* Honorable John Cooper Godbold, Circuit Judge for th e 11th Circuit Court

of Appeals, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 15 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. RANDALL D. ADAIR,

Defendant-Appellee. No. 95-7160

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.-2-

The Appellee, a Cherokee Indian, was indicted in th e 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 off enses were alleged to have occurred in a “Mutual Help Home” (“Help Home”) buil t by the Cherokee Nation Housing Authority (“CNHA”), a Cherokee Nation contr olled Oklahoma state agency which superintends the provision of housing units for needy Indians with direction and funding from the federal Department o f 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 st ate in lieu of taxes. The land upon which the Help Home stands was origin ally acquired by the Appellee’s family as a restricted Indian allotment. In 1987 the family removed the restrictions and conveyed the title to the CNHAin 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 actio n. 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. T he district court rejected this1 The district court issued an elaborate decision, ch aracterized as an order

and outlining the factual background, relevant evid ence, 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 proce eded to make findings and conclusions. Id. at 1514-17. -3- argument, however, holding that the Rocky Mountain area is not a dependent Indian community and that the area fails even to co nstitute an appropriate community of reference for dependent Indian communi ty analysis. Accordingly, the court dismissed the indictment for lack of juri sdiction. 1 This court has jurisdiction over the United States’ appeal pursuant to 18 U.S.C. § 3731. We affirm the district court’s dism issal on the grounds that the Rocky Mountain area is neither an appropriate commu nity 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 sixto twelve square miles surrounding the Rocky Mountain School. It is uninc orporated and has no definite geographical boundaries. Rocky Mountain does not appear on maps of general usage. It lies approximately two to five miles out side the city of Stilwell, the Adair County seat, and overlaps other unincorporate d, sparsely populated rural

areas.-4-

The State of Oklahoma maintains the one school in the area, the Rocky Mountain School, which provides instruction only th rough the eighth grade. The Cherokee Nation provides the Rocky Mountain School with supplemental funds from the federal Bureau of Indian Affairs (“BIA”) b ased upon its Indian student population. These funds are used to provide servic es 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 Ki ng, Assistant Director of the National Museum of the American Indian, opined thatthe Rocky Mountain area constituted a conservative, traditional Cherokee co mmunity. The eastern region of Oklahoma, which encompasses the Rocky Mountain area, marks the terminus of the Cherokee Indians’ f orced migration from the southeastern United States and is the location of t he original sixteen million acres given to the Cherokee and the other Civilized Tribe s in the form of restricted allotments in exchange for those lands lost in thei r original territories. The federal government placed restrictions upon these a llotted lands in order to protect the Indian allotees against unfair purchase s of their property. These restrictions, however, have been removed over time and now protect only a small-5-

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-Indi an individuals, though up to fifteen percent of the land remains restricted. So me of the Indian families in the area still possess the land originally allotted to their ancestors. Approximately 400 people live in the area now, abou t half of whom are Indian. The Indian residences are scattered among the non-Indian residences. The Indians living in the Rocky Mountain area do no t live in a communal lifestyle. There is no record of any tribal or loc al 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 a nd some farming activity, there are no established businesses in Ro cky Mountain. There is no grocery store, bank, restaurant, or post office. P eople who live in the area shop and bank in nearby towns such as Stilwell. The nea rest hospital or doctor’s office is located in Stilwell. Stilwell provides employme nt 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 Faye tteville, Arkansas. Water is provided by individual wells or by Adair County Rur al Water District #2, a state2 The argument presented to this court by the Appella nt is not that the Help

Home property is itself Indian country, but that th e Rocky Mountain community, in which the Help Home is situated, is Indian count ry. -6- service. Trash in the Rocky Mountain area is dispo sed of in a sanitary landfill provided by the Cherokee Nation for Adair County ge nerally. 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 off ice 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. T he investigation of the instant case was thus referred to the Cherokee Marshall bec ause the county officials perceived the location of the alleged crime, the vi ctim’s Help Home, to be within Indian country. 2
There are a number of federal social services admin istered by the Cherokee Nation for which Cherokee Indians living in the Roc ky Mountain area are eligible. These include an Indian Health Service n utrition program for the elderly, a BIA substance abuse program, and Head St art. 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,-7-

such as the establishment of water hook-ups and sew er facilities. These various services are available to individuals, however, bec ause they are Cherokee Indians living within the original Cherokee Nation fourteen county area in northeastern Oklahoma, not because they live in the Rocky Mounta in 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 as sertion 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 a s a dependent Indian community is appropriate as a community of referenc e. Id. at 1543-45. Step two is the application of a four-factor test to the com munity of reference in order to determine if that community is indeed a dependent I ndian 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 a nalytic ingredients: (1) “the status of the area in question as a community” and (2) consideration of that locale3 In order to impart the complete prescription for an alysis 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 fiftee n inclusive sections in Townships 15 and 16 North, Range 24 East, for what it calls “jurisdictional purposes.” The government, however, then immediate ly disclaims the limitations of its sectional description of Rocky Mountain by s tating that the area “may arguably extend slightly further north, south or ea st of the description employed.” -8- or “community of reference within the context of th e surrounding area.” 3 Id. at 1543-44. If an area such as Rocky Mountain does no t emerge from this threshold evaluation as a community of reference, it necessar ily cannot constitute a dependent Indian community. An appropriate starting point is the geographical d efinition of the area proposed as a community. Both the government’s dis claimers and description of the Rocky Mountain area are telling. It concedes t hat Rocky Mountain is neither “an established municipality [nor] a formally incorporated community and possesses no formal or definite boundaries.” Indee d, Rocky Mountain is neither referenced on maps of general usage nor does it con stitute a mailing address. The government describes Rocky Mountain as “located in Adair County, Oklahoma, just north of state highway 100 and immediately eas t of the Cherokee County/Adair County line.” The government does notpropose any objective indicia, natural or man-made, to describe Rocky Mou ntain. 4 It proposes no5 Generally, cases which result in dependent Indian c ommunity 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 proj ect 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- landmarks, geologic formations, roads, waterways orother 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 municipali ty, an incorporated political subdivision, or authoritatively and preci sely defined by metes and bounds in order to be an appropriate community of referenc e in which to test the existence of a dependent Indian community, the abse nce of any discernable boundaries is significant. 5 See Felix S. Cohen, Handbook of Federal Indian Law 39 (Rennard Strickland et al. eds., 1982 ed.) (disc ussing reasonably definable boundaries as an implied element of dependent India n communities). Without some objective boundaries, consideration of the app licable 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 Indi an country 6 demand some-10-

semblance of boundary objectivity. Finally, the ab sence of boundary definition, identity on maps, reference as a mailing address, a nd a specific governing body all suggest that Rocky Mountain lacks defining cred entials as a community. In focusing on infrastructure, Watchman defined community as “a minisociety consisting of personal residences and an in frastructure potentially including religious and cultural institutions, scho ols, emergency services, public utilities, groceries, shops, restaurants, and the o ther 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 ch urches, 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 t he quality and quantity of activity and institutions which create infrastructu re 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-11-

is not its own source of infrastructure. Nearby to wns, the county, and the state provide infrastructure, government, essential servi ces, 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 C herokee residents share a common history, culture and non-English language. This assumed cohesiveness among a significant segment of those residing in th e Rocky Mountain area, however, is not a substitute for and does not overc ome the absence of infrastructure and essential services generated fro m 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. I t lacks objective acknowledgment as a community; there is a paucity o f institutions and services; and there exists a generalized dependency on surrou nding 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-12-

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 ap propriate community of reference, it fails to qualify as a dependent In dian community. Such was the holding of the court below, a determination to whic h we now apply de novo review. See Watchman , 52 F.3d at 1542. The Watchman decision specified the factors determinative of de pendent Indian community status:

[W]hether a particular geographical area is a depen dent Indian community depends on a consideration of several fac tors. These include: (1) whether the United States has retained “title to the lands which it permits the Indians to occupy” and “author ity 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 govern ment, 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 prot ection 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 depen dent Indian community.7 The Cherokee Nation Marshall, William Ragsdale, has determined that the

Rocky Mountain area is a dependent Indian communityand thus subject to the law enforcement jurisdiction of the Cherokee Nation. T his assertion of jurisdiction by Marshall Ragsdale, however, is just that and does n ot reflect upon the actual power, authority, and jurisdiction of the federal g overnment or the Cherokee Nation. Marshall Ragsdale’s assertion of authoritypresents the question rather than the answer in this case. The Appellant also relies upon HUD regulation of He lp Homes in the Rocky Mountain area. This federal regulatory contr ol, however, is limited to the isolated properties upon which Help Homes have beenbuilt 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 Moun tain area. -13- 1. United States’ title to and power over the lands Title to most of the land in the Rocky Mountain are a is owned privately by individuals. Neither the federal government nor th e 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 al lotment land, which does not at all translate into federal government ownership, do minion, or jurisdiction over the Rocky Mountain area generally. There is no record indicating that the federal government exercises any regulatory or protective l egal authority over the Rocky Mountain area. 7Thus, the federal government has not retained ti tle to the land in the Rocky Mountain area, nor has it retained regulatory or protective legal authority over the area.-14-

2. Nature of the area, relationship of the inhabitan ts to Indian tribes and federal government, and practice of government towa rd 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. Cheroke e Indian residents in the Rocky Mountain area are eligible for a variety of s ocial 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 N ew Mexico was not dependent Indian community because, among other rea sons, federal government’s relationship with Yah-Ta-Hey was with individual In dians who lived there rather than with “community qua community”). Non-Indian r esidents of Rocky Mountain are obviously not eligible for these servi ces. The Rocky Mountain area is not dependent upon the C herokee Nation or the federal government. Its school is maintained b y 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 i n a landfill provided by the Cherokee Nation, that landfill appears to be intend ed 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-15-

the roads in Rocky Mountain. Furthermore, althoughthe Adair County Sheriff’s Office refers cases which it perceives as having ar isen in Indian country to the Cherokee Nation Marshall for investigation, emergen cy 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 YahTa-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, refl ects upon dependency of those individuals rather than dependency of the Rocky Mou ntain area. See id. at 549. Further, while there are a few instances in which f ederal or Cherokee Nation funds benefit Rocky Mountain generally, these instances are minimal and are insufficient to suggest that Rocky Mountain is depe ndent upon the federal government or the Cherokee Nation.

3. Cohesiveness of the area The analysis of the Rocky Mountain area as a commun ity of reference is pertinent to consideration of its cohesiveness. Th e want of infrastructure, the-16-

scarcity of economic and institutional activity, th e absence of any governing body, and dependence on surrounding communities belie coh esiveness generally in the Rocky Mountain area. Half of the residents, however, share an Indian cul ture. There are manifestations of this shared culture in the form o f 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 n ot 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 I ndian character [did] not convert the community into a dependent Indian commu nity”).

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 po ints to the small percentage of land which is still held by Indians today as restri cted 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 c ase, 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 r estrictions, nor is it set apart-17-

for needy Indian people. It is, rather, owned free ly by individuals. Clearly, the Rocky Mountain area as a whole is not set apart forthe use, occupancy, and protection of dependent Indian peoples.

III. CONCLUSION Dependent Indian community designation is “intendedto afford criminal jurisdiction over [offenses] committed by Indians i n communities which are both ‘Indian’ in character and federally dependent.” United States v. Cook, 922 F.2d 1026, 1031 (2nd Cir. 1991 (citations omitted)). Th e Rocky Mountain area is not a community; nor is it Indian in character or federal ly dependent. It is therefore neither a dependent Indian community nor Indian cou ntry. Accordingly, federal jurisdiction cannot be premise d on 18 U.S.C. § 1151(b), and the district court’s dismissal of the indictment is AFFIRMED.