                                                                        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-
