-mile-square parcels on each side of the planned line

for the railroad tracks . . . .” HRI II, 562 F.3d at 1254 n.3. From this, a

checkerboard was born, aided and abetted by the fact that other tracts of land in

this area, though still formally held in the public domain, were occupied by

Navajos, while still others were being rapidly snapped up by white and M exican

settlers. Yazzie, 909 F.2d at 1390.

And this was just the start of the complications. As Judge Anderson

explained in his thorough history of the area, by the turn of the twentieth century

federal officials became concerned that the new settlers were “appropriating the

limited water holes for themselves.” Id. at 1390. So, in an effort to protect the

Navajo population, President Theodore Roosevelt signed two executive orders,

E.O. 709 and E.O. 744, in 1907 and 1908, respectively. The combined effect of

these orders was to add much of the land in this area to the Navajo Reservation.

Id. at 1391. At the same time, the President’s orders expressly preserved

preexisting private property rights, including the railroad land grants. Thus, “the

extension to the Reservation” further complicated the variegated character of the

area. Id. at 1391 n.6.

-8- Still more checkerboarding followed. It seems the government did not

intend the area to become a permanent addition to the Reservation. See id.

Instead, the plan apparently was to allow Indians 2 then living in the area a brief

period to claim and “receive 160-acre allotments in severalty without interference

from whites and M exican stockmen.” Id. at 1390. After that, any unallotted land

was to revert from reservation status back to the public domain. See id. And this

is exactly what transpired in 1911 by virtue of another executive order, this one

issued by President Taft. Id. at 1392. Since then, land in this area has changed

hands many times in still more complicating ways. In 1928, for example,

Congress appropriated funds for the purchase of some privately held former

railroad tracts in order that they might be held by the federal government for the

benefit of the Navajo. HRI II, 562 F.3d at 1254 n.3. M eanwhile, other parcels

now belong to the New M exico state government or remain in the hands of non-

Indians.

HRI’s land falls into this final category. In 1970, the federal government

sold 160 acres in the southeast quadrant of “Section 8,” Township 16N, Range

2 W e recognize that “most tribal members do not refer to themselves as generic ‘Indians’ or ‘Native Americans,’ but rather as constituents of particular groups, such as Hopi or Cheyenne” or Navajo. Cohen’s Handbook of Federal Indian Law, § 3.01 at 134 n.1 (Nell Jessup Newton et al. eds., 3d ed. 2005). W e use the general term “Indian” throughout this opinion in light of its use in the relevant statutory language and precedents.

-9- 16W , to the United Nuclear Corporation. See Appendix. In turn, United Nuclear

later sold the land to HRI. There are no inhabitants on HRI’s land. Except for

the brief period from 1907-11, it has not been set aside by Congress for Indians or

placed under federal superintendence for their benefit. The remaining three

quadrants of Section 8 land not owned by HRI are still owned in fee by the United

States. R. 15c App. XI at para. 3. Other adjacent sections include parcels held in

trust for the Navajo by the United States (Sections 9 and 17) and land owned by

the State of New M exico (Section 16). See Appendix.

Section 8 lies within M cKinley County, New M exico. The county seat

resides in the city of Gallup, “approximately 11 miles southwest of the Section 8

land.” HRI II, 562 F.3d at 1254. The state and county exercise jurisdiction over

private lands throughout the checkerboard area. So, for example, the State of

New M exico maintains the only road access to Section 8, State Highway 566,

while M cKinley County shares responsibility with the federal government for

other roads in the vicinity. HRI II, 562 F.3d at 1254. The County provides

essential public services to private lands like HRI’s, including fire, police, and

emergency services. Id. The Gallup/M cKinley County public school system

offers public education and school transportation for those in the area. Id. And

HRI pays annual property taxes on its land to M cKinley County. Id.

-10- Section 8 also falls within the boundaries of the Navajo Church Rock

Chapter. The Chapter is a political and social unit of the Navajo Nation, with its

boundaries and membership determined by the Tribe. See id. at 1255. 3 The

current boundaries as drawn by the Tribe include tracts owned in fee by the

United States, privately held lands, and Navajo Nation lands. Id. At the same

time, the Chapter’s boundaries exclude at least one parcel of state land, Red Rock

State Park, thus creating a sort of “doughnut hole” in the middle of the Chapter.

See Appendix. W hile most of the land in the Chapter lies north of Interstate 40,

the Chapter does include a narrow traverse across the Interstate and a small tract

on the highway’s south side. See id.

3 The EPA’s final land status determination states that the “Church Rock Chapter was first established in 1927 by the United States as a subdivision of the Navajo Nation government, to facilitate local Navajo self-government and to foster improved communications between Navajos and federal agencies.” R. 44 at 8. HRI disputes this conclusion. First, HRI argues that the 1927 date makes no sense, because it was a year before the government began repurchasing for Indian use much of the land that now comprises the Chapter. Second, HRI argues that the record contains no support for the assertion that the federal government established the Church Rock Chapter. Upon review of the source cited by EPA, it appears HRI may have the better of the argument. W hile the source suggests that the federal government played some undefined role in helping to establish Navajo chapters beginning in 1927, it does not mention the Church Rock Chapter, let alone indicate that the federal government established it. See Robert Young, Navajo Yearbook 191 (1958). The record, at least as briefly adduced by the parties in this litigation, thus suggests that the Navajo Nation, not the federal government, established the Chapter.

-11- The political and social center of the Church Rock Chapter is the Chapter

House, located in the village of Church Rock, six miles east of Gallup and about

six miles south of Section 8. See id. M uch of the membership of the Chapter

lives in close proximity to the Chapter House, and Chapter members typically

visit the Chapter House at least once a month for meetings and social activities

and services. R. 40 at B-29. At the same time, nearly half of the Chapter’s

members are employed in Gallup and so travel there frequently, compared to just

2% who are employed within the Chapter’s boundaries. R. 40 at B-24. The

Chapter recognizes that private lands within its boundaries are subject to state

jurisdiction and control, R. 40 at C-16, and the Chapter provides no infrastructure

or services to HRI’s portion of Section 8, R. 6 at 2. Indeed, a significant portion

of the territory within the Chapter, including Section 8, consists of “rugged

mountain ranges, canyons, and highlands” that, according to the Chapter, are “not

suitable for community or industrial development.” R. 40 at B-40.

B

After purchasing its Section 8 land, HRI sought to mine it for uranium. In

preparation, the company obtained various regulatory permits. Because HRI’s

proposed mining operations contemplated the use of an underground injection

system to extract the ore, SDW A regulations required the company to obtain

-12- approval of an underground injection control (“UIC”) plan aimed at mitigating the

risk of contamination to potential drinking water sources. 4

W hile EPA is responsible for administering the SDW A, Congress

anticipated that the states would, at least sometimes, serve as the primary entities

responsible for reviewing and granting or denying UIC permits. In the SDW A,

Congress told EPA it could “either approve, disapprove, or approve in part and

disapprove in part, [each] State’s” application to become the primary UIC

permitting authority. 42 U.S.C. § 300h-1(b)(2). The Act then went on to direct

EPA to promulgate certain standards that the state UIC regulatory programs

would have to meet to achieve this distinction. See 42 U.S.C. § 300h; 40 C.F.R.

§ 144.1(e). Exercising these statutory authorities granted to it, EPA some time

ago set standards for state UIC programs and approved NM ED’s application to

serve as the primary UIC permitting authority in the State of New M exico, except

4 “Underground injection . . . means the subsurface emplacement of fluids by well injection . . . .” 42 U.S.C. § 300h(d)(1)(A). Basically, HRI seeks to pump water into the ground and circulate that water in order to pull uranium to the surface where it can be easily collected. This method is apparently less onerous than manually excavating the rock from underground and removing the uranium later. R. 15c App. II at 1, 3-4 (“Instead of manually excavating the rock from underground as in conventional mining and placing it in large piles on the surface, water wells are used, very much like those for a home. Oxygen is added to the native ground water from the ore body, and that water is continuously circulated until most of the uranium is recovered.”).

-13- with respect to underground injection wells “on Indian lands.” 40 C.F.R.

§§ 147.1600-147.1601.

It is here the real regulatory complications begin. How do we know when

underground injection wells lie on “Indian lands”? By regulation, EPA has

chosen to define the phrase “Indian lands,” when it appears in SDW A regulations,

to mean “Indian country,” as that term is defined by 18 U.S.C. § 1151. See 40

C.F.R. § 144.3. Adopted in 1948, § 1151 is part of the criminal code and

circumscribes where the federal government or a tribe, rather than a state, may

exercise primary criminal jurisdiction. At the same time, the statute has been

used often, as EPA has chosen to use it here, to define the scope of federal

authority over civil and regulatory matters. See Venetie, 522 U.S. at 527; Cohen’s

Handbook of Federal Indian Law § 3.04[1] (Nell Jessup Newton et al. eds., 3d ed.

2005) (hereinafter “Cohen (2005)”). 5

Section 1151 defines “Indian country” as encompassing three categories of

land:

5 W hile statutory criminal jurisdiction has been confined to “Indian country” as defined in § 1151, it has been said that Congress enjoys “plenary power over Indian affairs,” Venetie, 522 U.S. at 531 n.6, by virtue of Article I, Section 8, Clause 3 of the Constitution, which ascribes to Congress exclusive authority over “Commerce . . . with the Indian Tribes.” W hether and how far Congress’s constitutional authority to authorize federal “Indian country” jurisdiction might proceed beyond the limits of § 1151 is not before us in this case.

-14- (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.

Having thus defined the scope of “Indian lands” under its SDW A

regulations, EPA still faced the question: W ho, if not the state, should enjoy

primary authority to regulate wells on those lands? The SDW A entrusts primary

UIC permitting authority to EPA but allows the Agency to delegate that authority

to tribes, much as it does to states, at least with respect to permit applications

“within the area of the Tribal Government’s jurisdiction.” 42 U.S.C. § 300j-

11(b)(1)(B); see also 42 U.S.C. § 300h-1(e). And by regulation, EPA has

indicated that a “Tribal Government’s jurisdiction” for these purposes may not

extend beyond “Indian country,” as that term is (once again) defined in § 1151.

See, e.g., Navajo Nation; Underground Injection Control (UIC) Program; Primacy

Approval, 73 Fed. Reg. 65,556-01, at 65,558-65,560 (Nov. 4, 2008) (“EPA

recognizes that 18 U.S.C. 1151 . . . generally defines the limit of the area over

which a Tribe may demonstrate authority.”).

-15- In 1994, EPA chose to exercise this authority to delegate primary UIC

permitting authority to the Navajo Nation for lands within the Navajo

Reservation, as well as for certain other Navajo allotments and Navajo fee lands.

HRI, Inc. v. EPA, 198 F.3d 1224, 1232 (10th Cir. 2000) (“HRI I”). At the same

time, however, EPA declined to approve the Tribe’s application to assume

primary UIC permitting authority over all privately held fee lands in the

checkerboard region where Section 8 resides. Id. at 1233. It was and is

undisputed that these lands do not qualify as part of any Indian reservation within

the meaning of § 1151(a), or as Indian allotments within the meaning of

§ 1151(c). Though the Tribe sought to persuade EPA that the lands nonetheless

qualify as “Indian country” because, given social and political affinities in the

area, they are part of a larger “dependent Indian community” within the meaning

of § 1151(b), EPA rejected this claim. The Agency explained its view that the

Tribe had “not demonstrated that it has jurisdiction” over the lands in question, R.

13b at 239 (emphasis in original), adding that, “[b]efore it could determine if a

parcel of land is part of a dependent Indian community (and therefore is Indian

country), EPA would need more information about that particular parcel of land.”

Id. at 238. The Agency thus left open at least the hypothetical possibility that

there could be “Indian lands” within the checkerboard area over which it, rather

than the Navajo Nation, might retain primary UIC regulatory authority — at least

-16- until such time as the Tribe could come forward with evidence showing that the

“particular parcel of land” in question qualified as Indian country under

§ 1151(b).

C

It is perhaps unsurprising that such a complex land ownership scheme,

overlaid by such a complex regulatory scheme, might beget equally complex

litigation. And so it did when HRI tried to ascertain which regulatory authority

held the UIC permit it needed. HRI knew that the Tribe didn’t have permitting

authority over its land, at least not yet. The remaining choices HRI thus

confronted were EPA or NM ED. Not conceiving of its land as part of a

“dependent Indian community” within the meaning of § 1151(b), and absent any

EPA decision holding otherwise, HRI requested a UIC permit from NM ED. For

their part, New M exico state authorities agreed that HRI’s land wasn’t Indian

land, reviewed HRI’s UIC application, and in 1989, approved it.

As part of the permitting process, NM ED sought from EPA a mandatory

“aquifer exemption” for HRI’s mining activities, because those activities

contemplated the introduction of contaminants into an aquifer. Generally

speaking, the SDW A prohibits contamination of underground aquifers. See 42

U.S.C. § 300h(b). But because certain aquifers “will never be used as sources of

drinking water, . . . EPA [has] adopted criteria for exempting [them] from SDW A

-17- requirements.” HRI I, 198 F.3d at 1233. In due course, EPA approved NM ED’s

requested exemption because, in EPA’s judgment, the aquifer under HRI’s land

“does not currently serve as a source of drinking water” and “cannot now and will

not in the future serve as a source of drinking water.” 40 C.F.R. § 146.4 (a) &

(b); see also HRI I, 198 F.3d at 1234; R. 15c App. II at 2 (noting that, even before

any mining activity, “water quality at the Section 8 site is mineralized with

naturally-occurring uranium, and uranium decay products . . . exceeding U.S. EPA

drinking water [standards].”).

About this time, however, a jurisdictional dispute arose regarding HRI’s

planned mining operations on Section 8 and on nearby Section 17. The dispute

proved protracted as state, federal, and tribal authorities wrangled over whether

HRI’s UIC operations should be regulated by NM ED or EPA. See HRI I, 198

F.3d at 1234-35. At some point during this back-and-forth, the Navajo Nation

presented what EPA considered to be “substantial arguments to support its claim

that Section 8 is within Indian country.” Id. at 1235 (quoting EPA opinion letter

of July 14, 1997). Based on these assertions, EPA deemed Section 8’s Indian-

land status to be “in dispute.” Id.

Eventually, in the late 1990s, HRI and NM ED sought review of EPA’s

assessment in this court. HRI argued that its Section 8 land wasn’t a “dependent

Indian community” within the meaning of § 1151(b), and so primary UIC

-18- permitting authority rested with NM ED, not EPA or the Tribe. 6 For its part, EPA

asked the court to remand the matter because it still hadn’t reached a final

decision on the question of Section 8’s status as Indian country. See HRI I, 198

F.3d at 1236 n.6 (quoting EPA Brief). EPA explained its delay by pointing to the

Supreme Court’s then-recent decision in Venetie, which indicated that to qualify

as Indian country under § 1151(b) “the land in question” must be set aside for

Indians and federally superintended. Venetie, 522 U.S. at 531. In arriving at this

holding, EPA noted, the Supreme Court expressly rejected a “more textured”

balancing test adopted by the Ninth Circuit, a test the Ninth Circuit consciously

modeled on preexisting Tenth Circuit jurisprudence. See State of Alaska ex rel.

Yukon Flats Sch. Dist. v. Native Vill. of Venetie Tribal Gov’t, 101 F.3d 1286,

1291-93 (9th Cir. 1996) (quoting Pittsburg & M idway Coal M ining Co. v.

Watchman, 52 F.3d 1531, 1545 (10th Cir. 1995)). EPA defended its remand

request by stressing that it hadn’t yet had an adequate chance to “develop a record

6 HRI also sought review of EPA’s assertion of jurisdiction over its mining activities on Section 17. See HRI I, 198 F.3d at 1243-44. Unlike its Section 8 land, HRI owns only the mineral rights for Section 17, while the federal government holds the Section 17 land in trust for the Navajos. The panel in HRI I held that Section 17 was Indian country under § 1151(a) and thus HRI’s mining of that land was subject to EPA’s regulatory jurisdiction. Id. at 1249-54. HRI did not seek review of that issue with the en banc court or file a petition for certiorari with the Supreme Court. Consequently, all that remains in dispute is HRI’s Section 8 land.

-19- below with the Venetie standard in mind.” HRI I, 198 F.3d at 1236 n.6 (quoting

EPA Brief at 47).

Shortly before Venetie, this court in 1995 developed a two-step, multi-

variable balancing test for identifying “dependent Indian communities” under

§ 1151(b), sometimes called the “Watchman test.” At its “first step,” the test

required the identification of an “appropriate community of reference.”

Watchman, 52 F.3d at 1543-44. W hen identifying an appropriate “community of

reference,” we said, a court had to consider three factors: (1) “the geographical

definition of the area proposed as a community,” United States v. Adair, 111 F.3d

770, 774 (10th Cir. 1997); (2) “the status of the area in question as a community,”

Watchman, 52 F.3d at 1543; and (3) “the community of reference within the

context of the surrounding area,” id. at 1544. W ithin the second factor, the

Watchman test called on us to inquire whether there is “an element of

cohesiveness . . . that can be manifested either by economic pursuits in the area,

common interests, or needs of the inhabitants as supplied by that locality,” and

consider whether the proposed community qualifies as “a mini-society consisting

of personal residences and an infrastructure potentially including religious and

cultural institutions, schools, emergency services, public utilities, groceries,

shops, restaurants, and the other needs, necessities, and wants of modern life.”

Id. at 1544. And within the third factor, we considered which public entity or

-20- entities “provide infrastructure, government, essential services, and employment”

for the community. Adair, 111 F.3d at 775.

All of this, however, was just the beginning. Having identified a

“community of reference,” our test then sought, at the “second step,” to determine

whether that community qualified as a dependent Indian community. And this,

we said, required the balancing of still more factors: “(1) whether the United

States has retained title to the lands which it permits the Indians to occupy and

authority to enact regulations and protective laws respecting this territory; (2) the

nature of the area in question, the relationship of the inhabitants in the area to

Indian tribes and to the federal government, and the established practice of

government agencies toward the area; (3) whether there is an element of

cohesiveness manifested either by economic pursuits in the area, common

interests, or needs of the inhabitants as supplied by that locality; and (4) whether

such lands have been set apart for the use, occupancy and protection of dependent

Indian peoples.” Watchman, 52 F.3d at 1545 (internal quotation marks and

alterations omitted). Only the first and fourth of these elements, however, added

entirely new concepts to the mix; the second and third elements overlapped in

significant measure with elements of the antecedent “community of reference”

analysis. Even so, Watchman instructed the use of these elements at both steps in

-21- the analysis and held that, if both steps were satisfied, all land inside the

“community of reference” qualified as “Indian country.” See id.

In HRI I, a panel of this court acknowledged that Venetie altered this legal

landscape and that EPA had not yet had a chance to issue a final determination

about the status of HRI’s land in light of it. Accordingly, the panel held that

EPA’s analysis of HRI’s Section 8 land wasn’t yet ripe for review and remanded

the matter to the Agency for a final determination of the legal status of HRI’s

land. HRI I, 198 F.3d at 1237, 1254. After reaching this holding, however, the

panel proceeded “[i]n dicta,” State v. Frank, 52 P.3d 404, 408 (N.M . 2002), to

consider Venetie’s possible impact on this circuit’s Watchman test. On the one

hand, the panel acknowledged that “Venetie may require some modification” to

our test. 198 F.3d at 1248; see also id. at 1254. But, on the other hand, the panel

also suggested that “nothing in Venetie speaks to the propriety of the first element

of that test — determination of the proper community of reference.” Id. at 1248.

D

W ith that for guidance, EPA on remand proceeded to invite comments from

interested parties. Ultimately, the Agency received comments from the State of

New M exico, M cKinley County, various corporations, and more than one hundred

Navajo allottees arguing that HRI’s Section 8 land should not be considered part

of a dependent Indian community. At the same time, the Agency received

-22- comments from the Navajo Nation, the Navajo Church Rock Chapter, and many

others arguing that the land should be considered Indian country. In addition to

all this, EPA consulted the Interior Department’s Solicitor’s Office and the

Navajo Nation.

At the end of its review, the Agency acknowledged that “[s]everal

commenters have suggested that the community-of-reference analysis is no longer

intact.” EPA Land Status Determination, R. 44 at 4. Yet, seeming to take its cue

from HRI I’s intimation that Venetie had not spoken “directly” to Watchman’s

threshold community of reference test, EPA concluded that the test survived

Venetie — at least in the Tenth Circuit, if not elsewhere. Id. At the same time,

the Agency decided that Venetie modified Watchman’s second step, replacing its

four-part test with a two-part test focused on how much of the “community of

reference” is set aside for Indians and federally superintended. If some

sufficiently high, though unspecified, percentage of the “community of reference”

met these requirements, EPA would treat all land within the community of

reference as Indian country under § 1151(b). Id. at 11-12.

Turning to apply its understanding of § 1151(b) to the facts of this case,

EPA concluded that the Navajo Church Rock Chapter was “the appropriate

community of reference” at Watchman’s first step because the Chapter functions

as a “mini-society.” Id. at 8-9. EPA did not, however, pause to consider whether

-23- the appropriate community of reference might be M cKinley County, and it

considered Gallup as a candidate only briefly in a footnote. Id. at 10 n.64.

Neither did EPA consider whether Section 8 might be part of no community at all;

rather, its analysis seemed to presuppose that every piece of land is part of some

community of reference.

After having identified what it considered to be the appropriate community

of reference, EPA then applied Venetie’s set-aside and federal superintendence

requirements to that community. W hile HRI’s Section 8 land itself was

indisputably neither set aside for Indian use nor federally superintended, EPA

reasoned that all of Church Rock Chapter is Indian country because a sufficiently

high percentage of the land within its boundaries are set aside for Indian use and

federally superintended. So it is that, by this series of steps, EPA determined that

Section 8 “is within the dependent Indian community of the Church Rock Chapter

and, thus, is Indian country.” Id. at 13. And so it is that EPA required HRI to

file a new UIC permit application with the federal government.

E

Again HRI petitioned this court for review. The company argued, much as

it had in HRI I, that Venetie abrogated the Watchman test on which EPA relied in

justifying and conducting its threshold “community of reference” inquiry. In

-24- HRI’s view, Venetie said that § 1151(b) requires a court to ask only whether “the

land in question” is set aside for Indian use and federally superintended, no more.

The panel, considering itself constrained by HRI I’s suggestion that

Watchman’s community of reference test survived Venetie, rejected HRI’s

argument and upheld the agency’s final land status determination. HRI II, 562

F.3d at 1261. Judge Frizzell, sitting by designation, dissented in part. He

questioned whether Section 8 is fairly included within the Church Rock

community of reference, given that it is uninhabited and isolated land that the

Chapter has deemed “incapable of sustaining a community.” HRI II, 562 F.3d at

1269 (Frizzell, J., concurring in part and dissenting in part). Judge Frizzell also

questioned the community of reference test, noting that “[a]s long as a Chapter as

a whole satisfies whatever percentage of federal set-aside and supervision a

federal court deems necessary, tribal law may itself define the boundaries of

Indian country outside” reservations. Id. at 1270-71. Through this application

“of our community of reference test,” Judge Frizzell emphasized, “we take an

unprecedented step. Never before has non-Indian fee land outside the exterior

boundaries of a reservation or Pueblo been held to be a dependent Indian

community.” Id. at 1270.

After the panel issued its decision, HRI petitioned for rehearing en banc,

asking us to tackle the one issue the panel thought it could not — whether

-25- Watchman’s community of reference test remains an appropriate part of § 1151(b)

analysis after Venetie. In support of its petition, the company suggested HRI I

had opened a split of authority within this circuit: while HRI I suggested that the

community of reference survived Venetie, in United States v. Roberts, 185 F.3d

1125 (10th Cir. 1999), a previous panel of this court had analyzed a § 1151(b)

claim without reference to Watchman’s community of reference analysis, asking

only Venetie’s two questions. See also Frank, 52 P.3d at 408 (noting the same

tension in this circuit’s post-Venetie case law). Though reluctant to protract even

further this already aged dispute, in light of the arguably inconsistent guidance

offered by different panels of this court we granted HRI’s petition for en banc

review. 7

II

7 Pending before the court are several motions seeking leave to file amicus briefs. Because the movants possess an adequate interest and present arguments that are useful to this court, we grant the motions of the Pueblos of Santa Clara, Sandia, Isleta, and Zia and the United Nuclear Corporation. W e deny the motion of the American Indian Law Professors for leave to file an amicus brief only because granting the motion would cause one or more members of this court to recuse themselves from the matter. See 16AA Charles Alan W right et al., Federal Practice and Procedure § 3975, at 318-19 (4th ed. 2008) (“Some circuits will restrict amicus filings in order to avoid disqualifying a member . . . of the en banc court . . . .”). The states of Colorado, Kansas, New M exico, Utah, and W yoming also filed an amicus brief, which Federal Rule of Appellate Procedure 29(a) allows them to do without requesting the leave of this court.

-26- Before we can address the merits of this dispute, we must first attend to

antecedent questions about our subject matter jurisdiction (Section II.A) and

standard of review (Section II.B).

Federal courts do not wield plenary jurisdiction over every slight or suit.

Instead, our authority is restricted in ways small and large by constitutional and

statutory design. Because of this, the task of ensuring ourselves of our own

subject matter jurisdiction “is not a mere nicety of legal metaphysics,” but

essential to the rule of law in “a free society . . . . The courts, no less than the

political branches of government, must respect the limits of their authority.” U.S.

Catholic Conference v. Abortion Rights M obilization, Inc., 487 U.S. 72, 77

(1988); see also In re C & M Properties, L.L.C., 563 F.3d 1156, 1161 (10th Cir.

2009).

Before the panel, EPA challenged HRI’s standing under Article III of the

Constitution, arguing that its final land status determination imposed no

constitutionally cognizable injury on HRI. After all, EPA said, that determination

“merely implicates which regulator (NM ED or EPA) will enforce UIC

regulations,” and does nothing to alter the substantive SDW A threshold HRI or

anyone else must clear in order to obtain a UIC permit. HRI II, 562 F.3d at 1258

(emphasis in original). In support of its argument, EPA emphasized New

-27- M exico’s representation that its state UIC permitting process “is more stringent in

some respects than the Federal program,” and the absence of any evidence that

EPA’s process or permit would involve “more onerous terms than NM ED[’s].”

EPA’s M erits Brief at 19-20, HRI II, 562 F.3d 1249 (10th Cir. 2009) (No. 07-

9506).

Under Article III, federal courts have jurisdiction only to decide “Cases”

and “Controversies.” U.S. Const. art. III, § 2. One “essential and unchanging

part of the case-or-controversy requirement” is the concept that the plaintiff must

have “standing,” which in turn requires the presence of “three elements.” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A party has standing to

pursue a claim in federal court only if: (1) it “suffered an ‘injury in fact’ — an

invasion of a legally protected interest which is (a) concrete and particularized,

and (b) actual or imminent, not conjectural or hypothetical”; (2) that injury is

“fairly traceable to the challenged action of the defendant” rather than some third

party not before the court; and (3) that injury is likely to be “redressed by a

favorable decision.” Id. at 560-61 (internal quotation marks, alterations, and

citations omitted).

-28- Before us, EPA has disputed only the first element — injury in fact. 8 The

Agency’s challenge, however, cannot succeed. Even if, as EPA would apparently

have us assume, its UIC permitting process is no stricter than New M exico’s, the

panel opinion in this case correctly explained that “the outlay of funds necessary

to secure” a second UIC permit from EPA, on top of the one HRI has already

secured from NM ED, amply qualifies as a concrete and particularized, actual and

imminent injury. HRI II, 562 F.3d at 1259. As we have previously explained,

“the out-of-pocket cost to a business of obeying a new rule of government[,] . . .

whether or not [there may be] pecuniary loss” associated with the new rule,

suffices to establish an “injury in fact.” Nat’l Collegiate Athletic Ass’n v.

Califano, 622 F.2d 1382, 1386 (10th Cir. 1980). EPA’s final land status

determination requires HRI to undergo the UIC permit process for a second time

— this time with the federal authorities — before it can mine its property. There

is nothing hypothetical or conjectural about that, or about the fact that such a “re-

do” would impose on HRI some additional administrative costs. M aybe those

costs wouldn’t break HRI’s bank, but that’s hardly required to constitute a

8 EPA hasn’t challenged the remaining elements of constitutional standing for good reason. HRI’s claimed injury — having to incur the expenses associated with a second UIC application — is directly traceable to EPA’s final land status determination. And that injury is fully redressable by a favorable decision of this court vacating EPA’s decision as incompatible with the law.

-29- constitutionally cognizable injury. See id. at 1389 (“Certainly the cost of obeying

the regulations constitutes injury.”). 9

Assured of HRI’s constitutional standing to bring this appeal, before

reaching the merits it remains to ask whether and to what degree we are

statutorily empowered to review EPA’s decision.

The SDW A authorizes us to review “final actions” taken by EPA in its

administration of the statute. 42 U.S.C. § 300j-7(a)(2). The parties before us

agree that EPA’s final land status determination qualifies as such a final action,

and we can see no basis on which we might disagree. But though the SDW A

grants us the power to review EPA’s action in this case, it does not tell us what

standard of review we should use in doing so. W hen the legislation at hand

doesn’t supply a standard of review for us to apply, the Administrative Procedure

Act (“APA”) provides the default, filling the gap and telling us, among other

things, that we “shall . . . hold unlawful and set aside agency action, findings, and

9 HRI notes this court’s previous suggestion that “[c]ompulsion by unwanted and unlawful government edict is injury per se.” Califano, 622 F.2d 1389; see also 13A Charles Alan W right et al., Federal Practice and Procedure § 3531.4, at 249 (3d ed. 2008) (“[I]njury sufficient to support standing may be found in subjection to unwanted procedures.”). The panel did not reach or rest its standing holding on this ground, however, and neither must we, given that EPA’s rulings will indisputably impose some out-of-pocket costs on HRI.

-30- conclusions, found to be arbitrary and capricious, an abuse of direction, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

It is this last phrase — “otherwise not in accordance with law” — most

directly at issue here. See FCC v. NextWave Pers. Commc’ns Inc., 537 U.S. 293,

300 (2003) (“The Administrative Procedure Act requires federal courts to set

aside agency action that is ‘not in accordance with law’ — which means, of

course, any law, and not merely those laws that the agency itself is charged with

administering.” (citation omitted)). EPA’s final land status determination

represents the Agency’s interpretation of its earlier regulations affording NM ED

primary authority to regulate UIC wells in New M exico “except on Indian lands,”

40 C.F.R. §§ 147.1600-147.1601, and then defining “Indian lands” to mean

“Indian country” as that term is used in 18 U.S.C. § 1151, id. § 144.3. It is by

dint of these regulatory choices that, in the end, EPA faced the purely legal task

of interpreting § 1151 in its final land status determination. And it is by dint of

this that we must ask whether EPA’s interpretation of § 1151 is or is not in

accordance with the statute.

Of course, courts afford considerable deference to agencies interpreting

ambiguities in statutes that Congress has delegated to their care, see Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), including

statutory ambiguities affecting the agency’s jurisdiction, see Commodity Futures

-31- Trading Comm’n v. Schor, 478 U.S. 833, 844 (1986); see also M iss. Power &

Light Co. v. M ississippi ex rel. M oore, 487 U.S. 354, 381 (1988) (Scalia, J.,

concurring in the judgment); Teamsters Local Union No. 523 v. NLRB, 590 F.3d

849, 850-51 (10th Cir. 2009). Courts do not, however, afford the same deference

to an agency’s interpretation of a statute lying outside the compass of its

particular expertise and special charge to administer. See M etro. Stevedore Co. v.

Rambo, 521 U.S. 121, 137 n.9 (1997) (no deference given to agency interpretation

of statute, in part, because the agency was not “charged with administering” it);

Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (“A precondition to

deference under Chevron is a congressional delegation of administrative

authority.”); see also Crandon v. United States, 494 U.S. 152, 174 (1990) (Scalia,

J., concurring in the judgment) (“The law in question, a criminal statute, is not

administered by any agency but by the courts.”).

Section 1151 quite clearly does not fall within EPA’s particular expertise or

charge to administer. It is not a statute specially involving environmental

regulation, but one all and only about the geographic parameters of federal and

tribal criminal prosecutorial authority. Even so, we need not decide whether

EPA’s interpretation of the statute is entitled to deference because, throughout the

proceedings before the panel and now the en banc court, EPA itself hasn’t

claimed any entitlement to deference. In these circumstances, when the agency

-32- doesn’t ask for deference to its statutory interpretation, “we need not resolve the

. . . issues regarding deference which would be lurking in other circumstances,”

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477 (1992), and so may

proceed to review EPA’s interpretation of § 1151(b), as the Agency would have

us and the panel did, de novo. 1 0

10 Though claiming no entitlement to deference for its legal interpretation of § 1151(b), EPA does seek deference for its factual findings in applying its interpretation of the statute to this case. See 5 U.S.C. § 706(2)(E) (establishing “substantial evidence” review); Allentown M ack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366 (1998). As will be apparent in the analysis that follows, however, only purely legal questions, not factual ones, are in dispute before us.

The principal dissent agrees that EPA is not entitled to Chevron deference, but argues that the Agency deserves Skidmore deference. Principal Dissent at 5 n.2. Of course, an agency’s interpretation of a statute merits deference under Skidmore only in “proportion[] to its ‘power to persuade.’” United States v. M ead Corp., 533 U.S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); see also id. at 250 (Scalia, J., dissenting) (Skidmore deference is a “statement of the obvious: A judge should take into account the well-considered views of expert observers.”). W hether or not Skidmore compels us to do so, we certainly seek in this opinion to take into account EPA’s considered views. But we decline to decide the question whether we are obliged by Skidmore to afford even this modicum of deference, for a few reasons. First, EPA has not sought Skidmore deference, and when a party chooses not to pursue a legal theory potentially available to it, we generally take the view that it is “inappropriate” to pursue that theory in our opinions. United States v. Int’l Bus. M ach. Corp., 517 U.S. 843, 855 (1996); see also Estate of Cowart, 505 U.S. at 476-77 (declining to pass on deference question because the agency requested no deference); cf. Spector M otor Serv., Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (L. Hand, J., dissenting) (“[It is not] desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant . . . .”), vacated sub nom. Spector M otor Serv., Inc. v. M cLaughlin, 323 U.S. 101 (1944). Our caution in this respect flows from a (continued...)

-33- III

W ith this much resolved, we finally reach the merits. The dispute here is a

purely legal one: Does the Watchman community of reference test remain viable

following the Supreme Court’s decision in Venetie? EPA argues it does; HRI

says it does not.

EPA reads § 1151(b)’s three operative words, “dependent Indian

communities,” to require a two-step, multi-factor balancing test. First, and

following Watchman, EPA says we must identify an appropriate “community of

reference” by weighing three factors in balance: (1) the geographic definition of

the proposed community; (2) the status of the area in question as a community;

and (3) the community in the context of the surrounding area. W ithin the second

of those factors, and again following Watchman, EPA says we must inquire

10 (...continued) recognition of our dependence on the adversarial process to test the issues for our decision and from concern for the affected parties to whom we traditionally extend notice and an opportunity to be heard on issues that affect them. Second, Skidmore deference traditionally has been justified, at least in part, on an assumption that the agency in question has “specialized experience and broader investigations and information available to” it than do judges. M ead, 533 U.S. at 234 (internal quotation marks omitted). EPA has claimed, however, no comparative experience or expertise over us in rendering a legal interpretation of a criminal statute that Congress has never charged the Agency to administer and which we have long experience applying. Third, the principal dissent offers no indication what impact Skidmore deference makes to its analysis. If it makes no difference, then deciding the question is just an exercise in dicta. But if it does make a difference, then presumably the dissent would agree with us that, at least if viewed de novo, EPA’s final land status determination is contrary to law.

-34- whether there is “cohesiveness that can be manifested either by economic pursuits

in the area, common interests, or needs of the inhabitants as supplied by that

locality,” and consider “whether the community is more than an economic pursuit,

and whether it qualifies as a mini-society consisting of personal residences and an

infrastructure potentially including religious and cultural institutions, schools,

emergency services, public utilities, groceries, shops, restaurants, and the other

needs, necessities, and wants of modern life.” Land Status Determination at 5

(internal alterations and quotation marks omitted). And within the third factor,

EPA says, we must also ask “which government or governments provide the

infrastructure and essential services for the community.” Id. at 6. In EPA’s view,

none of the analysis to this point is affected by Venetie.

Having balanced all these competing considerations to identify some

“community of reference,” EPA moves to the second Watchman step, which it

does view as modified by Venetie. Before Venetie, the Watchman test sought to

determine whether a community of reference qualified as a dependent Indian

community by considering four factors: (1) whether and to what degree the

United States has retained title to the lands in the community, (2) the nature of the

area and the relationship of the inhabitants in the area to Indian tribes and to the

federal government, (3) whether there is “an element of cohesiveness . . .

manifested either by economic pursuits in the area, common interests, or needs of

-35- the inhabitants as supplied by that locality”; and (4) “whether such lands have

been set apart for the use, occupancy and protection of dependent Indian

peoples.” Watchman, 52 F.3d at 1545. EPA suggests that, after Venetie, the

second and third of these factors are no longer operative, and that the first and

fourth essentially track Venetie’s set-aside and federal superintendence

requirements. Accordingly, EPA submits, if some sufficiently high (though

unspecified) percentage of the community of reference is set aside for Indians and

federally superintended, then all the land inside that community should be treated

as Indian country regardless whether any particular tract is set aside and

superintended. W eighing all the foregoing considerations, EPA argues that HRI’s

Section 8 land, though itself neither set aside nor superintended for Indians, is

Indian country nonetheless because it lies within the Church Rock Chapter

community of reference and, by the Agency’s calculation, enough of that land is

set aside and superintended for Indians.

For its part, HRI submits that Venetie leaves no room for EPA’s reading of

§ 1151(b). After Venetie, HRI urges, the appropriate § 1151(b) test asks only two

straightforward questions: (1) Has Congress explicitly set aside the land in

question for Indian use? (2) Does the federal government superintend the land in

question? Unless the answer to both questions is “yes,” the land in question is

not within a dependent Indian community. HRI stresses that Venetie expressly

-36- rejected the Ninth Circuit’s § 1151(b) test, a test that was consciously patterned

on this court’s pre-Venetie jurisprudence and employed the same factors found in

the Watchman community of reference test. In addition, HRI submits that the

fact-intensive and multi-factored community of reference balancing test leaves the

scope of federal criminal jurisdiction impermissibly uncertain and unpredictable,

contravening the Supreme Court’s direction in Venetie and its repeated

admonitions elsewhere that criminal statutes merit more concrete and precise

constructions.

W e are constrained to agree with HRI. W e hold that Watchman’s

community of reference test did not survive Venetie and that dependent Indian

communities under § 1151(b) consist only of lands explicitly set aside for Indian

use by Congress (or its designee) and federally superintended. W e reach this

result in light of Venetie’s exposition of the statute’s plain meaning (Section

III.A), the statute’s history (Section III.B), and the statute’s structure (Section

III.C), and in doing so we bring the law of this circuit in line with the recent

decisions of our sister circuits (Section III.D).

In Venetie, the Supreme Court explained that “dependent Indian

communities” under § 1151(b) embrace “a limited category of Indian lands that

are neither reservations nor allotments” encompassed by § 1151(a) and (c),

-37- respectively. 522 U.S. at 527. The Court then identified two necessary

“requirements” for lands falling into § 1151(b)’s “dependent Indian communities”

category, explaining that, much like reservations or allotments, “first, they must

have been set aside by the Federal Government for the use of the Indians as

Indian land; second, they must be under federal superintendence.” Id.

W hat does it mean for the federal government to set aside land for Indian

use and to superintend it? The Court noted that the set-aside requirement means

that there must be “some explicit action by Congress (or the Executive, acting

under delegated authority) . . . to create or to recognize” the “land in question” as

part of a federally recognized and dependent Indian community. 522 U.S. at 531

n.6. Through an Act of Congress or some equally explicit executive action, then,

the federal government must identify the land as “set apart for the use of the

Indians as such.” Id. at 529 (internal quotation marks omitted) (emphasis in

original). So, for example, land simply conveyed by Congress to individual

Indians or tribes that they are then “free to use . . . for non-Indian purposes” or

sell as they wish does not qualify. Id. at 533. W hile groups of Indians may very

well live on such lands in socially and politically discrete communities, they do

not live in “Indian country” because the land in question has not been explicitly

set aside by Congress for use as a “dependent Indian community.” The

superintendence requirement means that the federal government currently must be

-38- “actively controll[ing] the lands in question, effectively acting as a guardian for

the Indians.” Id. This requirement, too, necessarily excludes lands that the

government has conveyed without restriction to Indians or others because such

lands do not implicate any sense of “guardian[ship],” “wardship[,] or trusteeship.”

Id. (internal quotation marks omitted).

The set-aside and superintendence requirements, the Court explained,

derive from the statute’s plain language — “dependent Indian communities.” The

set-aside requirement “ensures that the land in question is occupied by an ‘Indian

community.’” Id. at 531. That is, the boundaries of the Indian community are

demarcated by and delimited to those lands that are explicitly set aside by

legislation or executive action for Indian use. The federal superintendence

requirement “guarantees that the Indian community is sufficiently ‘dependent’ on

the Federal Government that the Federal Government and the Indians involved,

rather than the States, are to exercise primary jurisdiction over the land in

question.” Id.

In our case, it is undisputed that HRI’s Section 8 land hasn’t been explicitly

set aside by Congress (or the Executive) for Indian use since the brief period

when it was appended to the Navajo Reservation nearly a century ago. See supra

Section I.A. It is likewise undisputed that the land isn’t under federal

superintendence, and hasn’t been since the government sold it in 1970. See id.

-39- M cKinley County and the State of New M exico provide all essential public

services to HRI’s Section 8 land, including roads, law enforcement, and

emergency and school services. The Navajo Church Rock Chapter recognizes that

private lands within its boundaries, like HRI’s, are subject to state jurisdiction

and control. And state authorities have long assessed tax on HRI’s property.

Under Venetie’s interpretation of § 1151(b), it would seem unavoidable that the

land in question is not Indian country.

Of course, EPA seeks to avoid just this conclusion by expanding the focus

from HRI’s particular tract to a wider “community of reference.” According to

the Agency, only after ascertaining some appropriate community of reference, by

balancing various social, political, and geographic factors, should one then turn to

the questions prescribed by the Supreme Court in Venetie, asking whether some

significant percentage of the community of reference is set aside for Indian use

and federally superintended.

This misreads Venetie. The Supreme Court did not direct its set-aside and

superintendence inquiries toward some abstract “community of reference.”

Instead, the Court told us (repeatedly) to ask whether the “land in question” is

explicitly set aside for Indian use and federally superintended. See, e.g., Venetie,

522 U.S. at 530, 531, 533. Before us, the only land in question in EPA’s

challenged final land status determination is HRI’s segment of Section 8. And so

-40- it is only that land that is subject to, and the focus of, Venetie’s set-aside and

superintendence requirements.

Tellingly, EPA adopted just this approach to § 1151(b) before HRI I, when

it considered the Navajo Nation’s request for SDW A authority over private lands

in the checkerboard area. See supra Section I.B. EPA rejected the Navajo

Nation’s request, explaining that “[b]efore it could determine if a parcel of land is

part of a dependent Indian community (and therefore is Indian country), the

Agency would need more information about that particular parcel of land.” R.

13b at 238. EPA itself, then, once focused its § 1151(b) analysis on the

“particular parcel of land” in question. And it seemingly came to eschew this

approach in favor of the community of reference test only after the panel in HRI I

suggested in dicta that it should. 1 1

Of course, EPA now tells us that focusing narrowly on the status of the

“land in question” fails to give full vent to the statutory term “communities.” The

Agency stresses that § 1151(b) speaks of “dependent Indian communities,” not

parcels of land. And the Agency submits that, while Venetie defined the statutory

11 It is notable, too, that post-Venetie another arm of the government has taken the position, in a criminal matter before this court, that the proper focus is on the particular piece of land in question, explaining that “[f]ederal jurisdiction is absent over crimes which occur on land which has transferred from Indian ownership to non-Indian ownership.” Brief of the United States at 7, United States v. Arrieta, 436 F.3d 1246 (10th Cir. 2006) (Nos. 04-2350, 05-2010).

-41- terms “dependent” and “Indian,” it did not consider “community,” the final

statutory term. The dissents offer this same critique. See, e.g., Principal Dissent

at 18; Separate Dissent at 2.

This, too, is in error. The Venetie Court did address the term “community,”

and did so in light of the statutory terms modifying it. The Court expressly held

that “dependent Indian communities” are composed of those lands Congress (or

the Executive, by delegation) has explicitly set aside and superintended for Indian

use. As the Court clearly explained, “[t]he federal set-aside requirement ensures

that the land in question is occupied by an ‘Indian community.’” Venetie, 522

U.S. at 531 (emphasis added). And the federal superintendence requirement, the

Court emphasized, “guarantees that the Indian community is,” in turn,

“sufficiently ‘dependent’ on the Federal Government that” it should be subject

primarily to federal, not state, jurisdiction. Id. (emphasis added).

In adopting the approach it did, moreover, the Court rejected the idea that

the boundaries of a federally dependent Indian community should be determined

by a sort of judicially administered census study of the nature of “the Indian tribe

inhabiting” the area. Id. at 530 n.5. The right question, the Court held, is instead

whether Congress has taken some action to designate and maintain the land in

question for Indian use. It is Congress’s action alone that demarcates the

boundaries of a dependent Indian community. Id.; see also United States v.

-42- M cGowan, 302 U.S. 535, 538 (1938) (“Congress alone has the right to determine

the manner in which this country’s guardianship over the Indians shall be carried

out.”); cf. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586 (1977) (“In

determining whether . . . Reservation boundaries were subsequently diminished[,]

. . . [t]he underlying premise is that congressional intent will control.”).

In this way, the Court explained, the federal set-aside and superintendence

requirements respect and give meaning to an important feature of our

constitutional order — namely, “the fact that because Congress has plenary power

over Indian affairs, see U.S. Const. art. I, § 8, cl. 3, some explicit action by

Congress (or the Executive, acting under delegated authority) must be taken to

create or to recognize Indian country.” Venetie, 522 U.S. at 531 n.6. W hile

social or political communities of Indians can exist anywhere in our country, and

surely do in a great many places outside Indian country, federally “dependent

Indian communities” exist only where and when Congress has said so.

Simply put, Venetie held that Congress — not the courts, not the states, not

the Indian tribes — gets to say what land is Indian country subject to federal

jurisdiction. It is long settled that Congress does so by declaring land to be part

of a reservation, or by authorizing its distribution as Indian allotments. And so it

is the case that Congress must take some equally “explicit action . . . to create or

to recognize” dependent Indian communities. Id. W hen seeking to identify a

-43- § 1151(b) “dependent Indian community,” we must ask whether Congress has

explicitly set aside the “land in question” for Indian use and put it under federal

superintendence. If Congress hasn’t declared the land set aside for the

establishment of a federally dependent Indian community, we are powerless to do

so ourselves. 1 2

Applying these principles in Venetie, the Supreme Court held that none of

the 1.8 million acres of land granted by Congress in fee to the Neets’aii Gwich’in

Indians in Alaska constituted a § 1151(b) “dependent Indian community.” Id. at

523-24. It was undisputed that these lands were home to what EPA (and the

dissents) would consider to be distinct Indian “communities of reference.” After

all, robust and well-defined Indian villages occupied the land. See Venetie, 101

F.3d at 1300. Despite such social, political, and geographic affinities, the

Supreme Court held that a § 1151(b) “dependent Indian community” didn’t exist

12 The principal dissent errs when it suggests that under our reading of Venetie “title alone is determinative of whether a parcel of land is ‘Indian country’ under § 1151(b).” Principal Dissent at 11. The test we adopt at Venetie’s direction focuses on set-aside and superintendence, not title. W hile the results of the principal dissent’s imagined title test would surely sometimes coincide with Venetie’s set-aside and superintendence test, the two are distinct. It is, after all, possible that Congress might set aside and guarantee federal superintendence for privately titled land, much as it holds certain privately titled lands within reservations to be Indian country. See infra Section III.B (discussing a 2005 law treating privately titled land within pueblos as Indian country). W hat the constitutional limits may be to Congress’s authority to declare land titled to non-Indians to be part of Indian country is not before us. See supra note 5.

-44- on any portion whatsoever of the 1.8 million acres of tribal lands because none of

that land was congressionally set aside or superintended for Indian use. And that

was because, when it passed the Alaska Native Claims Settlement Act

(“ANCSA”), Congress deliberately revoked all existing Indian reservations in

Alaska “set aside by legislation or by Executive or Secretarial Order for Native

use” and granted tribal corporations fee title to those lands. Venetie, 522 U.S. at

532 (quoting 43 U.S.C. § 1618(a)). In taking this step, Congress contemplated

that the tribes could sell any or all of the lands to non-Indians, and could make

use of them as they wished for any purpose, Indian or non-Indian, without federal

approval. “In no clearer fashion,” the Supreme Court explained, “could Congress

have departed from its traditional practice of setting aside Indian lands.” Id.

W here there is no congressionally approved set-aside for Indian use, and no

federal superintendence, the Court underscored, there can be no dependent Indian

community for purposes of § 1151(b). 1 3

13 The principal dissent emphasizes that Venetie considered the status of the Tribe’s 1.8 million acres of ANCSA land, though the dispute originally arose when the Tribe claimed taxing authority over a small strip of land on which the State of Alaska planned to build a school. Apparently the principal dissent believes this suggests that the Court implicitly thought of all 1.8 million acres of ANCSA land as the appropriate “community of reference”; that is, the Court really used a community of reference analysis, it just forgot or failed to say so. See Principal Dissent at 18-19. Nothing of the kind took place. Before the Ninth Circuit, the Tribe categorically claimed “inherent authority to tax activities occurring” anywhere “within its [ANCSA] territory.” Venetie, 101 F.3d at 1290. (continued...)

-45- The Watchman community of reference test is inconsistent with this

direction. Instead of asking whether Congress (or the Executive, through

delegated authority) has taken some explicit action to set aside the land in

question and whether the federal government superintends that land, it first

conducts a threshold inquiry involving multiple competing factors that have no

basis in Venetie or the text or history of § 1151(b). 1 4 Only after conducting this

inquiry does the community of reference test turn to Venetie’s prescribed set-aside

and superintendence questions. And even then the community of reference test

asks only about the degree and extent to which some other, larger area is set aside

13 (...continued) The Ninth Circuit agreed, holding that the Tribe enjoyed such taxing authority throughout the ANCSA territory. By dint of that holding, all 1.8 million acres were in dispute when the case came before the Supreme Court. The Court did not explicitly, implicitly, or otherwise hold that the whole 1.8 million acres, or any portion of it, qualified as an appropriate community of reference. Instead, the Court did what it instructed other courts facing § 1151(b) cases to do: it simply and straightforwardly analyzed whether the land in question in the litigation at hand — all 1.8 million acres of the Tribe’s ANCSA land — was set aside or superintended. And it held that none of that land met those requirements. 14 Indeed, for EPA’s understanding of § 1151(b) to be correct, the statute would have to read very differently than it does, perhaps something like this: “All land must be part of some community of reference that is sufficiently cohesive economically and socially to be a mini-society. If the land in question is part of a community of reference that contains a sufficiently high percentage of Indian people and lands set aside for Indians and federally superintended, it is Indian country.” W hat the statute actually says, of course, is that Indian country includes dependent Indian communities — that is, land that has been federally set aside for use by an “Indian community” that remains “dependent” on the federal government through its superintendence. See Venetie, 522 U.S. at 530-31.

-46- and superintended. In this way, EPA’s test effectively “reduc[es] the federal set-

aside and superintendence requirements to mere considerations” — something

Venetie expressly warned us against. 522 U.S. at 531 n.7.

In this same way, the community of reference test also disregards and

regularly overrides Congress’s plenary authority in charting the extent of Indian

country. Applying the test here, EPA held HRI’s land to be Indian country even

though Congress has not explicitly set aside the land for Indian use and the most

recent federal action with respect to this land was an executive order in 1911

removing it from Indian country. See supra Section I.A. It seems to us that, just

as in Venetie, there could be “no clearer fashion” in which the federal government

could have extinguished the Indian country status of HRI’s land. Venetie, 522

U.S. at 532.

By disregarding Congress’s authority, the community of reference test

contemplates the possibility that even land never set aside by Congress for

Indians can become Indian country simply because of its proximity to other lands

that are federally set aside and superintended. This is so despite the fact that

neither EPA nor the principal dissent has pointed us to a single case in the history

of the Supreme Court or this court reaching such a result. Consider what happens

when a tribe unilaterally redefines its borders to take in just a bit more land (like,

say, the state park at the center of the Church Rock Chapter, or strips of private

-47- land currently outside but along the edges of the Chapter). See Appendix.

Assuming the social and political characteristics of this expanded community of

reference remain more or less constant, land that once wasn’t Indian country

becomes Indian country by tribal preference or judicial decree rather than

congressional action.

Neither does the community of reference test’s disregard for Congress’s

authority work only to expand Indian communities. It can operate just as well the

other way around — and would surely do so increasingly as time wears on and

non-Indian communities encroach on Indian lands. W hat would happen, for

example, if Gallup grows and dilutes adjacent Indian populations, so that the

Chapter might no longer be said to constitute its own independent “mini-society,”

but only part of a greater Gallup “community of reference”? Presuming that this

new greater Gallup community of reference wouldn’t include a sufficient

percentage of set-aside and superintended land, no land within its limits would

constitute “Indian country” under § 1151(b). Under EPA’s approach, land

expressly set aside for Indian use and superintended by the federal government

could and would lose its status as Indian country whenever social and political

boundaries shift — and all this would happen even in the face of express and

-48- contrary congressional direction.1 5 Venetie ties the jurisdictional determination to

the proper hitch: the will of Congress. The same cannot be said of the

community of reference test. 1 6

Any remaining question about the vitality of Watchman’s community of

reference test is answered by the fact that it would require us to revive the same

15 This result, virtually inevitable under the community of reference test, sits uneasily with the Supreme Court’s direction that the diminishment of reservations under § 1151(a), like additions to them, is Congress’s prerogative alone. See, e.g., Solem v. Bartlett, 465 U.S. 463, 470 (1984) (“The first and governing principle is that only Congress can divest a reservation of its land and diminish its boundaries.”); id. at 471-72 (treating history of land after enactment of a statute allegedly effecting reservation diminishment as “relevant” only to “decipher Congress’ intention,” as an “additional clue as to what Congress expected would happen”); Rosebud Sioux Tribe, 430 U.S. at 588 n.4 (“The focus of our inquiry [in reservation diminishment cases] is congressional intent.”); Yazzie, 909 F.2d at 1393 (“Congress must clearly evince the intent to reduce [reservation] boundaries.”). 16 The dissents offer no response to this except to suggest that Venetie permits us to ask about the “degree” or “extent” of federally set aside and superintended land in the proximate area, relying on footnote 7 of the Court’s opinion. Principal Dissent at 20 (quoting Cohen (2005) § 3.04[2][c][iii], at 194). But rather than support the dissent’s view, the cited footnote does just the opposite. The footnote was expressly aimed at rejecting the Ninth Circuit’s use of the factors that form the basis of the community of reference test, calling them “extremely far removed” from the statute’s language, history, and mandate. Venetie, 522 U.S. at 531 n.7. The Court indicated that the Ninth Circuit’s examination of the “degree” or “extent” of set-aside and superintended land in the general area were “more relevant” inquiries, but the Court did not endorse this aspect of the Ninth Circuit’s approach either. Id. Instead, in formulating its own test the Court repeatedly held that dependent Indian communities constitute only those lands explicitly set aside by Congress for Indians and superintended by the government for their benefit. See, e.g., id. at 527 (stating that the land “must have been set aside” and “must be under federal superintendence” (emphasis added)).

-49- factors the Supreme Court rejected in Venetie. Before the case reached the

Supreme Court, the Ninth Circuit looked to this circuit’s then-governing

precedent for guidance in determining whether the land in question before it

constituted Indian country under § 1151(b). In fact, the Ninth Circuit applied a

six-factor test that it called “virtually identical” to the second step of our

Watchman analysis. Venetie, 101 F.3d at 1294; see id. at 1291-92. The Supreme

Court, of course, proceeded to reject this “textured” balancing test. Venetie, 522

U.S. at 531 n.7. In particular, the Court criticized reliance on three factors —

“the nature of the area,” “the relationship of the area inhabitants to Indian tribes

and the federal government,” and “the degree of cohesiveness of the area

inhabitants” — as “extremely far removed from” the more concrete set-aside and

superintendence requirements. Id.

As we have noted previously, many of the same factors appear in both steps

of the Watchman analysis. See supra Section I.C. And the three specific factors

the Supreme Court held impermissible in Venetie are among these reappearing

factors. Put more pointedly, the factors Venetie expressly rejected are found not

just in Watchman’s second step; they also form the backbone of Watchman’s first

step: defining the community of reference. For example, considering the “status

of the area in question,” as EPA did in its community of reference analysis, Land

Status Determination at 5, is no different from looking at the “nature of the area,”

-50- a consideration the Supreme Court rejected in Venetie. 522 U.S. at 531 n.7.

Searching for “the existence of an element of cohesiveness,” as EPA did, Land

Status Determination at 5, is indistinguishable from seeking to discern “the

degree of cohesiveness of the area inhabitants,” which the Supreme Court held

impermissible. Venetie, 522 U.S. at 531 n.7. And focusing “on which

government or governments provide the infrastructure and essential services for

the community,” as EPA would have us do, Land Status Determination at 6,

necessarily requires consideration of “the relationship of the area inhabitants to

Indian tribes and the federal government,” again something Venetie ruled out-of-

bounds. 522 U.S. at 531 n.7. In EPA’s application of Watchman’s community of

reference test, then, the three factors Venetie discredited reemerge, like a phoenix,

from their own demise. And in some ways, the community of reference test

favored by EPA is even more problematic than the Ninth Circuit’s approach. At

least in the Ninth Circuit’s test the three factors rejected by the Supreme Court

were balanced in fair competition against the set-aside and superintendence

requirements. In EPA’s application of Watchman’s community of reference test,

the rejected factors actually receive a promotion to an outcome-determinative

threshold inquiry. The Agency offers us no credible explanation how we might

-51- lawfully revive, and then elevate, the very same factors the Supreme Court has

expressly rejected. 1 7

The Venetie Court didn’t create its § 1151(b) test out of whole cloth, but

consciously grounded its test in the language and history of the statute. On the

latter score, the Court noted that subsection (b)’s use of the phrase “dependent

Indian communities” was designed to codify language from the Supreme Court’s

decisions in United States v. Sandoval, 231 U.S. 28 (1913), and United States v.

M cGowan, 302 U.S. 535 (1938). See Venetie, 522 U.S. at 528-31; see also

18 U.S.C. § 1151 History; Ancillary Laws and Directive Notes (“Definition is

based on latest construction of the term by the United States Supreme Court in

U.S. v. M cGowan following U.S. v. Sandoval.” (citations omitted)). For that

reason, Venetie examined and relied on these earlier decisions to give content and

meaning to subsection (b), recognizing that when a legal concept like this “is

17 Neither do the dissents. Instead, the principal dissent proposes a new community of reference test different from the one this court used in Watchman or EPA used in its final land status determination. The principal dissent would still apparently uphold EPA’s determination, though, rather than remand the case for reconsideration under its newly formulated version of the community of reference test. And it would do so even though its proposed test arguably might require additional fact finding by the Agency. Perhaps this is because, while the details are slightly changed, the essence of the test is not. Like the Watchman test EPA employed, the principal dissent’s modified test would still have us look generally (and impermissibly) to the “coherence” of the area and its inhabitants and their social and political affinities. See Principal Dissent at 26-30.

-52- obviously transplanted from another legal source, whether the common law or

other legislation, it brings the old soil with it.” Felix Frankfurter, Some

Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947).

An examination of these precedents, the soil in which § 1151(b) was

germinated, confirms the implausibility of a community of reference test.

Sandoval dealt with Congress’s constitutional authority to include pueblos within

“Indian country.” The defendant in that case was prosecuted for bringing alcohol

into the Santa Clara Pueblo. He was charged under a federal statute that “ma[de]

it a punishable offense to introduce intoxicating liquor into the Indian country,”

and another statute specifically providing that all of the Santa Clara Pueblo

constituted “Indian country.” Sandoval, 231 U.S. at 36-37. Faced with these

statutes, the Supreme Court was asked to decide whether Congress had the power

to deem the pueblos part of Indian country. The Court answered in the

affirmative, reasoning that the Indian Commerce Clause of the Constitution and

“an unbroken current of judicial decisions have attributed to the United States . . .

the power and the duty of exercising a fostering care and protection over all

dependent Indian communities within its borders.” Id. at 46 (emphasis added).

W hile not a formal Indian reservation or allotment that might fall into today’s

§ 1151(a) and (c) categories, the Court noted that Congress had “recognized the

Pueblos’ titles to their ancestral lands by statute,” executive orders had “reserved

-53- additional lands ‘for the [Pueblos’] use and occupancy,’” and “Congress had

enacted legislation . . . ‘in the exercise of the Government’s guardianship over

th[e] [Indian] tribes and their affairs’ . . . including federal restrictions on the

land’s alienation.” Venetie, 522 U.S. at 528 (quoting Sandoval, 231 U.S. at 39,

48) (emphasis added). In this way, the Court held, Congress had taken deliberate

and independent actions to set aside the land in question and guarantee its federal

superintendence, thereby rendering it a federally dependent Indian community.

M cGowan is to the same effect. The case arose when the United States

sought the forfeiture of two automobiles used to introduce alcohol into the Reno

Indian Colony, which consisted of a single tract of land bought and owned by the

federal government as a “permanent settlement” for “needy Indians scattered over

the State of Nevada.” M cGowan, 302 U.S. at 537. The question presented to the

Court was whether the Colony constituted “Indian country” under the same

criminal statute at issue in Sandoval. The Court concluded that the Colony, while

neither a reservation nor an allotment, constituted a “dependent Indian

communit[y],” id. at 538, because all of its land had been “validly set apart for

the use of the Indians” and remained “under the superintendence of the

government,” id. at 539. As Venetie explained, the M cGowan Court stressed that

“like Indian reservations generally, the colony had been ‘validly set apart’”

because the “Federal Government had created the colony by purchasing the land

-54- with ‘funds appropriated by Congress,’” and it was federally superintended

because “the Federal Government held the colony’s land in trust for the benefit of

the Indians residing there.” Venetie, 522 U.S. at 529 (quoting M cGowan, 302

U.S. at 537, 539). 1 8

Nothing in Sandoval or M cGowan suggests that the metes and bounds of

“dependent Indian communities” should be determined by a court’s perceptions

about local social, political, or geographic affinities. Rather, in both cases, the

Supreme Court identified “dependent Indian communities” based on congressional

intent, as expressed in independent statutory declarations. Both decisions

emphasized that “the questions whether, to what extent, and for what time

[Indians] shall be recognized and dealt with as dependent tribes requiring the

guardianship and protection of the United States are to be determined by

Congress, and not by the courts.” Sandoval, 231 U.S. at 46 (emphasis added); see

also M cGowan, 302 U.S. at 538 & n.9 (citing Sandoval, 231 U.S. at 46). And

18 The fact that Sandoval and M cGowan rested on an outdated sense of cultural superiority, viewing the Indian communities at issue as dependent and in need of paternalistic guidance by the federal government, may be further reason to tread carefully before haphazardly expanding the subsection (b) class of “dependent Indian community” lands without express congressional direction. See, e.g., James E. Lobsenz, “Dependent Indian Communities”: A Search for a Twentieth Century Definition, 24 Ariz. L. Rev. 1, 2 (1982) (“The ‘quasi-sovereign’ or ‘dependent’ status of the Indian tribe is inextricably linked to past concepts of the Indian as an uncivilized savage who was to be gradually elevated to the level of a civilized human being.”).

-55- both explained Congress must express its intent to make land a “dependent Indian

community” by explicitly setting aside the land for Indian use and authorizing the

federal government to superintend the land for that purpose. Cf. Felix S. Cohen’s

Handbook of Federal Indian Law, Ch. 1, § 3 at 7 (Robert L. Bennett & Frederick

M . Hart eds., 1971) (reprinting original 1942 edition) (hereinafter “Cohen

(1942)”) (summarizing Sandoval as explaining “that the term Indian country as

applied to the Pueblos means any lands occupied by ‘distinctly Indian

communities’ recognized and treated by the Government as ‘dependent

communities’ entitled to its protection”).

Venetie, thus, is nothing new under the sun. It simply reaffirms what the

Supreme Court has always held to be the case: the dependent Indian community

inquiry centers on whether Congress (or the Executive, by delegation) has taken

some explicit action to set aside the land in question for Indian use and whether

the land remains federally superintended. As always, we do well to follow the

Supreme Court’s guidance — most especially when that guidance has received the

blessing of Congress through codification. Yet, EPA (like the dissents) makes no

attempt to grapple with any of § 1151(b)’s considerable history and would instead

have us view it in a vacuum, extirpated from the soil in which it grew.

Though not dispositive to our analysis, it also merits noting that the historic

meaning of the statute recently received further congressional confirmation.

-56- Seeking to salve a dispute over the status of privately held lands within New

M exico pueblos, Congress passed the Indian Pueblo Land Act Amendments of

2005, Pub. L. No. 109-133, 119 Stat. 2573, codified at 25 U.S.C. § 331 Note.

The law provides for federal and tribal criminal jurisdiction over offenses

committed involving Indians “anywhere within the exterior boundaries of any

grant from a prior sovereign, as confirmed by Congress or the Court of Private

Land Claims[, an Article I court established by Congress,] to a Pueblo Indian

tribe of New M exico.” Id. If the community of reference test is correct, this law

is surplusage, a waste of everyone’s time and effort in writing, passing, and

signing. Under the community of reference test, if and when a pueblo qualifies as

an “appropriate community” (and surely that would be most of the time),

everything in it, including privately held lands, is automatically subject to federal

or tribal jurisdiction under § 1151(b). No additional law was or is or will ever be

needed. The fact that Congress thought otherwise is one more (not

inconsiderable) piece of evidence against the community of reference test — as is

Congress’s continued focus on boundaries “confirmed by Congress” or its

designee, rather than on boundaries set by litigation over the latest social

statistics.

-57- The structure of § 1151 further confirms our understanding. The notion

that some explicit, congressionally approved action is required to create “Indian

country” is hardly foreign to the statute’s design. Subsection (a) classifies

reservations as Indian country, and reservations are traditionally created by and

delineated according to boundaries Congress has set or sanctioned.

Subsection (c) recognizes allotments as Indian country, and allotments, too, are a

product of congressional action, either directly or through delegation. Subsection

(b) serves as something of a catch-all provision, encompassing “a limited category

of Indian lands that are neither reservations nor allotments” but that are still

explicitly set aside for Indians by congressional mandate and superintended by the

federal government. Venetie, 522 U.S. at 527. In all three of § 1151’s

subsections, then, the creation of Indian country hinges on some explicit action by

Congress (or the Executive, acting under delegated authority). W ithout some

textual indication to think otherwise, it would be anomalous to think that

subsection (b) alone was designed to permit the judiciary to commission or

decommission Indian country by means of an atextual, multi-factor balancing test.

EPA attempts to overcome this by arguing that § 1151 as a whole is imbued

with an “anti-checkerboard” purpose. The Agency worries that looking to the

congressionally approved status of each parcel of land will result in a patchwork,

with some lands falling under federal jurisdiction while neighboring ones are

-58- subject to state jurisdiction. In support of this argument, EPA cites Seymour v.

Superintendent of Washington State Penitentiary, 368 U.S. 351, 358 (1962), and

the 2005 edition of Cohen’s Handbook of Federal Indian Law. See also Principal

Dissent at 10-11; Separate Dissent at 4. But this argument overstates the statutory

case against checkerboarding. In Seymour, the Court simply observed the

obvious: subsection (a), by its express terms, includes within the definition of

Indian country all lands within the congressionally prescribed boundaries of a

reservation, including private fee lands. The 2005 edition of Cohen’s Handbook

adds nothing new to the mix, citing only Seymour. M eanwhile, the 1982 edition

of the Handbook on which the principal dissent relies expressly acknowledges

that § 1151 “does not eliminate all forms of ‘checkerboarding.’” See Felix S.

Cohen’s Handbook of Federal Indian Law, Ch. 1, § D3c, at 39 & n.105 (Rennard

Strickland et al. eds. 1982) (hereinafter “Cohen (1982)”).

By indicating in subsection (a) that all lands within reservations are Indian

country, Congress undoubtedly did something to mitigate the potential for

checkerboard jurisdiction, as EPA observes. But Congress did not pursue this

goal single-mindedly throughout § 1151 at the expense of all other purposes.

Indeed, as this court has previously explained, “Congress has authorized

checkerboard jurisdiction under its definition of Indian country in 18 U.S.C.

§ 1151. Although subsection 1151(a) clarifies that checkerboard titles within an

-59- existing reservation do not affect the status of an Indian reservation as

reservation, subsections 1151(b) and (c) allow checkerboard jurisdiction outside

reservation boundaries.” Yazzie, 909 F.2d at 1421-22 (emphasis omitted). In this

respect, then, § 1151 is just one more example of the fact that “[n]o legislation

pursues its purposes at all costs” without consideration of competing goals and

concerns. Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646 (1990)

(quoting Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (per curiam));

see also John F. M anning, Textualism and the Equity of the Statute, 101 Colum.

L. Rev. 1, 18 (2001) (“Because statutory details may reflect only what competing

groups could agree upon, legislation cannot be expected to pursue its purposes to

their logical ends; accordingly, departing from a precise statutory text may do no

more than disturb a carefully wrought legislative compromise.”). 1 9

19 The dissents say we should “listen” to the Cohen Handbook’s purported condemnation of checkerboarding. Separate Dissent at 4; see also Principal Dissent at 9-10, 20-21. Of course, we have and do listen to anyone who offers some valuable insight. But the various versions of the Handbook have hardly been as clear on this point as the dissents suggest. The 1982 edition acknowledged, as we did in Yazzie, that § 1151 “does not eliminate all forms of ‘checkerboarding.’” Cohen (1982) Ch. 1, § D3c, at 39 n.105. The original edition of the Handbook — the only one authored by Professor Cohen’s hand — was precise in reading Sandoval and M cGowan, the progenitors of the term “dependent Indian communities,” as including within Indian country only lands “which have been validly set apart for the use and occupancy of Indians.” Cohen (1942) Ch. 1, § 3, at 8. And the language from the 2005 edition on which the dissents rely appears in a single sentence, citing and discussing only a § 1151(a) case. Surely, a stray sentence in one edition of a treatise — a sentence that cites (continued...)

-60- In truth, Congress has authorized some degree of checkerboard jurisdiction

in all three § 1151 categories of Indian country. As EPA stresses, subsection (a)

evinces the strongest effort to minimize checkerboarding by declaring all lands

within Indian reservations, including private fee lands, to be Indian country. But

even this rule has its exceptions. So, for example, in the Indian liquor laws,

Congress has excluded from Indian country any private “fee-patented lands in

non-Indian communities,” even if they are located within reservations. 18 U.S.C.

§§ 1154(c), 1156; see also United States v. M azurie, 419 U.S. 544 (1975). 2 0

19 (...continued) no § 1151(b) case for support, that was authored many decades after the passage of the statute, and that is seemingly at odds with previous editions — cannot be the alpha and omega of this court’s inquiry into statutory meaning. 20 The dissents read M azurie to suggest that the Supreme Court has adopted an approach similar to the community of reference test for evaluating cases under 18 U.S.C. § 1154(c)’s “non-Indian communities” exception. See Principal Dissent at 13-14; Separate Dissent at 2-3. But M azurie deals with an entirely different statutory provision removing from “Indian country” certain lands within the boundaries of a reservation — land that Congress has otherwise directed should be treated as “Indian country” under § 1151(a). Although the terms “non-Indian communities” and “dependent Indian communities” both concern communities, they deal with markedly different types of communities. And so the analysis to determine the bounds for each unsurprisingly differs. As Venetie explains, § 1151(b) requires a showing that Congress has designated the land as an Indian community (set-aside) and that the community is federally dependent (federal superintendence), while § 1154(c) non-Indian communities plainly require neither of these characteristics. Thus, although M azurie tells us something about how to identify non-Indian communities under § 1154(c), it tells us nothing about how to identify dependent Indian communities under § 1151(b). The Supreme Court itself noted just this point. See M azurie, 419 U.S. at 553 n.10 (“W e note that the § 1154(c) exception is available for fee-patented lands which (continued...)

-61- Checkerboarding is also an unavoidable byproduct of subsection (c), as

Yazzie and Cohen’s Handbook note. See Yazzie, 909 F.2d at 1421-22; Cohen

(1982) Ch. 1, § D3c, at 39 n.105 (“[A]n irregular arrangement of Indian country

can exist through the inclusion of off-reservation allotments in its definition.”).

By definition, allotments outside reservations are stray plots, pieces of land,

parcels. Set aside and superintended for Indians, they are Indian country even

while neighboring territory is not. The “checkerboard region” of New M exico

bears witness to all this, with Indian allotments lying cheek by jowl with lands

owned by private persons or the state or the federal government. See Appendix.

To be sure, Congress sought to mitigate, to a degree, the checkerboarding created

by the allotment system by extending federal jurisdiction over “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(c) (emphasis added).

But this hardly eliminates the checkerboard jurisdiction that allotments inevitably

create. Indeed, nothing we might do today will ameliorate the checkerboard

nature of the area in which HRI’s land lies. The allotment system of subsection

20 (...continued) are in non-Indian communities, rather than for those which are not in Indian communities. This fact renders irrelevant the inability of prosecution witnesses to specify precise boundaries of the Fort W ashakie Indian community.”).

-62- (c) bears the lion’s share of blame for the area’s jurisdictional patchwork, and no

interpretation of subsection (b) will change that unavoidable fact.

W hile no interpretation of § 1151(b) can eliminate the area’s

checkerboarded character, Venetie’s set-aside and superintendence requirements

at least ensure that the boundaries of dependent Indian communities will be

precisely and predictably defined. Under the community of reference approach

favored by EPA, these boundaries would be defined in a more convoluted and less

predictable manner. And even after a “community of reference” is defined, its

boundaries would likely be irregular, jigsawed, and themselves often hard to

discern, as the boundaries of many communities are.

One glance at a map of the Church Rock Chapter confirms as much. See

Appendix. The Chapter includes within its boundaries a narrow jog across

Interstate 40 and a small chunk of land south of the highway. And there it

includes a long strip of private fee lands along the Chapter’s southeastern

boundary, yet (without explanation) not other immediately adjacent private fee

lands. At the same time, in the center of the Chapter lies Red Rock State Park,

which the Chapter excludes from its boundaries, creating a sort of doughnut hole

(and raising the perplexing question: to what — noncontiguous — “community of

reference” might the park belong?). If that weren’t enough, and seemingly at

odds with the exclusion of this particular piece of state-owned property, the

-63- Chapter purports (again without explanation) to include other state-owned lands

within its boundaries. Far from curing a checkerboard problem, the upshot of the

community of reference test is to invite an odd sort of parquetry all its own. 2 1

W orse still, the community of reference test creates multiple, unpredictable,

and shifting checkerboards — and does so in the context of a criminal statute, in

tension with the “basic principle” of due process “that a criminal statute must

give fair warning of the conduct that it makes a crime.” Bouie v. City of

Columbia, 378 U.S. 347, 350 (1964); cf. Flores-Figueroa v. United States, 129

S. Ct. 1886, 1895 (2009) (Scalia, J., concurring in part and concurring in the

judgment) (calling expansions of criminal liability based on factors outside the

statute’s text “not unlike the practice of Caligula, who reportedly wrote his laws

in a very small character, and hung them up upon high pillars, the more

effectually to ensnare the people” (internal quotation marks omitted)).

The Supreme Court has repeatedly warned us against the “judicial

expansion of narrow and precise statutory language” in the criminal context

21 EPA and the principal dissent fail to explain how the Red Rock doughnut hole might permissibly be excluded from their community of reference, while “a vacant lot in the middle of a developed neighborhood” must be part of the surrounding community. Principal Dissent at 9-10. It seems the only possible explanation they might offer is that the Navajo Nation has chosen to exclude the Red Rock State Park from the Church Rock Chapter boundaries. And this highlights one way the community of reference can go wrong, by impermissibly delegating to a tribe Congress’s authority to define “Indian country.” See Venetie, 522 U.S. at 531 n.6.

-64- because “a deprivation of the right of fair warning can result not only from vague

statutory language but also from an unforeseeable and retroactive judicial

expansion” of statutes. Bouie, 378 U.S. at 352.2 2 This is a principle we cannot

help but bear in mind even here, in a civil case. It remains, after all, a criminal

statute we are expounding. And this is no mere “technical[ity]” or “hypothetical.”

Principal Dissent at 7; Separate Dissent at 4. Though EPA has chosen, for now at

least, to link its SDW A permitting authority to the scope of a criminal statute, it

may not have to live with this regulatory decision forever. Our interpretation of

the statute, meanwhile, will apply to all criminal cases arising under § 1151(b)

and cannot so easily be discarded. 2 3

22 See also Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408, 425 n.8 (1989) (W hite, J., for the Court in part and dissenting in part) (rejecting a proposed jurisdictional approach because the “uncertainty that would result from the necessarily case-by-case determination of which regulatory body (or bodies) has zoning jurisdiction over such land” (citations omitted)); Ute Indian Tribe of the Uintah & Ouray Reservation v. State of Utah, 114 F.3d 1513, 1527 (10th Cir. 1997) (“[T]he task of allocating jurisdiction necessarily involves line-drawing, and in an area where there is a compelling need for uniformity, there must be a single bright line.”). 23 The Supreme Court recently reminded us, moreover, that even in civil cases “administrative simplicity is a major virtue in a jurisdictional statute.” Hertz Corp. v. Friend, 130 S. Ct. 1181, 1193 (2010); see also id. (explaining that “[s]imple jurisdictional rules . . . promote greater predictability[, which] is valuable to corporations making business and investment decisions”). This is because “[c]omplex jurisdictional tests complicate a case, eating up time and money as the parties litigate, not the merits of their claims, but which court is the right court to decide those claims.” Id. As a result, such tests “produce appeals and reversals, encourage gamesmanship, and, again, diminish the likelihood that (continued...)

-65- Venetie supplies a test that is consistent with the statute’s meaning, history,

and structure; and asking whether a piece of land has been explicitly set aside for

Indian use and is federally superintended is a reasonably precise and clear task.

The community of reference test, by contrast, is anything but these things.

Consider the couple who pops a bottle of champagne to celebrate their vacation

on private land in New M exico that is neither set aside nor superintended for

Indians. Say it turns out that the land beneath their picnic blanket is within the

political boundaries a Navajo Chapter has asserted for itself. Has the couple just

committed a federal offense by introducing alcohol into a dependent Indian

community? See 18 U.S.C. §§ 1154, 1156. Under EPA’s approach, no one could

be sure until a court has conducted a multi-factor community of reference test and

tallied up the set-aside and superintendence percentages. Under that test, the

legality of one’s actions would thus become a post hoc guessing game. W hich

nearby community might the court pick as its community of reference? Is the

community’s population cohesive enough? Are there enough businesses in town

to make it a true “mini-society”? W hat percentage of the land within the

community’s boundaries is federally set aside and superintended? Is that

23 (...continued) results and settlements will reflect a claim’s legal and factual merits.” Id.

-66- percentage enough to make it a dependent Indian community? One wrong guess,

and the pop of a champagne cork makes our couple federal offenders.

The case before us illustrates just how hard all that guessing can be. EPA

determined that the appropriate community of reference in this case was the

Church Rock Chapter, despite evidence that most of the Chapter’s residents work

in Gallup; most services and infrastructure are provided by the city, county, or

state; the entire area around Section 8 is uninhabited and, in the Chapter’s words,

“not suitable for community . . . development”; and EPA itself has concluded that

no community is ever likely to use the aquifer under HRI’s land as a source of

drinking water. On a record like this, it seems one might just as easily have

determined that the “appropriate” community of reference was larger than the

Chapter, perhaps embracing Gallup or all of M cKinley County. Or, perhaps just

as plausible, an area smaller than the Chapter, comprising only those outlying

“rugged mountain ranges, canyons, and highlands” that the Chapter has indicated

aren’t suitable for development. See HRI II, 562 F.3d at 1269 (Frizzell, J.,

dissenting). Or perhaps one might have even concluded that HRI’s land just isn’t

part of any community at all. The whole exercise takes on the feel of Goldilocks,

searching for an “appropriate” community of reference that feels “just right.”

And that’s just the start of things. Having defined a community of

reference, it still remains under the approach urged by EPA and the dissents to

-67- ask whether a sufficient degree or percentage of the land in that community is set

aside and federally superintended. But the requisite degree or percentage, of

course, is specified nowhere in the text of the statute, our pre-Venetie precedent,

EPA’s land status determination, or the dissenting opinions. It must be, then, that

this is a sort of I-know-it-when-I-see-it test. Cf. Jacobellis v. Ohio, 378 U.S. 184,

197 (1964) (Stewart, J. concurring). EPA and the principal dissent tell us that

78% set-aside and 92% federal superintendence is sufficient. Land Status

Determination at 11-12; Principal Dissent at 32-33. But one can’t help to

wonder: W ould 70% set-aside and 90% superintendence cut it? And what

happens when those percentages fall a bit farther still? Or if the numbers are

reversed? Such extra-statutory guesswork is hardly the stuff on which criminal

determinations should turn. 2 4

Neither would the scope of “appropriate communities of reference” remain

stable under EPA’s approach. W ith such nebulous criteria to employ, different

courts would surely reach different conclusions about whether the same parcel of

land falls within one community of reference or another — and thus reach

competing holdings about which sovereign enjoys primary criminal law authority.

24 EPA can’t even be sure of the percentages on which it relies. As the principal dissent acknowledges, the Agency’s figures “do not add up exactly to 100% .” Principal Dissent at 2 n.1. W e are told not to worry, though, because the various percentages in the record are “within 2.4 % ” of each other, id., and this margin of error is — we are left to presume — no big deal.

-68- W orse still, and as we have already noted, even the same court may take a

different view about a community of reference’s boundaries at different times —

shrinking or expanding those boundaries depending on social or political changes

in the area. See supra Section III.A. So just because a piece of land was (or

wasn’t) Indian country at the time of the last judicial decision, that’s no guarantee

the result would be the same next time. No one could be sure.

The dissents’ approach would complicate things further still by introducing

the possibility of special purpose communities of reference. Given the

“environmental context” in which this case arises, the principal dissent would

have us consider presumed “common hydrolog[ical]” links between HRI’s land

and other parts of the Chapter. Principal Dissent at 14-15, 27. But one would

think that, in non-environmental cases, courts would not be obliged to look at the

hydrological “context” when trying to determine the appropriate community of

reference. W ho, after all, would fault the parties and court for failing to consider

hydrological details in, say, a more conventional § 1151(b) case involving a

conspiracy to commit various burglaries? Presumably, under the dissents’

approach, a court would instead focus on whatever the relevant “context” of the

case at hand may be. So, to take the burglary case, a court would presumably take

account of the “burglary context” in which the case arises. If strong links are

found to exist between the housing markets in Church Rock and Gallup, the court

-69- might then conclude that the “appropriate” community of reference in that

“context” encompasses both. The appropriate community of reference in an

environmental case thus could be different than the appropriate community of

reference in a burglary case, and both might be different than the right community

of reference in still other kinds of cases. So it is that the same piece of land could

be both Indian country and not Indian country even in the same court at the same

time — depending, that is, on the “context” of the case. 2 5

In this way, the community of reference test invites not just a checkerboard,

but a virtually three-dimensional checkerboard, a sort of ever-shifting

jurisdictional Rubik’s cube, “jettisoning relative predictability for the open-ended

rough-and-tumble of factors” that assures “complex argument[s] in [the] trial

court and . . . virtually inevitable appeal[s].” Jerome B. Grubart, Inc. v. Great

Lakes Dredge & Dock Co., 513 U.S. 527, 547 (1995). And precisely because of

25 The dissents’ approach rests on the factual premise that Section 8 shares a common “hydrology [with] the entire Church Rock Chapter,” such that “any pollution into the aquifers” under Section 8 “would likely affect much of the Chapter population.” Principal Dissent at 27-28. EPA, however, disputes this premise, having concluded that any aquifer affected by HRI’s operations on Section 8 “cannot now and will not in the future serve as a source of drinking water.” See supra Section I.C. And the dissents cite no record authority to support their competing claim. W hile this court is no less sensitive than the dissents to the potential contamination of drinking water, we can claim no expertise on the hydrology of M cKinley County and have no idea whether EPA’s scientific assessment (unchallenged by the parties before us), or the dissents’, is correct. W e can be certain, however, that the plain language of § 1151(b) doesn’t require us to become hydrological experts to apply the law.

-70- the test’s complexity, this dispute has dragged on, year after year, decade after

decade, through regulatory proceedings, an appeal, a remand, and an appeal yet

again. Since NM ED granted HRI a UIC permit in 1989, the lawyers have fought,

the parties have lobbied, and an agency and the courts have stewed over the

mushy ingredients in the community of reference soup, all in an effort to get the

recipe “just right.” So it is that this dispute has nearly reached the age of

majority waiting to be served the perfected answer.

Despite all this, the principal dissent levels the remarkable accusation that

our decision today “introduc[es] confusion” into an area of law “settled for

decades” and “overturn[s] decades of our precedent.” Principal Dissent at 2; see

also id. at 31. But not only is the atextual community of reference test the source

of confusion in this area of law, it is hardly as old or as venerated as the dissents

would have it. In fact, the community of reference test is younger than this

dispute; it’s been around for only fifteen of the sixty-two years since Congress

-71- enacted § 1151(b).2 6 And in that time, the test has always been a work in

progress, anything but “settled.”

In the first place, the test has been applied only a few times since its

genesis, and sporadically at that. After Watchman created the test in 1995, we

applied it in a published opinion only once before Venetie came along in 1998.

See Adair, 111 F.3d at 774-75.2 7 W hen the Supreme Court speaks, it (of course)

supercedes our prior case law. And in 1999, in the first § 1151(b) case following

Venetie, we did not use the community of reference test, but straightforwardly

applied Venetie’s two requirements. See Roberts, 185 F.3d at 1133. In a second

post-Venetie case that followed several years later, we appeared to split the

difference, saying “[w]e examine the entire Indian community,” but conducting no

community of reference analysis and holding only that “lands within the exterior

boundaries of a Pueblo land grant, to which the Pueblo hold title, are Indian

26 The principal dissent pegs the test’s age at twenty, citing the Yazzie decision from 1990. But that’s mistaken. Yazzie adopted a holding under § 1151(a), not § 1151(b), and thus said nothing about a community of reference test. The principal dissent’s citation to Yazzie points to that decision’s appendix, where this court merely reproduced (without endorsement) the district court opinion discussing § 1151(b) in a consolidated case. That’s why, five years later in Watchman, this court called the community of reference question “a question of first impression.” 52 F.3d at 1543. 27 In an unpublished decision also preceding Venetie, a panel of this court acknowledged the existence of the community of reference test but declined to apply it because it “was not addressed by the parties or the district court.” Eaves v. Champion, 1997 W L 291186, at *2 n.4 (10th Cir. 1997) (unpublished).

-72- country.” United States v. Arrieta, 436 F.3d 1246, 1250-51 (10th Cir. 2006)

(emphasis added). Thus, the only Tenth Circuit case clearly to employ the

community of reference test after Venetie is this case, which created an intra-

circuit split with Roberts, a fact that led us to grant en banc review.

In the second place, in each of the (few) cases we’ve applied the test, we’ve

changed it. Literally. W hen creating the test in Watchman, we identified “two

organizing principles” — “the status of the area in question as a community” and

“the context of the surrounding area.” 52 F.3d at 1543-44. Two years later, in

Adair, we added another factor concerned with “the geographical definition of the

area proposed as a community.” 111 F.3d at 774. And in this case the principal

dissent would have us reconfigure the factors in its balancing test yet again. See

supra note 17. In its view, the test should now ask “whether the land . . .

possesses a reasonable degree of coherence” and “whether the uses to which the

land is put and the people inhabiting the land possess a reasonable degree of

coherence.” Principal Dissent at 26.

Truth be told, then, the confusion in this area of law has been sown by the

community of reference test. Its lack of any basis in the statute’s text, history, or

structure, its multifarious and incommensurable competing factors, the

unpredictable results it yields, and its constant judicial reworking — all of this

has left the law and litigants confused. Rather than adding to the confusion, our

-73- decision today eschews yet more tinkering in favor of the simple and predictable

test the Supreme Court has told us to use. 2 8

Though it does not control our outcome, it’s worth noting that our decision

today brings the law of this circuit into harmony with the law developed in our

sister circuits after Venetie. In Blunk v. Arizona Department of Transportation,

177 F.3d 879 (9th Cir. 1999), the Ninth Circuit acknowledged that “Venetie

control[led] [its] decision,” and then concluded that the Navajo fee land in

question before it was not Indian country under § 1151(b) because the land was

28 The separate dissent’s suggestion that our decision disregards the “effects of a mining operation that may greatly impact the surrounding lands,” is likewise unwarranted. Separate Dissent at 5. No one questions that mining operations can pose “grave consequences.” Id. It is this court’s hope, no less than the hope of the dissents, that the appropriate agencies will do their assigned jobs in protecting the environment. See, e.g., M orris v. U.S. Nuclear Regulatory Comm’n, 598 F.3d 677 (10th Cir. 2010) (upholding Nuclear Regulatory Commission licensing of HRI’s uranium mining plans on Section 8). But we are judges, not environmental regulators. As such, “[o]ur charge,” and all this court has sought or may properly seek to do, “is to give effect to the law Congress enacted.” Lewis v. City of Chicago, 560 U.S. __, Slip Op. at 11 (2010).

The separate dissent is likewise mistaken when it suggests that today’s decision means that HRI’s activities will no longer be “subject to federal environmental regulations.” Separate Dissent at 1, 6. As we have explained, the SDW A, a federal statute, provides the regulatory framework for all UIC permits nationwide. EPA regulations govern when those permits may be issued. Thus, although EPA may have delegated to NM ED authority to issue permits in New M exico, NM ED may issue its permits only in compliance with federal law (SDW A) and federal (EPA) regulations. Indeed, EPA suggested that no case or controversy exists before us precisely because of this. See supra Section II.A.

-74- neither set aside nor superintended by the federal government. Id. at 883-84. In

reaching its conclusion, the Ninth Circuit rejected the notion, lying at the heart of

EPA’s position here, that the land in question might be considered Indian country

“because of its proximity or importance to the Navajo Reservation.” Id. at 884.

The court conducted no community of reference analysis and considered no

factors other than Venetie’s two requirements. Id. at 883-84.

In Yankton Sioux Tribe v. Podhradsky, 577 F.3d 951 (8th Cir. 2009), the

Eighth Circuit conducted a similarly straightforward application of Venetie.

Considering whether scattered trust lands qualified as Indian country under

§ 1151(b), the Eighth Circuit concluded that all of these lands “easily meet

[Venetie’s] definition.” Id. at 971. At no point did the court seek to place these

various parcels within a larger community of reference, nor did it analyze the

particular parcels at issue in light of any factors other than the two Venetie

prescribes. See id. Had the Eighth Circuit applied the community of reference

test urged by EPA, the result in Yankton might have been quite different —

perhaps the non-Indian lands interspersed among the scattered trust lands might

have become “Indian country,” or perhaps, if the non-Indian land had

-75- predominated the community, the scattered trust lands might have ceased to be

“Indian country” under § 1151(b). 2 9

A state court within our jurisdiction has also rejected this circuit’s

community of reference jurisprudence in favor of Venetie’s two-part analysis. In

State v. Frank, 52 P.3d 404 (N.M . 2002), the Supreme Court of New M exico held

that the § 1151(b) inquiry must focus solely on the land in question, not on some

broader community of reference. Id. at 409 (“In light of the clear guidelines in

the Venetie opinion, we decline to incorporate a community of reference inquiry

into our case law.”). Indeed, the court acknowledged, as we have today, that “the

six-factor test that was rejected by the Supreme Court in Venetie used essentially

the same factors as those in” this court’s community of reference test. Id.; see

also id. (“The Venetie two-prong test redirects our attention . . . away from the

29 For this reason, EPA and the principal dissent are wrong when they suggest that Blunk and Yankton shouldn’t be read to reject the use of a threshold community of reference test because they didn’t consider it. See Principal Dissent at 21-24. The fact is that each court put every parcel of land at issue through the Venetie two-part test and required that each, not some “percentage” or “degree,” satisfy those requirements. In Blunk, none of the Navajo fee land met Venetie’s requirements, while in Yankton, all of the miscellaneous trust lands met the two requirements. If the community of reference test were an essential threshold inquiry, as EPA and the principal dissent argue, it’s unclear how these courts could have conducted a proper § 1151(b) analysis without it.

-76- more nebulous issue of community cohesiveness.” (internal quotation marks

omitted)). 3 0

IV

Ultimately, Venetie compels us to abandon the community of reference test.

Under the proper test we adopt today, only two questions are relevant in assessing

30 The New M exico Supreme Court took a somewhat different approach when dealing with private land within pueblo boundaries. See State v. Romero, 142 P.3d 887, 895 (N.M . 2006). In Romero, the court held that private land within the original land grant of the Taos pueblo is Indian country and therefore beyond the state’s criminal jurisdiction. The Romero court distinguished its case from Frank on the grounds that pueblos have long been recognized as Indian country. See id. at 892. Although the court appeared to treat the pueblo as a dependent Indian community under § 1151(b), much of its analysis focused on comparing pueblos to reservations under § 1151(a). See, e.g., id. at 894 (“W e determine that a pueblo satisfying § 1151(b) is sufficiently similar to a reservation in § 1151(a) to merit identical treatment for the purposes of criminal jurisdiction.”). Along these lines, the court declined to conduct a community of reference analysis, and instead analyzed the pueblo as it would a reservation. It is not entirely clear how to reconcile Frank and Romero, and to the extent that the two cases conflict, we agree with Frank. Land not explicitly set aside and superintended is not Indian country under § 1151(b). Neither is it clear whether or what remaining force Romero bears today, given that Congress has now spoken directly to the criminal jurisdictional status of privately titled lands within pueblo boundaries in New M exico. See Indian Pueblo Land Act Amendments of 2005, Pub. L. No. 109-133, 119 Stat. 2573, codified at 25 U.S.C. § 331 Note; see also supra Section III.B. Romero was obliged to analyze the land in question under § 1151 alone rather than in light of Congress’s new statute because the statute didn’t apply retroactively to the case. See Romero, 142 P.3d at n.1; see also Robert L. Lucero, Jr., State v. Romero: The Legacy of Pueblo Land Grants and the Contours of Jurisdiction in Indian Country, 37 N.M . L. Rev. 671, n.6 (2007) (explaining the history and structure of the Act’s jurisdictional grant). And considering that Romero explicitly declined to overrule Frank, there can be little question that Frank remains governing law in New M exico. See Romero, 142 P.3d at 892.

-77- claims of jurisdiction under § 1151(b): (1) Has Congress (or the Executive,

acting pursuant to delegated authority) taken some action explicitly setting aside

the land in question for Indian use? (2) Is the land in question superintended by

the federal government? Because the parties agree that the land in question in

EPA’s final land status determination — HRI’s segment of Section 8 — is neither

explicitly set aside for Indian use nor federally superintended, it follows that, as a

matter of law, the land does not qualify as Indian country under § 1151(b). And

from this it follows that EPA’s final land status determination holding otherwise

must be vacated as inconsistent with the statute. W hile the outcome may have

been different under this circuit’s Watchman test, Venetie is now the law and

neither we nor EPA may ignore it.

It may be that Venetie complicates to some degree EPA’s efforts to regulate

activities affecting underground water sources, which of course don’t follow neat

land survey lines. But that is because the Agency has chosen, in an exercise of its

considerable discretion under the SDW A, to limit its primary regulatory authority

over water quality to those Indian lands encompassed by § 1151, a criminal

jurisdictional statute. W hile § 1151 does its job of assigning prosecutorial

authority over particular tracts of land tolerably well, it is perhaps unsurprising

that it may prove less satisfactory when it comes to allocating regulatory authority

-78- over aquifers running beneath those lands. Crimes, after all, usually occur on

land, not in aquifers.

Someday, EPA may seek to avoid these difficulties by unhitching its UIC

permitting authority from § 1151. W e do not purport to pass on the propriety or

wisdom of such a move. For now, we concern ourselves only with EPA’s current

choice to confine its authority in New M exico to what § 1151 deems Indian

country. And on that score, we cannot help but conclude that EPA’s final land

status determination under review is inconsistent with the statute’s terms as a

matter of law and cannot stand.

The panel opinion is vacated, the petition for review is granted, and the

EPA’s final land determination is vacated.

-79- A PPEN D IX E B EL , Circuit Judge, joined by B R ISC O E , Chief Judge, H EN R Y , LU C E R O , and M U R PH Y , Circuit Judges, dissenting.

In Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520

(1998), the Supreme Court rejected the Ninth Circuit’s multi-factor test for

determining whether a given area of land constitutes a dependent Indian

community. Instead, the Court held that a two-part test should be applied to

determine whether the “land in question” is a dependent Indian community: first,

by considering whether the land was “set aside by the Federal Government for the

use of the Indians as Indian land,” and second, assessing whether the land is

“under federal superintendence.” Id. at 527.

W hile this test is straight-forward enough, the Supreme Court did not

address a separate, antecedent question: to what area of land should this two-part

test be applied? In other words, how do we determine the “land in question”?

Over the last twenty years in this circuit, we have held that a “community-of-

reference” test must be employed to determine the appropriate community, before

determining whether that community is both “dependent” and “Indian.” See, e.g.,

Hydro Res., Inc. v. EPA (“HRI II”), 562 F.3d 1249, 1261 (10th Cir. 2009); Hydro

Res., Inc. v. EPA (“HRI I”), 198 F.3d 1224, 1248 (10th Cir. 2000); United States

v. Adair, 111 F.3d 770, 774 (10th Cir. 1997); Pittsburg & M idway Coal M ining

Co. v. W atchman, 52 F.3d 1531, 1543 (10th Cir. 1995), abrogated in part by Venetie, 522 U.S. 520; Pittsburg & M idway Coal M ining Co. v. Yazzie, 909 F.2d

1387, 1431 (10th Cir. 1990).

Today, the majority holds that, even though the Court in Venetie did not so

much as consider the appropriate way to determine the relevant community— and,

to the extent it did consider the question, it looked at the broader community

rather than a narrow tract of land— Venetie nevertheless abrogated our

community-of-reference test. By overturning decades of our precedent, the

majority introduces confusion into an area of law that had been largely settled,

and does so based on a case that did not even consider the issue. I respectfully

dissent.

I. B ackground

The Church Rock Chapter of the Navajo Nation was formally certified as a

local governmental unit by the Navajo Nation Council in 1955, although residents

built a Chapter House for local governance purposes in 1946. The Chapter, which

is located just east of the town of Gallup, New M exico, consists of over 57,000

acres. The federal government holds approximately 52% of this land in trust for

the Navajo nation, and holds an additional 26% in trust in the form of allotments

to individual Indians. The Bureau of Land M anagement (“BLM ”) owns an

additional 10% of the land, which is subject to grazing leases granted to Navajos.

-2- In addition, the state of New M exico owns about 4% the remaining land, and

private interests own approximately 6% . 1

In 1970, United Nuclear Corporation (“UNC”) purchased 160 acres of land

in the Church Rock Chapter, in the southeast corner of Section 8, Township 16N,

Range 16W (“Section 8”), from the United States. HRI II, 562 F.3d at 1254.

Hydro Resources, Inc. (“HRI”), a non-Indian mining corporation, later purchased

the land, as well as UNC’s patents for uranium-mining claims on that land, with

the intent to operate a mine. Id. HRI thus owns this land in fee simple. The

remaining three-fourths of Section 8 are owned by the United States in fee simple.

Section 8 is surrounded on two sides by land owned by the United States in fee,

and on two sides by land owned by the United States and held in trust for the

Navajo.

No one lives on the Section 8 land, though the three-fourths of Section 8

not owned by HRI are subject to grazing permits issued by the United States

Bureau of Indian Affairs (“BIA”). Located approximately six miles northeast of

the Chapter House, the infrastructure on HRI’s Section 8 land is primarily

provided by the State of New M exico and M cKinley County. The state maintains

1 These figures do not add up exactly to 100% , and the record reflects some confusion as to the precise acreages of land owned by these different entities. Nonetheless, the various estimates provided in the record are all relatively close to one another, within 2.4% . I have cited the estimates used by EPA in its Determination, and neither party challenges the substantive accuracy of these numbers. -3- the only access road to Section 8, State Highway 566, and HRI pays annual

property taxes on the land to M cKinley County. If HRI ever begins operating a

mine on the property, the Public Service Company of New M exico will provide it

electricity, and the New M exico State W ater Engineer has already approved HRI’s

request for water rights.

In addition to the land in the Chapter being overwhelmingly owned by or

for Navajos, the demography of the Chapter also shows an overwhelming Navajo

presence. According to the 2000 census, approximately 98% of the Chapter’s

2,802 residents are Navajo, and most of the rest are married to a Navajo. The

residents primarily speak Navajo. M any residents of the Chapter raise livestock

on Chapter lands— sometimes supplementing their income by producing

traditional wares such as jewelry, stone and wood carvings, and by sewing and

weaving— although some work in the nearby town of Gallup, which is located

outside the boundaries of the Chapter.

The Chapter House, approximately three miles east of Gallup, acts as the

social and political center for the Church Rock Chapter. Eighty-eight percent of

Church Rock residents go to the Chapter House at least once a month. The

Chapter House includes a Head Start center, elementary school, churches, and

other buildings that provide for many of the residents’ educational, spiritual, and

health needs. The Navajo Nation “provides housing, electricity, drinking water,

wastewater treatment, sewer services, and utilities,” as well as police protection -4- to residents of the Chapter, and the Chapter itself provides “scholarships, home

repair and purchase assistance, and meals for seniors.” (R. doc. 44 at 21.) The

federal government also provides some services in the Chapter, including road

maintenance, grazing management and permitting, social and health services, and

conservation services. W hile the state of New M exico and the county maintain

the main roads, most schools, and provide fire and EM S services, the

Superintendent of the Eastern Navajo Agency of the BIA confirmed that the BIA

considers the Church Rock Chapter to be a “distinct communit[y] of Navajo

Indians who depend primarily on federal and tribal governmental services and

protection.” (R. doc. 13b at 132.)

II. D iscussion

As discussed more fully in the majority opinion, HRI now seeks a

determination that EPA incorrectly decided that HRI’s Section 8 land is part of a

dependent Indian community and thus subject to EPA’s jurisdiction for Safe

Drinking W ater Act (“SDW A”) purposes rather than the jurisdiction of the New

M exico Environmental Department (“NM ED”). HRI argues that EPA improperly

considered the entire Church Rock Chapter in concluding that Section 8 was

within a dependent Indian community, and that HRI’s Section 8 land, by itself,

does not constitute a dependent Indian community for purposes of § 1151(b).

EPA and the Navajo Nation maintain that EPA correctly determined that HRI’s -5- Section 8 land is within a dependent Indian community and thus is Indian country

under § 1151(b). 2

A . T he m eaning of the w ord “com m unities” in 18 U .S.C . § 1151(b)

The question presented by this appeal requires the court to determine the

meaning of the phrase “dependent Indian communit[y]” as used in 18 U.S.C. §

1151(b). “As with any question of statutory interpretation, our analysis begins

with the plain language of the statute.” Jimenez v. Quarterman, --- U.S. ---, 129

S. Ct. 681, 685 (2009); see also Coffey v. Freeport M cM oran Copper & Gold, 581

F.3d 1240, 1245 (10th Cir. 2009). Title 18, United States Code, Section 1151

2 I agree with the majority that EPA’s Determination is not entitled to deference under Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council Inc., 467 U.S. 837 (1984). I would, however, afford the Determination deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Skidmore deference is a lesser form of deference in which “the weight to be given the agency’s practice in particular circumstances depends upon ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.’” M cGraw v. Barnhart, 450 F.3d 493, 501 (10th Cir. 2006) (quoting Skidmore, 323 U.S. at 140). Based on these factors, I would defer to EPA’s Determination to a degree “proportional to its ‘power to persuade.’” United States v. M ead Corp., 533 U.S. 218, 235 (2001) (quoting Skidmore, 323 U.S. at 140). The majority states that it is “inappropriate” to consider whether the EPA’s Determination warrants Skidmore deference because EPA has not asked for such deference. However, “[a] party’s concession on the standard of review does not bind the court, as ‘such a determination remains for the court to make for itself.’” United States v. Bain, 586 F.3d 634, 639 n.4 (8th Cir. 2009) (quoting K & T Enter., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996)); see also W orth v. Tyler, 276 F.3d 249, 262 n.4 (7th Cir. 2001); Izzarelli v. Rexene Prods. Co., 24 F.3d 1506, 1519 n.24 (5th Cir. 1994); cf. Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009) (concluding that AEDPA’s standard of review cannot be waived). -6- provides:

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 (emphasis added). W hile technically a criminal statute, § 1151

applies in civil contexts as well. See Venetie, 522 U.S. at 527 (citing DeCoteau

v. Dist. County Court for Tenth Judicial Dist., 420 U.S. 425, 427 n.2 (1975)); see

also Enlow v. M oore, 134 F.3d 993, 995 n.2 (10th Cir. 1998) (“18 U.S.C. § 1151 .

. . defines ‘Indian country’ for civil as well as criminal jurisdiction.”).

It is a well-settled principle of statutory construction that “we are to give

meaning to every word of a statute where possible.” Smith v. M idland Brake,

Inc., 180 F.3d 1154, 1165 (10th Cir. 1999) (en banc) (citing Ratzlaf v. United

States, 510 U.S. 135, 140 (1994)). Therefore, I begin from the uncontroversial

premise that “dependent Indian communities” in subpart (b) must have some

meaning that is independent from the meanings of “Indian country” provided in

subparts (a) and (c) of the statute. Subpart (a) includes as “Indian country” “all

land within the limits of any Indian reservation under the jurisdiction of the

United States Government.” 18 U.S.C. § 1151(a). Subpart (c) applies “Indian

country” to “Indian allotments,” which refers to “land owned by individual -7- Indians and either held in trust by the United States or subject to a statutory

restriction on alienation.” Felix S. Cohen, Handbook of Federal Indian Law

§ 3.04[2][c][iv], at 195 (2005 ed.) (hereinafter “Cohen”); see also United States v.

Ramsey 271 U.S. 467, 470 (1926). Thus, a “dependent Indian community” must

refer to something other than reservation lands and allotted lands. Venetie, 522

U.S. at 527 (concluding that the phrase “dependent Indian communities . . . refers

to a limited category of Indian lands that are neither reservations nor allotments”);

see also Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993)

(“Congress has defined Indian country broadly to include formal and informal

reservations, dependent Indian communities, and Indian allotments . . . .”).

The use of the word “community” in the statute implies the existence of

some setting within which the property in question is to be evaluated. Other areas

of the law that draw upon the notion of a community show that community means

context. For example, the obscenity standard developed by the Supreme Court in

the First Amendment arena requires the trier of fact to apply “contemporary

community standards,” a contextual inquiry that may produce different outcomes

depending upon the community in which the test is applied. M iller v. California,

413 U.S. 15, 32 (1973) (“It is neither realistic nor constitutionally sound to read

the First Amendment as requiring that the people of M aine or M ississippi accept

public depiction of conduct found tolerable in Las Vegas, or New York City.”).

Similarly, when considering whether a governmental action violates the -8- Establishment Clause of the First Amendment, courts consider whether a

reasonable observer, “aware of the history and context of the community and

forum in which the religious display appears,” would consider the action as

endorsing religion. M cCreary County, Ky. v. ACLU, 545 U.S. 844, 866 (2005)

(quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780

(1995) (O’Connor, J., concurring in part and concurring in judgment)). Zoning

regulations are also intended to “facilitate the orderly development of

communities by confining particular uses to defined areas,” so city planners must

look at the context of the area in deciding what sorts of uses to allow in the

community. 83 Am. Jur. 2d Zoning & Planning § 2 (2009). Throughout the law,

then, the term “community” is used to place the object of judicial scrutiny in an

appropriate context.

The structure of § 1151 further demonstrates that community requires a

contextual analysis rather than the parcel-by-parcel analysis favored by HRI.

Subsections (a) and (c) of § 1151 both refer to land: § 1151(a) references “all

land within the limits of any Indian reservation,” and § 1151(c) applies to “all

Indian allotments,” which are by definition specific tracts of land. See Cohen

§ 3.04[2][c][iv], at 195. Subsection (b), by contrast, does not refer directly to

land, but instead uses the broader concept of “community.” The ordinary use of

the term “community” makes it clear that the term necessitates a broader

approach. Someone looking at a vacant lot in the middle of a developed -9- neighborhood would not say that the vacant lot is not part of the community that

surrounds the lot on all sides. Similarly, a parcel of 160 acres completely

surrounded by a community of 57,000 acres should not fail to be part of that

community simply because of the ownership status of that parcel.

The purpose of § 1151 provides additional guidance for the proper

interpretation of the term “community” in § 1151(b). “[A] central purpose of the

1948 codification was to avoid checkerboard jurisdiction.” Cohen §

3.04[2][c][iii], at 194 n.429 (citing Seymour v. Superintendent of W ash. State

Penitentiary, 368 U.S. 351, 358 (1962)). Section 1151 was originally passed as a

criminal statute, and, in passing the statute, Congress sought to foreclose a

situation in which “law enforcement officers operating in [a checkerboard] area

[would] find it necessary to search tract books in order to determine whether

criminal jurisdiction over each particular offense . . . is in the State or Federal

Government.” Seymour, 368 U.S. at 358. W hile the Supreme Court in Seymour

was referring to § 1151(a), which explicitly provides that Indian country applies

to reservations “notwithstanding the issuance of any patent, and, including rights-

of-way running through the reservation,” I think the Court meant what it said

when it stated that “[s]uch an impractical pattern of checkerboard jurisdiction was

avoided by the plain language of § 1151.” Id.

Felix Cohen agreed that it is “the full statute [that] was intended to reduce

earlier difficulties which had arisen from the ‘checkerboarding’ of land ownership -10- and rights-of-way. Thus, patented parcels of land and rights-of-way within

dependent Indian communities should also be within Indian country.” Felix S.

Cohen, Handbook of Federal Indian Law, Ch. 1 § D3c, at 39 (1982 ed.)

(hereinafter “Cohen (1982)”) (emphasis added). Accordingly, the purpose of

Congress’s codification of § 1151— to smooth out much of the checkerboard

jurisdiction that complicated enforcement of criminal law— shows that a

“community” approach, rather than an isolated parcel-by-parcel approach, should

be used to determine whether land is Indian country under § 1151(b).

The majority’s conclusion that title alone is determinative of whether a

parcel of land is "Indian country" under § 1151(b) would completely eviscerate

this congressional purpose. 3 The problem of checkerboard jurisdiction is caused

by an interspersing of Indian-owned and non-Indian-owned lands in a relatively

3 The majority claims that its inquiry is solely into whether the specific parcel of land at issue is both set aside for Indian use and federally superintended, and thus does not focus on title at all. M aj. op. at 42 n.12. However, it is difficult to imagine a situation in which a piece of property owned in fee by a private individual, examined in isolation from the community in which the parcel of land is located, could meet these two criteria. In fact, HRI conceded at oral argument that, under its reading of § 1151(b), the inquiry is solely into who owns the land in fee. (Oral Argument Recording at 15:55 to 16:10.) In support of its dubious claim that title is not determinative under its § 1151(b) test, the majority cites to a note accompanying 25 U.S.C. § 331, which explicitly extends federal and tribal criminal jurisdiction to certain acts committed “anywhere within the external boundaries of a pueblo.” But this citation to a note accompanying 25 U.S.C. § 331 is simply irrelevant to determining the proper construction of a phrase in 18 U.S.C. § 1151(b). However the majority chooses to frame it, a determination that land is privately held in fee will necessarily foreclose the possibility that the land is part of a dependent Indian community. -11- small geographic area. Because the checkerboard problem is caused by title,

Congress would not have sought to remedy the problem by relying exclusively on

title to determine whether land is Indian country. Furthermore, if Congress had

intended title to be determinative, it easily could have said so in § 1151. Instead,

two of the three subsections of the statute (§ 1151(a) and (c)) clearly indicate that

title is not determinative, and the third subsection (§ 1151(b)) uses a word,

"communities," that, as discussed above, is inconsistent with a focus solely on

title. In fact, the only time Congress alludes to title at all in the statute is to state

that title is not determinative of land's Indian country status. See 18 U.S.C. §

1151(a) (defining Indian country to include "all land within the limits of any

Indian reservation . . . notwithstanding the issuance of any patent, and, including

rights-of-way running through the reservation"); id. § 1151(c) (including rights-

of-way running through Indian allotments as Indian country). W hile the Supreme

Court has held that privately-owned land can constitute Indian country under §

1151, see Solem v. Bartlett, 465 U.S. 463, 468 (1984) (applying § 1151(a) to

hold that "Indian country . . . include[s] lands held in fee by non-Indians"), today,

this court becomes the first federal appellate court to hold that land is not Indian

country solely because of who owns title. The language of the statute simply does

not compel such a drastic result.

This interpretation of the word “communities” in § 1151(b) is consistent

with the meaning the Supreme Court gave to that word in a related Indian statute. -12- Section 1154, which prohibits the introduction of spirituous beverages into Indian

country, starts with the same definition of “Indian country” found in 18 U.S.C. §

1151, but then specifically restricts that term, for the purposes of § 1154, by

excluding “fee-patented lands in non-Indian communities or rights-of-way

through Indian reservations” from Indian country status. 18 U.S.C. § 1154(c)

(emphasis added).4 The obvious inference to be drawn from this exclusion is that

the status of a particular parcel of land as “fee-patented” is not determinative of

its status as “Indian country” under § 1151, or else there would have been no need

to specifically exclude such lands from the “Indian country” definition in § 1154.

In interpreting § 1154, the Supreme Court also confirmed this interpretation

of the word “communities.” In United States v. M azurie, the defendants were

charged under 18 U.S.C. § 1154 with introducing spirituous beverages into Indian

country. 419 U.S. 544, 545 (1975). 5 The defendants in M azurie operated a bar

within the boundaries of the W ind River Reservation in central W yoming, but

“substantial tracts of non-Indian-held land are scattered within the reservation’s

boundaries,” and the bar itself was located on privately-owned fee land within the

reservation. Id. at 546-47. The Court agreed that the unincorporated town and

4 Section 1156, prohibiting the unlawful possession of intoxicating liquors in Indian country, also contains this definition of “Indian country.” 18 U.S.C. § 1156. 5 In Venetie, the Supreme Court did not criticize, or even refer to, M azurie, and so the approach adopted by the Court in M azurie remains valid.

-13- surrounding areas were an “Indian community” within the meaning of 18 U.S.C. §

1154(c), based principally on the fact that over 80% of the families in the area

were Indian, and 223 out of the 243 students enrolled in the nearby school were

Indian. Id. at 550-52. The Court thus gave meaning to the word “communities”

in the statute by looking at the surrounding area of land in which the bar was

located, rather than simply looking at the plot of land itself. This further

demonstrates that the word “communities,” as used in the Indian statutes, requires

an approach that places the specific parcel of land at issue in the context of the

surrounding area. 6

Finally, it should be remembered that this case arises specifically in an

6 Sections 1151, 1154, and 1156 were all enacted together in 1948 as part of the Indian M ajor Crimes Act, and the “non-Indian communities” language was added to sections 1154 and 1156 the following year. Indian M ajor Crimes Act, ch. 645, 62 Stat. 757-59 (1948); Act of M ay 24, 1949, ch. 139, 63 Stat. 94. This statutory history supports interpreting these statutes together. See W atchman, 52 F.3d at 1544 n.13 (“The courts have looked to non-Indian community cases and dependent Indian community cases when addressing either issue.”). As mentioned above, the majority cites to a statute enacted in 2005 that unambiguously provides for federal and tribal criminal jurisdiction in certain instances within the exterior boundaries of a pueblo as proof that § 1151(b) did not already extend jurisdiction to such lands. M aj. op. at 54 (citing 25 U.S.C. § 331 Note). To the extent a statute passed in 2005 has any significance to this court’s interpretation of a statute passed in 1948, however, it shows only that Congress wanted to unambiguously extend federal and tribal jurisdiction within pueblos rather than rely on the contested interpretation of § 1151(b). Accordingly, I consider the code provisions passed contemporaneously with § 1151 and that courts have consistently interpreted as interrelated with § 1151, see W atchman 52 F.3d at 1544 n.13, to be more instructive to the meaning of § 1151 than a bill passed five years ago and codified in a different title of the United States Code. -14- environmental context. This case is before the court as a review of a

determination made by the EPA pursuant to the SDW A that the portion of Section

8 at issue is a dependant Indian community and that “EPA is therefore the

appropriate agency to consider underground injection control permit applications

under the [SDW A] for that land.” (R. doc. 44 at 1.) In the natural resources

context, the notion of community assumes heightened importance. Aquifers

generally are not found underneath just one specific isolated parcel of land, but

rather extend under surrounding lands as well, and indeed the aquifer underneath

HRI’s Section 8 land runs underneath much of the Chapter. The externalities

produced by a mining operation— including pollution, traffic, and the aesthetic

harms created by having a large mining operation nearby— also affect the

surrounding community. Indeed, the SDW A recognizes that water is a communal

good that is affected by those around it and focuses much of its protection on

“community water system[s].” 42 U.S.C. § 300f(15). Given the potential for

diffuse harm posed by a mining operation, then, encouraging the checkerboard

jurisdiction that Congress sought to avoid in enacting § 1151 makes even less

sense in the SDW A context than it does in the criminal context in which the

statute was originally enacted.

For these reasons, the word “communities” in § 1151(b) requires

consideration of the land in context, and not in isolation on a parcel-by-parcel

basis. See Cohen § 3.04[2][c][iii], at 194 (stating that a parcel-by-parcel -15- approach “reads the word ‘communities’ out of the statute and increases the

possibility of checkerboard jurisdiction”).

B . V enetie

The majority concludes that the Supreme Court’s decision in Venetie

forecloses a community-of-reference analysis. I disagree.

A brief discussion of the factual background of Venetie elucidates what the

Court did and did not decide in that case. In Venetie, the Native Village of

Venetie Tribal Government sought to tax a private contractor and the State of

Alaska, who were joint venturers in the construction of a public school on a

specific parcel of land in the village of Venetie. 522 U.S. at 523. Venetie and

another neighboring village had been part of a reservation established in 1943 for

the Neets’aii Gwich’in Indians. Id. at 523. In 1971, however, Congress enacted

the Alaska Native Claims Settlement Act (ANCSA), which “revoked the various

reserves set aside . . . for Native use” and extinguished all native claims to Alaska

land.7 Id. at 524 (citing 43 U.S.C. §§ 1603, 1618(a)) (quotations omitted). As

compensation, Congress authorized the transfer of $962.5 million and 44 million

acres of Alaska land to state-chartered private business corporations. Id. Under

7 There was one exception to the revocation of the reserves, see 43 U.S.C. § 1618(a), but that exception was not relevant to the issue in Venetie. -16- the ANCSA, the shareholders of these corporations had to be Alaska Natives. Id.

The land issued to these corporations was transferred in fee simple, with no

restrictions on subsequent transfers of the land. Id. Two such corporations were

formed for the Neets’aii Gwich’in, and the federal government, pursuant to the

ANCSA, conveyed fee simple title to the land previously constituting the Venetie

Reservation to those corporations as tenants in common. Id.

The Court of Appeals for the Ninth Circuit applied a six-factor balancing

test to determine whether the former-reservation lands constituted a dependent

Indian community, and thus was subject to taxation by the tribe for work

performed in the community by non-Indian members. State of Alaska ex rel.

Yukon Flats Sch. Dist. v. Native Village of Venetie Tribal Gov’t, 101 F.3d 1286,

1294 (9th Cir. 1996). After applying this test, the Ninth Circuit concluded that

the lands were both set aside and superintended by the federal government, and

that the land was therefore Indian country under 18 U.S.C. § 1151(b). Id. at 1302.

The Supreme Court reversed. Rejecting the multi-factor balancing test

employed by the Ninth Circuit to determine whether the land was set aside and

superintended as a dependent Indian community, the Court held that § 1151(b)

“refers to a limited category of Indian lands that are neither reservations nor

allotments, and that satisfy two requirements— first, they must have been set aside

by the Federal Government for the use of the Indians as Indian land; second, they

must be under federal superintendence.” Venetie, 522 U.S. at 527. -17- Applying this test, the Court concluded that neither requirement was met.

As to the set-aside requirement, the ANCSA explicitly “revoked all existing

reservations in Alaska ‘set aside by legislation or by Executive or Secretarial

Order for Native use,’” and so the land was not currently set aside for Native use.

Id. at 532 (quoting 43 U.S.C. § 1618(a)). The land also did not meet the federal

superintendence requirement, as the ANCSA was intended to forestall a “lengthy

wardship or trusteeship,” 43 U.S.C. § 1601(b), and thus ended any

superintendence of the lands. Venetie, 522 U.S. at 533. Accordingly, the Tribe’s

lands did not constitute a dependent Indian community, and hence did not

constitute Indian country, within the meaning of 18 U.S.C. § 1151(b).

Section 1151(b) uses three criteria to define Indian country: (1) it must be

dependent; (2) it must be Indian; and (3) it must be a community. Venetie

provides the criteria for determining whether an area of land satisfies (1) and (2):

(1) the land is “dependent” if it is under federal superintendence, and (2) the land

is “Indian” if it has “been set aside by the Federal Government for the use of the

Indians as Indian land.” Venetie, 522 U.S. at 527. Yet the Venetie Court did not

address the third criteria: determining whether the land in question is a

community. The set-aside and superintendence requirements address only the

dependent and Indian character of the “land in question.”

The “community” requirement determines what area of land constitutes “the

land in question.” That question was not addressed specifically in Venetie other -18- than to accept, without discussion, that it was the entire land formerly constituting

the Neets’aii Gwich’in reservation before it was extinguished. In the present

case, the majority views HRI’s quarter of Section 8 as the “land in question.”

One would therefore expect, if it were following the majority’s analysis, that the

Venetie Court would have narrowly considered whether just the land on which the

school was to be built was a dependent Indian community. But the Court

decidedly did not do so. Instead, the Court in Venetie looked at all of the land

that previously composed the Venetie Reservation— not just the site of the

proposed school— to determine whether that land constituted a dependent Indian

community. Venetie, 522 U.S. at 523 (“In this case, we must decide whether

approximately 1.8 million acres of land in northern Alaska, owned in fee simple

by the Native Village of Venetie Tribal Government pursuant to the [ANCSA], is

‘Indian country.’”) (emphasis added); see also id. at 532 (“The Tribe’s ANCSA

lands do not satisfy either of these requirements.”). Therefore, based solely on

the words “land in question,” which are employed to refer to a broad area of land

encompassing the narrow strip of land directly in dispute in Venetie, the majority

overturns a long history of Tenth Circuit authority that requires a separate

determination of the appropriate community.

I agree with the majority that Venetie abrogated the multi-factor test for

determining whether a given community is a dependent Indian community. See

HRI II, 562 F.3d at 1262 (“Venetie . . . altered the second step of the W atchman -19- inquiry.” (citing HRI I, 198 F.3d at 1248)). However, Venetie simply did not

discuss the first step of the W atchman analysis, namely, how the appropriate

community is to be defined. At best, Venetie endorsed the application of its two-

part requirement of set-aside and superintendence to a broader community of

reference than just the isolated parcel where the dispute is situated. At worst,

Venetie simply does not address the issue of whether a community of reference

should first be determined. However, the one thing that cannot be concluded

from Venetie is that it abrogated the Tenth Circuit’s long-standing community-of-

reference test to determine the relevant community to which the set-aside and

superintendence factors are then applied in order to determine whether the

community is a dependent Indian community.

C . O ther interpretations of V enetie

Today’s decision brings this circuit into conflict with the leading treatise in

the field. According to Professor Cohen’s treatise, the interpretation of § 1151(b)

that focuses solely on the narrow parcel under inquiry “reads the word

‘communities’ out of the statute and increases the possibility of checkerboard

jurisdiction.” Cohen 3.04[2][c][iii], at 194. Furthermore,

[t]he Court’s decision in Venetie explicitly approved factors that appear to allow consideration of an entire community, so that fee lands might be considered part of a dependent Indian community: “[T]he degree of federal ownership of and control over the area, and the extent to which the area was set aside for the use, occupancy, and protection of dependent Indian peoples.”

-20- Id. (quoting Venetie, 522 U.S. at 531 n.7) (emphasis added). Cohen thus adopts

the more natural reading of “dependent Indian communities” and concludes, as

would I, that “patented parcels of land and rights-of-way may also be within

Indian country if they are within a dependent Indian community.” Id. at 195.

The majority cites two cases from our sister circuits that it claims support

its position. Upon closer review, however, these opinions do not address the

community-of-reference question with which we are presented here. First, in

Blunk v. Arizona Department of Transportation, 177 F.3d 879 (9th Cir. 1999), the

Navajo Nation purchased land (the “Navajo Fee Land”), ten miles from the

Navajo reservation, from a private owner, and leased a portion of that land to a

non-Indian who erected billboards on the land. Id. at 880. W hen the state

required the lessee to obtain a permit for his billboards, the lessee filed suit in

federal court seeking a declaratory judgment that state regulation of the billboards

was preempted by federal law and Navajo sovereignty. Id. at 881. In considering

whether the Navajo Fee Land was “Indian country” so that preemption may

preclude the state’s regulation of the land, the Ninth Circuit concluded that

“Venetie controls our decision.” Id. at 883. “The Navajo Fee Land is neither

within the Navajo reservation nor is it an Indian allotment. The Navajo Fee Land

is not a dependent Indian community because the land was purchased in fee by the

Navajo Nation rather than set aside by the Federal Government.” Id. at 883-84.

Additionally, the federal government did not “exercise any . . . level of -21- superintendence over the Navajo Fee Land.” Id. at 884.

Blunk, however, did not consider the threshold question presented here:

namely, whether § 1151(b) requires that the court determine the appropriate

community of reference before applying the Venetie requirements. To the extent

Blunk is relevant to this case, it supports our conclusion, for the Blunk court did

not consider whether the narrow billboard leasehold— what HRI would label the

“land in question”— was a dependent Indian community by itself, but rather

whether the entire Navajo Fee Land, of which Blunk had only leased a portion,

constituted such a community. See Blunk, 177 F.3d at 883 (“The Navajo Fee

Land is not a dependent Indian community . . . .”). The most that could be

gleaned from Blunk is that the Ninth Circuit did not consider whether a threshold

requirement to determine a “community of reference” survived Venetie. At worst

(from HRI’s perspective), Blunk is contrary to its position here in the present

appeal.

In addition, the facts of our case bear little resemblance to those in Blunk.

W hereas 78% of the Church Rock Chapter is owned by the federal government in

trust for either the Navajo Nation or individual Navajos, the tribe purchased the

land in Blunk and owned title to it. In fact, Blunk is consistent with Tenth Circuit

precedent. In a pre-Venetie case, this court concluded, as the Ninth Circuit did in

Blunk, that land purchased and owned by a tribe in fee simple outside the

reservation and not otherwise a part of a dependent Indian community was not -22- Indian country merely by virtue of its tribal ownership, because the land was

neither set-aside nor superintended by the federal government. Buzzard v. Okla.

Tax Comm’n, 992 F.2d 1073, 1076 (10th Cir. 1993). Blunk therefore should not

inform this court’s analysis of a community of land that is predominantly owned

by the federal government rather than the tribe.

In the second case cited by the majority, the Eighth Circuit held that 174.57

acres of land acquired by the United States in trust on behalf of the tribe was a

dependent Indian community because it met both the set-aside and

superintendence requirements. Yankton Sioux Tribe v. Podhradsky, 577 F.3d at

970-71. It does not appear that the parties in that case contested that the entire

acreage at issue constituted the appropriate community of reference, and so the

case provides no guidance on whether such an inquiry is precluded by Venetie.

This case is also inapt because, in this circuit, “‘lands held in trust by the United

States for the Tribes are Indian Country within the meaning of § 1151(a)’” as

informal reservations, and thus need not be analyzed under § 1151(b) at all. HRI

I, 198 F.3d at 1254 (quoting Cheyenne-Arapaho Tribes v. Okla., 618 F.2d 665,

668 (10th Cir. 1980)). The majority therefore has not cited to a single court of

appeals case after Venetie that rejects a community-of-reference approach to

determining the existence of a dependent Indian community.

The majority states that it is “unclear how these courts could have

conducted a proper § 1151(b) analysis without” the community of reference test if -23- that is an essential threshold test. M aj. op. at 73 n.29. But neither case presented

a situation where such a threshold test was required, and thus the holdings of

those cases necessarily say nothing about the propriety of such a test. I cannot

agree with the inference drawn by the majority that, by omitting any mention of a

community-of-reference test, those courts must have precluded the application of

such a test.

The majority also cites to a decision by the New M exico Supreme Court

which does directly address the community-of-reference test and concludes that

the test does not apply. See State v. Frank, 52 P.3d 404, 409 (N.M . 2002) (“In

light of the clear guidelines in the Venetie opinion, we decline to incorporate a

community of reference inquiry into our case law.”). However, that court may

have misinterpreted our community-of-reference test as comprising some of the

balancing factors disapproved by Venetie rather than simply as an effort to

determine the appropriate community of reference in §1151(b) to which to apply

the Venetie test. See id. at 409. Further, the court in Frank did not directly

address the arguments advanced here, including the statutory interpretation and

policy arguments, and that Venetie addressed a factual situation that did not

involve consideration of the appropriate community of reference.

In addition, four years later, the New M exico Supreme Court appeared to

qualify Frank’s holding by recognizing that “the fee land within a § 1151(b)

dependent Indian community is Indian country just like the fee land within a § -24- 1151(a) reservation.” State v. Romero, 142 P.3d 887, 895 (N.M . 2006).

Admittedly, the land at issue in Romero was within a pueblo. Nevertheless, the

court endorsed a larger community approach to determining whether privately-

owned fee land within the pueblo is a dependent Indian community, and it

rejected the argument “that we should look only to the parcels of private fee land,

rather than the whole pueblo.” Id. at 892. The court further noted that

“[c]onsidering the pueblo as a whole is also consistent with congressional intent

in enacting § 1151 because it discourages checkerboarding,” id., which, of course,

is one of the primary arguments for retaining the community-of-reference analysis

in § 1151(b) as introduced in W atchman. Thus, the New M exico Supreme Court

treated all of the land within the pueblo, including privately-held land, as the

“land in question” for purposes of applying the Venetie factors. Id. Accordingly,

the New M exico Supreme Court recognizes that land within a dependent Indian

community can be Indian country under § 1151 even though the specific parcel of

land at issue is privately-owned in fee by non-Indians.

This New M exico case law is therefore not particularly illuminating, both

because “we [are not] bound by a state court’s interpretation of federal law,”

W ilder v. Turner, 490 F.3d 810, 814 (10th Cir. 2007), and because, in light of

Romero, it is not clear that the holding of Frank is still valid even in New M exico

courts.

D. A pplication to Section 8 -25- 1. C om m unity of reference

Therefore, I conclude that a court considering whether a piece of land

constitutes a dependent Indian community under 18 U.S.C. § 1151(b) should

engage in a two-step process. First, when the area proposed as a community is

disputed, the court must determine the appropriate community of reference.

Second, the court must apply the two Venetie factors to that community to

determine whether that community is dependent and Indian. The community will

thus constitute a dependent Indian community only if it was set aside for the use

of the Indians and is under the superintendence of the federal government.

Venetie, 522 U.S. at 531-32.

Determining the appropriate community of reference requires three steps.

First, the court (or agency) must determine whether the proposed community has

reasonably ascertainable boundaries. See Adair, 111 F.3d 770, 774 (10th Cir.

1997); see also Cohen (1982), Ch. 1 § D3c, at 39 (“[T]he statute intended to

include only Indian communities with reasonably defined boundaries . . . .”).

Next, the court must determine whether the land within those boundaries

possesses a reasonable degree of coherence such that the land is logically treated

as a community. Finally, the court should look at whether the uses to which the

land is put and the people inhabiting the land possess a reasonable degree of

coherence. If the area of land has reasonably ascertainable boundaries and the

land possesses a reasonable degree of cohesiveness, then it is an appropriate -26- community for the purpose of determining whether it is a dependent Indian

community under 18 U.S.C. § 1151.

As articulated above, community, as used in § 1151(b), implies context.

W hile Venetie did not address how to determine the appropriate community of

reference, it did make clear that the status of the land within the alleged

community plays an important role in determining whether the land is part of a

dependent Indian community. See Venetie, 522 U.S. at 530 n.5. Therefore, I

initially consider the extent to which the land itself shares common features.

First, the hydrology of the Section 8 land is directly tied into the hydrology

of the entire Church Rock Chapter. Three separate aquifers— the W estwater

Canyon Aquifer, the Cow Springs Aquifer, and the Dakota Sandstone

Aquifer— all run directly underneath the Section 8 land and throughout the

Chapter. As of 1998, fourteen wells from the W estwater Canyon Aquifer— from

which the Chapter residents predominately draw their drinking water— were

within twenty miles of Section 8. The water from those wells meets primary

SDW A standards, and the Branch M anager of the W ater M anagement Branch of

the Navajo Nation Department of W ater Resources characterized the W estwater

Canyon water as “outstanding.” (R. doc. 13b at 252.) This common hydrology

throughout the Chapter makes it difficult for any activities that affect the

groundwater carried out on Section 8 land to be limited to that parcel. (R. doc. 40

at B-3 (“W estwater Canyon . . . has some of the area’s groundwater and most of -27- its uranium deposits.”).) Rather, any pollution into the aquifers would likely

affect much of the Chapter population.

In addition, the land throughout the Church Rock Chapter is connected

based on its history and usage. Cf. Venetie, 522 U.S. at 523-24 (discussing

history of the Neets’aii Gwich’in lands). The land in the Church Rock Chapter is

predominately devoted to livestock grazing; in fact, the portion of HRI-owned

land within Section 8 is surrounded on all four sides by grazing land used by

members of the Chapter. Grazing exists on Section 8 land, pursuant to BIA-

issued grazing permits, in a manner that is integrated with the surrounding areas

of the Chapter. For instance, Grazing Permit Number 7 contiguously covers over

half of Section 8, all of Section 9, and half of Section 16, as well as a portion of

Section 17; Grazing Permit Number 8 also covers part of Section 8, and extends

south into Section 17. This demonstrates that Section 8’s land is in no way

distinct from the lands surrounding it and it is fully integrated in the land’s

history of supporting a livestock-based economy. From the standpoint of the

characteristics of the land, then, Section 8 is part of the community of land in the

Church Rock Chapter.

Although Venetie emphasized the importance of considering the land, it did

not foreclose consideration of other factors for purposes of determining the

community of reference. Indeed, while the word “community” can refer to the

area in which a well-defined group of people lives, the word also refers to the -28- group of people themselves. See W ebster’s Third New International Dictionary

460 (1986) (defining community as “a body of individuals organized into a unit or

manifesting [usually] with awareness some unifying trait”). Consideration of the

people who live within the Church Rock Chapter further shows that the Chapter is

properly considered a single community. Based on the 2000 census, 97.7% of the

2,802 residents of the Chapter are Indian, and most of the remaining sixty-five

residents are married to Navajos. A majority of the residents speak Navajo. In

addition to a common heritage, residents of Church Rock remain closely tied to

the Chapter. 88% of the residents of Church Rock go to the Chapter House at

least monthly, further underscoring the sense of community throughout the

Chapter. Finally, through the Chapter House, the residents receive a variety of

services, including a Head Start program, community health care, housing

assistance, work programs, utility line extensions, and a food distribution center.

Therefore, on the basis of these various indicators, I would conclude that

the Church Rock Chapter, rather than Section 8 itself, is the appropriate

community of reference. This analysis gives effect to the intent of Congress

embodied in § 1151 to avoid checkerboard jurisdiction. See Seymour, 368 U.S. at

358 (stating that Congress intended to avoid “an impractical pattern of

checkerboard jurisdiction . . . by the plain language of § 1151”). “[T]he full

statute was intended to reduce earlier difficulties which had arisen from the

‘checkerboarding’ of land ownership and rights-of-way.” Cohen (1982), Ch. 1 § -29- D3c, at 39. Consideration of whether a community qua community, rather than an

individual tract of land, is Indian country gives meaning to the word

“communities” in the statute, and limits the undesirable outcome where

jurisdiction changes every mile.

The unfortunate consequences of the majority’s opinion are made especially

clear by the facts of this case. HRI seeks to operate a mine on portions of Section

8 and the adjoining Section 17. As Section 17 is trust land, however, it is

unquestionably Indian country under 18 U.S.C. § 1151(a) and subject to EPA’s

jurisdiction for SDW A purposes. Now, under the majority’s opinion, passing the

invisible boundary between Section 17 and 8 transfers jurisdiction from EPA to

NM ED, despite the continuous mining operation and the shared aquifer between

the two parcels (as well as the rest of the Chapter). Section 1151 sought to avoid

such a jurisdiction-by-tractbook approach in the realm of criminal jurisdiction,

and the EPA reasonably adopted the same standard to apply for purposes of

SDW A jurisdiction.

The majority’s extended discussion of the difficulties that would arise in

administering a community-of-reference test overlooks one simple fact:

community-of-reference has been the law in this circuit for the last twenty years.

Outside of some conclusory and unsupported assertions offered by the states in

their amicus brief, the parties have not called to our attention any significant

problems that this test has caused. To the contrary, it is the majority that is -30- casting off into uncharted waters, and while the community-of-reference test has

caused no significant difficulties of which I am aware, the real-world implications

of the majority’s new approach are, quite frankly, unknown. Indeed, the

relatively few cases seen by this court over the last two decades concerning

confusion over the appropriate community of reference is strong circumstantial

evidence that the test in fact works well.

2. T he V enetie factors

Having established Church Rock Chapter as the appropriate community of

reference, I would then apply Venetie’s set-aside and superintendence

requirements to determine if the Chapter constitutes a dependent Indian

community. Upon examination, both requirements are easily met.

In order for a community to satisfy the set-aside requirement, “the Federal

Government must take some action setting apart the land for the use of the

Indians ‘as such.’” Venetie, 522 U.S. at 530 n.5.; id. at 531 n.6 (“The federal set-

aside requirement also reflects the fact that . . . some explicit action by Congress

(or the Executive . . . ) must be taken to create or to recognize Indian country.”).

Here, the government purchased several parcels in the area from the Santa Fe

Pacific Railroad Company in the late 1920s. See HRI II, 562 F.3d at 1254 n.3.

The government placed much of that land in trust for the Navajos and allotted the

rest to individual Navajos. Id. at 1252. The government has set aside 78% of the

land in the Chapter for the use of Indians either as trust land either for the tribe or -31- for individuals in the form of allotments, and BLM owns an additional 10% of the

land, for which grazing permits are granted to Navajos. Considering the Chapter

as the community, then, the Chapter has been set aside by the federal government

for the use of the Navajo.

The Chapter also satisfies the federal superintendence requirement.

“Superintendency over the land requires the active involvement of the federal

government.” Buzzard, 992 F.2d at 1076; see also Venetie, 522 U.S. at 533

(noting that, in past cases that found federal superintendence, “the Federal

Government actively controlled the lands in question, effectively acting as a

guardian for the Indians”). In M cGowan, for example, the Court found

superintendence where the federal government “retains title to the lands which it

permits the Indians to occupy” and where the federal government “has authority

to enact regulations and protective laws respecting this territory.” 302 U.S. at

539; see also United States v. Roberts, 185 F.3d 1125, 1132-33 (10th Cir. 1999);

Buzzard, 992 F.2d at 1076.

In the form of tribal trust land, allotments, or land owned by BLM , the

federal government retains title to 92% of the land in the Chapter, and as title

owner certainly retains superintendence over the land. In addition, EPA found

that DOI supervises natural resources in the Chapter, and BIA supervises land

use, issues grazing permits, “protect[s] Navajo Nation trust lands, natural

resources, and water rights, and administer[s] various trust benefits on behalf” of -32- the Chapter. (R. doc. 44 at 12.) Thus, not only does the federal government

possess “authority to enact regulations and protective laws” in the Chapter, it

frequently acts on that authority. M cGowan, 302 U.S. at 539. Indeed, as the

Navajo Nation noted, “[t]here is no significant difference in the way the United

States interacts with the Church Rock Chapter [and] the way it interacts with

Chapters located in the Navajo Reservation proper,” and reservations are under

federal superintendence. (R. doc. 13a at 13.) The Chapter therefore is under

federal superintendence.

III. C onclusion

In my view, the Church Rock Chapter is the appropriate community of

reference. As the Chapter satisfies both of the criteria identified in Venetie, I

would conclude that HRI’s Section 8 land is within a dependent Indian

community and affirm the panel’s decision.

The lengthy opinions generated by this case and the division within this

court as to the proper interpretation of 18 U.S.C. § 1151(b) attest to the confusion

surrounding this area of the law. This confusion is unfortunate, and the

consequences are likely to be enormous, reintroducing checkerboard jurisdiction

into the southwest on a grand scale and disrupting a field of law that had been

settled for decades. In overturning our community-of-reference test, the majority

today reaches a result not compelled by either Supreme Court or Tenth Circuit -33- precedent. Before all is said and done, this confusion and the serious

consequences generated by today’s opinion may ultimately require resolution by

the Supreme Court.

-34- Hydro Resources, Inc. v. United States Environmental Protection Agency, No. 07-9506

H E N R Y , Circuit Judge, joined by B R ISC O E, Chief Judge, L U C E R O , Circuit Judge, dissenting.

In this case, we must determine who regulates ground water injections

containing radioactive substances on a tract of land surrounded by an Indian

community. The majority holds that because the individual tract at issue was

neither (a) “‘set aside’ by Congress (or the Executive, acting under delegated

authority ‘for the use of the Indians as Indian land[;]’” nor (b) “‘dependent’ in the

sense that it is ‘under federal superintendence,’” it is not part of a dependent

Indian community under 18 U.S.C. § 1151(b). M aj. op. at 4-5 (quoting Alaska v.

Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 527, 531 (1998)). Judge

Ebel’s well-crafted and well-reasoned dissent, which I join, applies the well-

established community-of-reference standard, concludes that the Church Rock

Chapter is the appropriate community of reference, and holds that the land at

issue is within that dependent Indian community. As a result, in the dissent’s

view, the land at issue is subject to federal environmental regulations.

I write separately to underscore the major concerns that I have with the

majority opinion–which I fear undoes decades of settled Indian law based upon

sound principles. First, in my view, it is the majority, not the dissent, that fails to

tie “the jurisdictional determination to the proper hitch: the will of Congress.”

M aj. op. at 46-47. Second, the Supreme Court’s decision in United States v. M azurie, 419 U.S. 544, 551 (1975), which remains good law after Venetie,

supports the community-of-reference approach. Third, Venetie itself, the Supreme

Court case on which the majority grounds its rejection of the community-of-

reference inquiry, did not involve non-Indian fee land surrounded by an Indian

community and thus does not resolve the question before us. Fourth, I am not

convinced that principles regarding the construction of criminal statutes should be

applied here. Finally, and perhaps most importantly, the majority’s approach

conflicts with one of the central purposes of the statute at issue–to avoid

checkerboard jurisdiction.

In 18 U.S.C. § 1151(b), Congress used the word “communities.” A

community is “a social group of any size whose members reside in a specific

locality, share government, and have a common cultural and historic heritage.”

Webster’s New Universal Unabridged Dictionary, at 298 (1989); see also Dissent

at 8 (observing that the term “community” “implies the existence of some setting

within which the property in question is to be evaluated”). Accordingly, in

conducting a community-of-reference analysis that extends beyond the status of a

particular parcel of land, it is the dissent and the panel opinion that are more

firmly rooted in the words used by Congress.

As Judge Ebel also observes, the community-of-reference standard is

supported by the Supreme Court’s decision in M azurie, 419 U.S. at 551. There,

in rejecting the contention that a non-Indian tract was part of “a non-Indian -2- community” under 18 U.S.C. § 1154(b) (emphasis added), the Court considered

the area within the W ind River Reservation that surrounded that tract. 1 See id.

(discussing evidence regarding “the 20-square-mile area roughly centered on [the

non-Indian tract]”). The majority seeks to distinguish M azurie on the grounds

that “[a]lthough the terms ‘non-Indian communities’ and ‘dependent Indian

communities’ both concern ‘communities,’ they deal with markedly different

types of communities.” M aj op. at 59 n.20. I find that distinction unsatisfying.

Surely, when Congress uses the same term in two related statutes, and when the

widely accepted use of that term suggests context, see Dissent at 8-9, we ought to

apply the same definition unless there are particularly persuasive reasons not to

do so. Here, I see no such reasons.

In particular, Venetie does not require us to abandon our established

community-of- reference test with regard to the Section 8 land here at issue.

Venetie did not involve land owned by a non-Indian mining corporation in fee

simple located in the midst of trust land and allotments that constitute “Indian

country” under the other subsections of § 1151. Thus, the Supreme Court’s

1 That statute prohibits the introduction of “any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country.” 18 U.S.C. § 1154(b). It further provides that “[t]he term ‘Indian country’ as used in this section does not include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.” 18 U.S.C. § 1154(c).

-3- decision does not tell us which particular lands we must consider in determining

whether the set-aside and superintendence requirements have been met.

Additionally, I am not persuaded by the majority’s view that our

interpretation of the statute “will apply to all criminal cases arising under §

1151(b).” M aj. op. at 63. The EPA adopted § 1151’s definition of “Indian

country” in the course of administering the Safe Drinking W ater Act. M oreover,

as Judge Ebel reasons, the concept of community should be afforded heightened

importance in the natural resources context. See Dissent at 15. It is that context

that we consider here. I would leave the implications of our holding for

hypothetical criminal prosecutions, if any, for actual cases in which prosecutions

are brought regarding conduct in dependent Indian communities.

Further, I must take exception to the majority’s view that because some

degree of checkerboard jurisdiction is inevitable in the application of § 1151, we

may veer away from that fundamental concern in applying the concept of a

dependent Indian community to the facts of this case. Leading Indian law

scholars have told us that “a central purpose of the 1948 codification [of § 1151]

was to avoid checkerboard jurisdiction.” See Felix S. Cohen, Handbook of

Federal Indian Law § 3.04[2][c][iv], at 194 n.429 (2005 ed.) (citing Seymour v.

Superintendent of Wash. State Penitentiary, 368 U.S. 351, 358 (1962)). I think

we ought to listen to them, particularly when a non-Indian land owner proposes a

mining operation that affects the surrounding community. In that circumstance, it -4- makes good sense to treat Section 8 as part of that community and to require the

mining operation to comply with federal law.

I take little comfort in the majority’s observation that, in the EPA’s

judgment, the aquifer under HRI’s land “‘does not currently serve as a source of

drinking water’” and “‘cannot now and will not in the future serve as a source of

drinking water.’” M aj. op. at 17 (quoting 40 C.F.R. § 146.4(a) & (b)). Even if

that is true in this case, there are other effects of a mining operation that may

greatly impact the surrounding lands. See Dissent at 15 (noting that “[t]he

externalities produced by a mining operation— including pollution, traffic, and the

aesthetic harms created by having a large mining operation nearby— also affect

the surrounding community”).

M oreover, as one scholar has noted, previous mining operations in the area

at issue have had grave consequences: “[t]he tailings from uranium mines have

contaminated air, groundwater, streams and soil on the Navajo reservation. The

wind blew dust from the tailings piles into Navajo homes and water sources.

Holding ponds on the reservation associated with the uranium mines were not

well-maintained. In 1979, a mud dam near Church Rock, New M exico[,] failed,

spilling over 1,100 tons of uranium tailings, and an estimated 100 million gallons

of radioactive wastewater into the Rio Puerco River. This is the largest nuclear

spill in U.S. history, and it caused extensive damage to the Navajo people, their

lands, water resources and the livestock that drank the contaminated water.” See -5- Rebecca Tsosie, “Climate Change, Sustainability, and Globalization: Charting the

Future of Indigenous Environmental Self-Determination,” 4 Envtl. & Energy L. &

Pol’y J. 188, 220 (2009).

As I understand it, under the rule announced by the majority, a uranium

mine located on non-Indian land but surrounded by land that constitutes a

dependent Indian community would not be subject to federal regulation. I fail to

see how such a rule comports with the applicable statute, the case law, or the

federal government’s “distinctive obligation of trust . . . in its dealings with these

dependent and sometimes exploited people.” M orton v. Ruiz, 415 U.S. 199, 236

(1974) (internal quotation marks omitted).

The proper standard for identifying a dependent Indian community under 18

U.S.C. § 1151(b) is a matter of utmost importance to Indian tribes, the states, and

the federal government. I would affirm the EPA’s determination and the panel’s

ruling, and I must dissent from the majority’s contrary conclusion. Additionally,

in light of the disagreement among my colleagues, the continuing uncertainty in

other courts about the proper application of Venetie in checkerboard areas like

those at issue here, and the serious consequences of abandoning our well-

established community-of-reference approach, I agree with Judge Ebel that a

resolution of this issue by the United States Supreme Court is warranted.

-6-