                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                     February 7, 2006
                  UNITED STATES COURT OF APPEALS                    Elisabeth A. Shumaker
                                                                       Clerk of Court
                              TENTH CIRCUIT



 UNITED STATES OF AMERICA,

            Plaintiff-Appellee/
            Cross-Appellant,
       v.                                         No. 04-2350, 05-2010
 SANTO ARRIETA,

            Defendant-Appellant/
            Cross-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                      (D.C. NO. 00-411 JC)


David N. Williams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for
Defendant-Appellant.

Douglas E. Couleur, Santa Fe, New Mexico, for Plaintiff-Appellee.


Before O’BRIEN, BALDOCK, and McCONNELL, Circuit Judges.


McCONNELL, Circuit Judge.
      The conviction in this case turns on whether a road maintained by Sante Fe

County, New Mexico, lying between two parcels of land owned by non-Indians

but within the exterior boundaries of the Pojoaque Pueblo, where the Pueblo’s

title has not been extinguished by Congress, is “Indian country” for purpose of the

exercise of federal criminal jurisdiction.

                     I. Factual and Procedural Background

      As a result of an altercation in January 2000, a federal grand jury returned a

two-count indictment against Defendant-Appellant Santo Arrieta 1 for committing

an assault against an Indian that resulted in serious bodily injury in Indian

country, in violation of 18 U.S.C. §§ 113(a)(6) and 1152, and for using a firearm

to facilitate a crime of violence, in violation of 18 U.S.C. § 924(c). The alleged

crimes occurred on Shady Lane, also known as Santa Fe County Road 105 or

Bouquet Lane. Shady Lane is a public road within the exterior boundaries of the

Pojoaque Pueblo. It is surrounded on both sides by non-Indian owned land, and is

maintained as a county road by Sante Fe County. Congress has not extinguished

the Pueblo’s title over the land underlying the road.

      Mr. Arrieta filed a motion to dismiss his criminal indictment for lack of

subject matter jurisdiction, claiming that Shady Lane is not “Indian country” as


      1
       Between the parties, amici, the district court, and our docketing system,
Mr. Arrieta’s name has been spelled in four different ways. We have adopted
what seems to us the most likely spelling.

                                             -2-
defined in 18 U.S.C. § 1151. The district court denied Mr. Arrieta’s motion to

dismiss, finding that Shady Lane is part of the Pojoaque Pueblo dependent Indian

community and that Congress had not extinguished the Pojoaque Pueblo’s title

over Shady Lane. Mr. Arrieta subsequently entered a conditional plea of guilty,

reserving the right to appeal the district court’s denial of his motion to dismiss.

Mr. Arrieta now appeals his conviction on that ground.

      In the plea agreement, the government and Mr. Arrieta agreed on a specific

sentence of 60 months, pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C). At Mr. Arrieta’s sentencing hearing, the district court accepted the

plea agreement, including the specific sentence of 60 months, and acknowledged

that the agreed upon sentence departed from the recommended guideline range for

justifiable reasons. However, after listening to a statement made by the mother of

Mr. Arrieta’s girlfriend, learning from defense counsel that the penalty for

possession of a firearm under state law would be one year, and reviewing the

presentence report, the district court reduced Mr. Arrieta’s sentence to one year

and one day. The government filed a cross-appeal challenging the district court’s

sua sponte departure from the agreed upon sentence contained in the plea

agreement.

      Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the

conviction and REMAND to the district court for resentencing.


                                          -3-
                                    II. Discussion

A.    Subject Matter Jurisdiction

      Mr. Arrieta pleaded guilty to the use of a firearm to commit a violent

felony, in violation of 18 U.S.C. § 924(c). Section 924(c) provides for heightened

statutory minimum sentences for “any person who, during and in relation to any

crime of violence . . . for which the person may be prosecuted in a court of the

United States, uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). The related crime of violence

for which Mr. Arrieta was charged was an assault resulting in serious bodily

injury, in violation of 18 U.S.C. § 113(a)(6). Section 113(a) establishes the crime

of assault “within the . . . territorial jurisdiction of the United States.” Id. §

113(a). Section 113 is extended to Indian country by § 1152, which provides that

“the general laws of the United States as to the punishment of offenses committed

in any place within the sole and exclusive jurisdiction of the United States . . .

shall extend to the Indian country.” Id. § 1152. Federal jurisdiction thus exists

over the crimes for which Mr. Arrieta was charged only if Shady Lane—the situs

of the crime—was Indian country. We review the district court’s conclusion de

novo. See United States v. Roberts, 185 F.3d 1125, 1129 (10th Cir. 1999);




                                           -4-
Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1542 (10th Cir.

1995).

         “Indian country” is defined as

         (a) all land within the limits of any Indian reservation under the
         jurisdiction of the United States Government, notwithstanding the
         issuance of any patent, and, including rights-of-way running through
         the reservation, (b) all dependent Indian communities within the
         borders of the United States whether within the original or
         subsequently acquired territory thereof, and whether within or
         without the limits of a state, and (c) all Indian allotments, the Indian
         titles to which have not been extinguished, including rights-of-way
         running through the same.

18 U.S.C. § 1151. The government does not contend that Shady Lane is within an

Indian reservation or is an Indian allotment, but that it is part of the Pojoaque

Pueblo dependent Indian community, the existence of which was recognized in

United States v. Sandoval, 231 U.S. 28 (1913). Mr. Arrieta contends that the

extinguishment of Pojoaque Pueblo lands since Sandoval requires us to reexamine

whether Shady Lane is a dependent Indian community as that phrase was defined

in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998)

(“Venetie”).

         1.    History of the Pueblo Lands

         Title to the lands on which the Pueblo Indians reside was formally granted

to them by the King of Spain in 1689. Sandoval, 231 U.S. at 39; United States v.

Thompson, 941 F.2d 1074, 1075 (10th Cir. 1991). In 1848, the United States


                                            -5-
acquired the territory of New Mexico from Mexico, including the lands on which

the Pueblo Indians resided. Treaty of Guadalupe Hidalgo, July 4, 1848, 9 Stat.

922; Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 240

(1985). In the Treaty of Guadalupe Hidalgo, the United States agreed to protect

the rights of Indians recognized by prior sovereigns. New Mexico v. Aamodt, 537

F.2d 1102, 1111 (10th Cir. 1976). Following this agreement, Congress granted

federal protection and supervision to the Pueblo Indians and their lands by

extending to the Pueblo the provisions of the Indian Nonintercourse Act, 25

U.S.C. § 177, which prohibits any loss or transfer of title of Indian lands except

by treaty or convention. Act of February 27, 1851, ch. 14, § 7, 9 Stat. 587;

United States ex rel Santa Ana Indian Pueblo v. Univ. of N.M., 731 F.2d 703, 706

(10th Cir. 1984).

      In 1877, however, the Supreme Court held that the Pueblo Indians were not

“Indian tribes” within the meaning of the Nonintercourse Act, and therefore could

alienate their land without congressional approval. United States v. Joseph, 94

U.S. 614, 618 (1876). Although the decision was later overruled, see United

States v. Candelaria, 271 U.S. 432, 441 (1926), approximately 3,000 non-Indians

acquired putative title to Pueblo land between 1880 and 1910. See Mountain

States Tel. & Tel., 472 U.S. at 243. The validity of title transferred to non-

Indians came into question in 1913 when the Court held in Sandoval that the


                                          -6-
Pueblo are a dependent Indian community entitled to the aid and protection of the

federal government and subject to congressional control. Sandoval, 231 U.S. at

47. To settle the status of Pueblo lands, Congress enacted the Pueblo Lands Act

of 1924 (“PLA”). Pueblo Lands Act of June 7, 1924, ch. 331, 43 Stat. 636. The

PLA established the Pueblo Lands Board (“Board”) to resolve conflicting claims

to Pueblo lands. Id. §§ 2, 6, 43 Stat. at 633-37.

         The Board issued patents to quiet title to land in favor of non-Indians who

adversely possessed land and paid taxes on the land from 1889 to 1924 or who

had color of title to the land from 1902 to 1924. Id. § 4, 43 Stat. at 637;

Mountain States Tel. & Tel., 472 U.S. at 244-45. The Pueblos’ rights to such land

were extinguished. PLA § 4, 43 Stat. at 637; Mountain States Tel. & Tel., 472

U.S. at 244. The Pueblo retained title to all lands not patented to non-Indians.

Consequently, pockets of privately owned, non-Indian land lie amidst Pueblo

lands.

         2.    The Status of Shady Lane

         We turn now to the area at issue in this case, Shady Lane. The parties

agree that the Pueblo has always held and continues to hold title to the land

underlying Shady Lane. The parties likewise acknowledge that the lands

surrounding Shady Lane were patented to non-Indians under the PLA, and that the

Pojoaque Pueblo’s title to those lands has been extinguished. The parties’


                                           -7-
disagreement, therefore, is not over who has title to the land, but over whether

Shady Lane can be classified as a “dependent Indian community” when it is

maintained by Santa Fe County as a county road.

      Two requirements must be satisfied for Indian lands to be classified as a

“dependent Indian community.” First, the lands must have been “set aside by the

Federal Government for the use of the Indians as Indian land.” Venetie, 522 U.S.

at 527. This requirement guarantees that the land is actually occupied by an

Indian community. Id. at 531. Second, the lands must be “under federal

superintendence.” Id. at 527. The latter requirement ensures that the community

is dependent on the federal government such that the federal government and the

Indians, rather than the states, exercise primary jurisdiction. Id. at 531. 2

      Shady Lane, as well as other lands on which the Pojoaque Pueblo reside,

was specifically set aside as Indian lands by the federal government. See

Sandoval, 231 U.S. at 39 (explaining that Congress recognized the Pueblos’ title

to their lands by statute and that executive orders reserved additional public

lands). Although the PLA extinguished the Pueblo’s title over some of the land



      2
        The two-part test established by the Supreme Court in Venetie partially
replaces our earlier four-part test, enunciated in Watchman, 52 F.3d at 1545, for
determining whether land constitutes a dependent Indian community. See HRI,
Inc. v. Envtl. Prot. Agency, 198 F.3d 1224, 1248-49 (10th Cir. 2000) (explaining
that the Supreme Court disapproved of the Ninth Circuit’s multi-factor test, which
was similar to the Watchman test, for identifying a dependent Indian community).

                                           -8-
that was originally set aside for them, any land where title was not extinguished

by the Board remained set aside for use by the Pueblo. Thus, the federal set-aside

requirement is satisfied.

      Mr. Arrieta rests his argument on the second requirement, that of federal

superintendence. He contends that the fact that Shady Lane is maintained by

Santa Fe County as a county road precludes our finding that requirement satisfied,

despite the Supreme Court’s previous holding that the Pueblo are subject to

federal superintendence. His argument, however, too narrowly conceives the

concept of federal superintendence. We examine the entire Indian community,

not merely a stretch of road, to ascertain whether the federal set-aside and federal

superintendence requirements are satisfied. See HRI, Inc. v. Envtl. Prot. Agency,

198 F.3d 1224, 1249 (10th Cir. 2000); Watchman, 52 F.3d at 1542-43. Land

owned by an Indian tribe within the exterior boundaries of land granted to the

tribe is necessarily part of the Indian community, even if the state performs some

services and maintenance with respect to the land. Because the Pojoaque Pueblo

possesses title to Shady Lane and Shady Lane is within the exterior boundaries of

the Pojoaque Pueblo, it is part of the Pojoaque Pueblo community. The road, like

the Pueblo, is therefore subject to federal superintendence. See Sandoval, 231

U.S. at 48. Accordingly, we hold that all lands within the exterior boundaries of a

Pueblo land grant, to which the Pueblo hold title, are Indian country within the


                                         -9-
meaning of 18 U.S.C. § 1151. Shady Lane, located within the exterior boundaries

of the Pojoaque Pueblo land grant, is therefore Indian country, and the district

court properly exercised jurisdiction over Mr. Arrieta’s crime.

      3.     Effect of the 2005 Amendments to the Indian Pueblo Lands Act

      While this appeal was pending, Congress amended the Pueblo Lands Act to

clarify federal, state, and Pueblo criminal jurisdiction. See Pub. L. No. 109-133,

119 Stat. 2573 (Dec. 20, 2005). The amendment provides, in relevant part:

      SEC. 20. CRIMINAL JURISDICTION

      (a) IN GENERAL.--Except as otherwise provided by Congress,
      jurisdiction over offenses committed anywhere within the exterior
      boundaries of any grant from a prior sovereign, as confirmed by
      Congress or the Court of Private Land Claims to a Pueblo Indian
      tribe of New Mexico, shall be as provided in this section.

                                      *    *     *

      (c) JURISDICTION OF THE UNITED STATES.--The United States
      has jurisdiction over any offense described in chapter 53 of title 18,
      United States Code, committed by or against an Indian as defined in
      title 25, sections 1301(2) and 1301(4) or any Indian-owned entity, or
      that involves any Indian property or interest.

Id. We ordered the parties to file supplemental briefs on the retroactivity and

implications of this amendment. Both Mr. Arrieta and the government agree that

the amendment does not apply retroactively to confer federal jurisdiction over Mr.

Arrieta’s crime. Because neither party argues the amendment applies to this case,




                                          -10-
and because the amendment is consistent with the result we reach under prior law,

we need not further consider the amendment.

B. Departure from Specific Sentence Contained in Plea Agreement

      Mr. Arrieta concedes that the district court had no authority to depart from

an agreed upon sentence entered into pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C). Where the government agrees to a specific sentence in a

plea agreement, such an agreement “binds the court once the court accepts the

plea agreement.” Fed. R. Crim. P. 11(c)(1)(C); United States v. Veri, 108 F.3d

1311, 1315 (10th Cir. 1997) (holding that when a sentencing court accepts a plea

agreement containing a specific sentence, “it is bound by the agreement and may

not modify it”). The district court accepted Mr. Arrieta’s plea agreement and was

therefore bound by the 60-month sentence specified in the agreement.

Accordingly, we reverse the sentence imposed by the district court and remand

with instructions to impose the specific sentence agreed upon in the plea

agreement.

                                 III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s finding that

federal jurisdiction exists over the assault that occurred on Shady Lane, and thus

AFFIRM the conviction. We REMAND this case to the district court with




                                        -11-
instructions to vacate the sentence and to resentence Mr. Arrieta in accordance

with the specific sentence agreed upon in the plea agreement.




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