F I L E D United States Court of Appeals Tenth Circuit PUBLISH APR 15 1997 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 95-7160 v.
RANDALL D. ADAIR,
Defendant-Appellee.
Appeal from the United States District Court for the E. Dist. of Oklahoma (D.C. No. CR-95-3-S)
Linda A. Epperley, Assistant United States Attorney (John Raley, United States Attorney, with her on the briefs), United States Attorney’s Office, Muskogee, Oklahoma.
Craig P. Bryant, Assistant Federal Public Defender (Stephen J. Knorr, Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Tulsa, Oklahoma.
Before ANDERSON, GODBOLD, * and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Honorable John Cooper Godbold, Circuit Judge for the 11th Circuit Court *
of Appeals, sitting by designation. The Appellee, a Cherokee Indian, was indicted in the United States District
Court for the Eastern District of Oklahoma on four counts of aggravated sexual
abuse in violation of 18 U.S.C. § 2241(a). The offenses were alleged to have
occurred in a “Mutual Help Home” (“Help Home”) built by the Cherokee Nation
Housing Authority (“CNHA”), a Cherokee Nation controlled Oklahoma state
agency which superintends the provision of housing units for needy Indians with
direction and funding from the federal Department of Housing and Urban
Development (“HUD”). The property is listed on the county rolls as exempt from
state tax, though the CNHA makes payments to the state in lieu of taxes.
The land upon which the Help Home stands was originally acquired by the
Appellee’s family as a restricted Indian allotment. In 1987 the family removed
the restrictions and conveyed the title to the CNHA in order for the Help Home to
be built. The Appellee eventually lost the home to his Cherokee Indian ex-wife,
the alleged victim in this case, in a divorce action. The home was thus occupied
by the Appellee’s ex-wife but owned by the CNHA at the time of the alleged
crimes. The homesite is in a rural area known as “Rocky Mountain” in Adair
County, Oklahoma.
The United States premised federal jurisdiction on 18 U.S.C. § 1153,
asserting that Rocky Mountain is a “dependent Indian community” and thus
“Indian country” as defined in 18 U.S.C. § 1151. The district court rejected this
-2- argument, however, holding that the Rocky Mountain area is not a dependent
Indian community and that the area fails even to constitute an appropriate
community of reference for dependent Indian community analysis. Accordingly,
the court dismissed the indictment for lack of jurisdiction. 1
This court has jurisdiction over the United States’ appeal pursuant to 18
U.S.C. § 3731. We affirm the district court’s dismissal on the grounds that the
Rocky Mountain area is neither an appropriate community of reference nor a
dependent Indian community under 18 U.S.C. § 1151(b) and thus not Indian
country.
I. FACTUAL BACKGROUND
Rocky Mountain is a rural area of approximately six to twelve square miles
surrounding the Rocky Mountain School. It is unincorporated and has no definite
geographical boundaries. Rocky Mountain does not appear on maps of general
usage. It lies approximately two to five miles outside the city of Stilwell, the
Adair County seat, and overlaps other unincorporated, sparsely populated rural
areas.
The district court issued an elaborate decision, characterized as an order 1
and outlining the factual background, relevant evidence, historical setting and applicable law. United States v. Adair, 913 F.Supp. 1503, 1505-14 (E.D. Okla. 1995). In its Order, the district court then proceeded to make findings and conclusions. Id. at 1514-17.
-3- The State of Oklahoma maintains the one school in the area, the Rocky
Mountain School, which provides instruction only through the eighth grade. The
Cherokee Nation provides the Rocky Mountain School with supplemental funds
from the federal Bureau of Indian Affairs (“BIA”) based upon its Indian student
population. These funds are used to provide services to Indian students beyond
those services mandated by state law. For example, a portion of the funds are
earmarked for Cherokee language classes. There are three churches in the Rocky
Mountain area. One is a traditional Indian church founded prior to the Civil War,
which conducts services in the Cherokee language. Many of the Cherokee
residents in the area speak Cherokee. Dr. Duane King, Assistant Director of the
National Museum of the American Indian, opined that the Rocky Mountain area
constituted a conservative, traditional Cherokee community.
The eastern region of Oklahoma, which encompasses the Rocky Mountain
area, marks the terminus of the Cherokee Indians’ forced migration from the
southeastern United States and is the location of the original sixteen million acres
given to the Cherokee and the other Civilized Tribes in the form of restricted
allotments in exchange for those lands lost in their original territories. The
federal government placed restrictions upon these allotted lands in order to
protect the Indian allotees against unfair purchases of their property. These
restrictions, however, have been removed over time and now protect only a small
-4- fraction of the land. Today, most all of the land in the Rocky Mountain area is
held restriction-free by Indian as well as non-Indian individuals, though up to
fifteen percent of the land remains restricted. Some of the Indian families in the
area still possess the land originally allotted to their ancestors.
Approximately 400 people live in the area now, about half of whom are
Indian. The Indian residences are scattered among the non-Indian residences.
The Indians living in the Rocky Mountain area do not live in a communal
lifestyle. There is no record of any tribal or local government nor of any
communal gardens or work projects in the area. The area does, however, have an
Indian cemetery and an Indian stomp ground.
With the exception of one small convenience store and some farming
activity, there are no established businesses in Rocky Mountain. There is no
grocery store, bank, restaurant, or post office. People who live in the area shop
and bank in nearby towns such as Stilwell. The nearest hospital or doctor’s office
is located in Stilwell. Stilwell provides employment and serves as the main
economic base for the Rocky Mountain area. Mailing addresses in the area are
either Rural Route #1 or Rural Route #4, Stilwell, Oklahoma.
Electricity is provided to the Rocky Mountain area by Ozark Electric, a
public utility company located in Stilwell and Fayetteville, Arkansas. Water is
provided by individual wells or by Adair County Rural Water District #2, a state
-5- service. Trash in the Rocky Mountain area is disposed of in a sanitary landfill
provided by the Cherokee Nation for Adair County generally. Other than one
highway which was improved by the BIA, the State of Oklahoma and the County
of Adair build and maintain the roads in the area.
People who live in the Rocky Mountain area call the Adair County Sheriff’s
Office for law enforcement assistance, and that office responds to those calls.
However, it refers to the Cherokee Nation Marshall’s Service those cases which
arise in what it perceives to be Indian country. The investigation of the instant
case was thus referred to the Cherokee Marshall because the county officials
perceived the location of the alleged crime, the victim’s Help Home, to be within
Indian country. 2
There are a number of federal social services administered by the Cherokee
Nation for which Cherokee Indians living in the Rocky Mountain area are
eligible. These include an Indian Health Service nutrition program for the
elderly, a BIA substance abuse program, and Head Start. The Cherokee Nation is
involved heavily in the administration of the Help Home program as well. It was
responsible for establishing the CNHA; it appoints the CHNA Commissioners;
and it coordinates the provision of various federal services to the Help Homes,
2 The argument presented to this court by the Appellant is not that the Help Home property is itself Indian country, but that the Rocky Mountain community, in which the Help Home is situated, is Indian country.
-6- such as the establishment of water hook-ups and sewer facilities. These various
services are available to individuals, however, because they are Cherokee Indians
living within the original Cherokee Nation fourteen county area in northeastern
Oklahoma, not because they live in the Rocky Mountain area or because of any
unique status attributed to the Rocky Mountain area.
II. ANALYSIS
In Pittsburgh & Midway Coal Mining Co. v. Watchman, this court
established a two-step process for evaluating an assertion of dependent Indian
community status. 52 F.3d 1531, 1542-45 (10th Cir. 1995). The first step
requires an analysis of whether the area proposed as a dependent Indian
community is appropriate as a community of reference. Id. at 1543-45. Step two
is the application of a four-factor test to the community of reference in order to
determine if that community is indeed a dependent Indian community. Id. at
1545-46.
A. Community of Reference
Step one of the Watchman paradigm, consideration of the subject locale as
a community of reference, itself has at least two analytic ingredients: (1) “the
status of the area in question as a community” and (2) consideration of that locale
-7- or “community of reference within the context of the surrounding area.” 3 Id. at
1543-44. If an area such as Rocky Mountain does not emerge from this threshold
evaluation as a community of reference, it necessarily cannot constitute a
dependent Indian community.
An appropriate starting point is the geographical definition of the area
proposed as a community. Both the government’s disclaimers and description of
the Rocky Mountain area are telling. It concedes that Rocky Mountain is neither
“an established municipality [nor] a formally incorporated community and
possesses no formal or definite boundaries.” Indeed, Rocky Mountain is neither
referenced on maps of general usage nor does it constitute a mailing address. The
government describes Rocky Mountain as “located in Adair County, Oklahoma,
just north of state highway 100 and immediately east of the Cherokee
County/Adair County line.” The government does not propose any objective
indicia, natural or man-made, to describe Rocky Mountain. 4 It proposes no
3 In order to impart the complete prescription for analysis of the area proposed as the community of reference, Watchman assumes establishment of the first ingredient, a community, in its articulation of the second ingredient or organizing principle. See Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1543-44 (10th Cir. 1995). 4 The government does provide a delineation of fifteen inclusive sections in Townships 15 and 16 North, Range 24 East, for what it calls “jurisdictional purposes.” The government, however, then immediately disclaims the limitations of its sectional description of Rocky Mountain by stating that the area “may arguably extend slightly further north, south or east of the description employed.”
-8- landmarks, geologic formations, roads, waterways or other observable objects by
which one could determine if she were inside Rocky Mountain or outside Rocky
Mountain.
While an area need not be an established municipality, an incorporated
political subdivision, or authoritatively and precisely defined by metes and bounds
in order to be an appropriate community of reference in which to test the
existence of a dependent Indian community, the absence of any discernable
boundaries is significant. 5 See Felix S. Cohen, Handbook of Federal Indian Law
39 (Rennard Strickland et al. eds., 1982 ed.) (discussing reasonably definable
boundaries as an implied element of dependent Indian communities). Without
some objective boundaries, consideration of the applicable factors in the
dependent Indian community analysis itself becomes problematic. Furthermore,
the nature and significance of issues which hinge upon the determination of
whether a particular site is within or without Indian country 6 demand some
5 Generally, cases which result in dependent Indian community designation are areas exhibiting reasonably distinct boundaries. See, e.g., United States v. Sandoval, 231 U.S. 28 (1913) (Pueblos of New Mexico); United States v. McGowan, 302 U.S. 535 (1938) (Reno Colony of Nevada); United States v. South Dakota, 665 F.2d 837 (8th Cir. 1981) (Indian housing project in Sisseton, South Dakota). 6 This court has characterized “Indian country classification [as] the benchmark for approaching the allocation of federal, tribal, and state authority with respect to Indians and Indian lands.” Indian Country, U.S.A., Inc. v. Oklahoma Tax Comm., 829 F.2d 967, 973 (10th Cir. 1987).
-9- semblance of boundary objectivity. Finally, the absence of boundary definition,
identity on maps, reference as a mailing address, and a specific governing body
all suggest that Rocky Mountain lacks defining credentials as a community.
In focusing on infrastructure, Watchman defined community 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.” 52 F.3d at 1544. While the Rocky Mountain area contains some
of these aspects of community, it is missing most.
Without a doubt, there exists within even the fluid Rocky Mountain
parameters suggested by the government, Indian and non-Indian cemetaries; an
Indian stomp ground; an elementary school; three churches, one of which is
Indian; a convenience store; and some farms. These items alone, however, are not
the makings of a community. Rocky Mountain lacks the quality and quantity of
activity and institutions which create infrastructure and, in turn, community;
features like a hospital, a doctor, a grocery store, a public utility office, a bank, a
restaurant.
A consideration of the Rocky Mountain area “within the context of the
surrounding area,” as required by Watchman, confirms that Rocky Mountain
defies the meaning of community. See id. at 1543-44. The Rocky Mountain area
-10- is not its own source of infrastructure. Nearby towns, the county, and the state
provide infrastructure, government, essential services, and employment for the
Rocky Mountain area. See Watchman, 52 F.3d at 1544 (citing Blatchford v.
Sullivan, 904 F.2d 542, 548 (10th Cir. 1990), as suggesting inappropriateness of
area as community of reference where infrastructure provided by nearby cities,
county, and state).
To be sure, fifty percent of the population in Rocky Mountain share a
Native American heritage. More specifically, the Cherokee residents share a
common history, culture and non-English language. This assumed cohesiveness
among a significant segment of those residing in the Rocky Mountain area,
however, is not a substitute for and does not overcome the absence of
infrastructure and essential services generated from within. While a community
cannot be expected to originate all or even most of the “needs, necessities, and
wants of modern life,” see Watchman, 52 F.3d at 1544, Rocky Mountain is
remarkable for the dearth of community features. It lacks objective
acknowledgment as a community; there is a paucity of institutions and services;
and there exists a generalized dependency on surrounding areas. While no one of
these characteristics is necessarily determinative, in the aggregate they
demonstrate that Rocky Mountain is not a community and thus cannot be a
-11- community of reference for testing the presence of a dependent Indian community.
B. Dependent Indian Community
Even assuming that the Rocky Mountain area is an appropriate community
of reference, it fails to qualify as a dependent Indian community. Such was the
holding of the court below, a determination to which we now apply de novo
review. See Watchman, 52 F.3d at 1542.
The Watchman decision specified the factors determinative of dependent
Indian community status:
[W]hether a particular geographical area is a dependent Indian community depends on a consideration of several factors. These include: (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 (quoting United States v. South Dakota, 665 F.2d 837,
839 (8th Cir. 1981) (citations omitted)). Consideration of these factors below
indicates that the Rocky Mountain area, even if it were considered an appropriate
community of reference, fails to qualify as a dependent Indian community.
-12- 1. United States’ title to and power over the lands
Title to most of the land in the Rocky Mountain area is owned privately by
individuals. Neither the federal government nor the Cherokee Nation owns any
significant portion of the area beneficially or in trust. No more than fifteen
percent of the land remains as restricted Indian allotment land, which does not at
all translate into federal government ownership, dominion, or jurisdiction over the
Rocky Mountain area generally. There is no record indicating that the federal
government exercises any regulatory or protective legal authority over the Rocky
Mountain area. 7 Thus, the federal government has not retained title to the land in
the Rocky Mountain area, nor has it retained regulatory or protective legal
authority over the area.
7 The Cherokee Nation Marshall, William Ragsdale, has determined that the Rocky Mountain area is a dependent Indian community and thus subject to the law enforcement jurisdiction of the Cherokee Nation. This assertion of jurisdiction by Marshall Ragsdale, however, is just that and does not reflect upon the actual power, authority, and jurisdiction of the federal government or the Cherokee Nation. Marshall Ragsdale’s assertion of authority presents the question rather than the answer in this case. The Appellant also relies upon HUD regulation of Help Homes in the Rocky Mountain area. This federal regulatory control, however, is limited to the isolated properties upon which Help Homes have been built and does not constitute control or authority over the area as a whole. The record indicates there are at least two Help Homes in the Rocky Mountain area.
-13- 2. Nature of the area, relationship of the inhabitants to Indian tribes and federal government, and practice of government toward the area
Rocky Mountain is a sparsely populated, rural area with a roughly equal
mix of Indian and non-Indian residents. It is not owned or controlled by the
federal government or the Cherokee Nation. Cherokee Indian residents in the
Rocky Mountain area are eligible for a variety of social services administered by
the Cherokee Nation. Eligibility arises from these residents’ individual status as
Cherokee Indians, not from the status of the Rocky Mountain area as an
established, protected, or serviced community. See Blatchford, 904 F.2d at 549
(10th Cir. 1990) (holding that Yah-Ta-Hey area of New Mexico was not
dependent Indian community because, among other reasons, federal government’s
relationship with Yah-Ta-Hey was with individual Indians who lived there rather
than with “community qua community”). Non-Indian residents of Rocky
Mountain are obviously not eligible for these services.
The Rocky Mountain area is not dependent upon the Cherokee Nation or
the federal government. Its school is maintained by the state, and the funds
provided to it by the Cherokee Nation are merely supplemental. Although trash
generated in the Rocky Mountain area is deposited in a landfill provided by the
Cherokee Nation, that landfill appears to be intended for Adair County as a
whole. Water is generally supplied by the state. Except for some improvements
made upon one highway by the BIA, the state and the county build and maintain
-14- the roads in Rocky Mountain. Furthermore, although the Adair County Sheriff’s
Office refers cases which it perceives as having arisen in Indian country to the
Cherokee Nation Marshall for investigation, emergency police protection is
provided to the Rocky Mountain area by the sheriff. The area is dependent upon
nearby towns, the county and the state, rather than upon the Cherokee Nation or
the federal government. See Blatchford, 904 F.2d at 548 (basing holding that
Yah-Ta-Hey was not dependent Indian community in part upon finding that Yah-
Ta-Hey was serviced primarily by city, county, and state rather than by federal
government or Navajo Nation).
Unquestionably, Cherokees in the area are eligible for a variety of federal
or tribal services. This phenomenon, however, reflects upon dependency of those
individuals rather than dependency of the Rocky Mountain area. See id. at 549.
Further, while there are a few instances in which federal or Cherokee Nation
funds benefit Rocky Mountain generally, these instances are minimal and are
insufficient to suggest that Rocky Mountain is dependent upon the federal
government or the Cherokee Nation.
3. Cohesiveness of the area
The analysis of the Rocky Mountain area as a community of reference is
pertinent to consideration of its cohesiveness. The want of infrastructure, the
-15- scarcity of economic and institutional activity, the absence of any governing body,
and dependence on surrounding communities belie cohesiveness generally in the
Rocky Mountain area.
Half of the residents, however, share an Indian culture. There are
manifestations of this shared culture in the form of a stomp ground, a cemetery, a
church, supplemental education funds, a trash dump, and the improvement of a
highway by the BIA. These matters, however, have not been shown to provide a
community glue. At best they demonstrate a degree of Indian flavor but fall far
short of reflecting an Indian community. See id. (holding that the fact that
Indians in Yah-Ta-Hey “gave the area a distinctly Indian character [did] not
convert the community into a dependent Indian community”).
4. Area lands set apart for the use, occupancy, and protection of dependent Indian peoples
The Rocky Mountain area has not been set apart for the use, occupancy,
and protection of Indian peoples. The Appellant points to the small percentage of
land which is still held by Indians today as restricted allotments with the attendant
federal protections. The Appellant also points to the Help Homes in the area,
including the situs of the alleged crimes in this case, homes which are set apart
for the occupancy of needy Indian peoples. Most of the land in the Rocky
Mountain area, however, is not encumbered by such restrictions, nor is it set apart
-16- for needy Indian people. It is, rather, owned freely by individuals. Clearly, the
Rocky Mountain area as a whole is not set apart for the use, occupancy, and
protection of dependent Indian peoples.
III. CONCLUSION
Dependent Indian community designation is “intended to afford criminal
jurisdiction over [offenses] committed by Indians in communities which are both
‘Indian’ in character and federally dependent.” United States v. Cook, 922 F.2d
1026, 1031 (2nd Cir. 1991 (citations omitted)). The Rocky Mountain area is not a
community; nor is it Indian in character or federally dependent. It is therefore
neither a dependent Indian community nor Indian country.
Accordingly, federal jurisdiction cannot be premised on 18 U.S.C. §
1151(b), and the district court’s dismissal of the indictment is AFFIRMED.
-17-