U.S. DEPARTMENT OF JUSTICE,

U.S. ATTORNEY, DISTRICT OF NEW MEXICO,

Albuquerque, N. Mex., April 11, 1979. To: All Indian Tribes and Pueblos in New Mexico; Federal Bureau of Investigation; Bureau of Indian Affairs.

GENTLEMEN: On July 19, 1978, I issued a memorandum concerning law enforcement on the portion of the Navajo nation within New Mexico. This memorandum coordinated law enforcement for the New Mexico portion of the Navajo nation with that of Arizona and Utah.

The memorandum gave the tribe more responsibility over tribal members. It also gave the Bureau of Indian Affairs (BIA) responsibility for investigation of offenses of moderate severity. The Federal Bureau of Investigation (FBI) continued to investigate the most serious offenses and upon request acts to support the tribal police and BIA law enforcement officers.

This arrangement has worked well and because of its success it has found increasing use with regard to the other Indian tribes and pueblos in New Mexico. We believe that this arrangement should be now implemented on a formal basis for all of the tribes and pueblos. A copy of the July 19 memorandum is enclosed and you should consider it effective for all of you.

For those tribes or pueblos that do not have tribal police, the BIA officers will be responsible for all of the functions set forth for BIA officers and tribal offi

cers.

House Bill 132 of the recent New Mexico legislature has now been signed into law. A copy of the new statute is enclosed. This statute will, in cooperation with the New Mexico State Police, permit you to enforce the New Mexico Motor Vehicle Code against non-Indians on the reservation by actions in the local New Mexico magistrate court. Bob Gardenshire of the New Mexico State Police, phone 827-5141 in Santa Fe, should be consulted for the form agreement and requirements you will first need to meet.

The question of whether jurisdiction for acts committed on the reservation will be in the United States courts or New Mexico courts depends on (1) whether the defendant is Indian or non-Indian; (2) whether the victim was an Indian or Indian property and (3) the federal statute involved. The following should be generally kept in mind for offenses, except where a specific statute grants jurisdiction in federal court.

(1) An offense on the reservation by a non-Indian against another nonIndian is a matter for the New Mexico courts;

(2) An offense on the reservation by a non-Indian against an Indian or Indian property is a matter for the United States courts;

(3) An offense on the reservation by an Indian, whether against an Indian or a non-Indian, is a matter for the United States courts or tribal court;

(4) A victimless offense (one which has not focused particularly threatening behavior on the person or property of an Indian) on the reservation by a non-Indian, such as motor vehicle speeding violations, is a matter for the New Mexico courts;

(5) Indian tribal courts do not have criminal jurisdiction over nonIndians.

I am temporarily authorizing the Bureau of Indian Affairs' law enforcement officers to file and follow certain petty misdemeanor complaints before the various federal magistrates. The crimes to which this authorization extends are:

1. Hunting, trapping, or fishing on Indian land-18 U.S.C. 1165

2. Simple assault upon an Indian, except when committed upon a federal officer, and not resulting in serious bodily injury-18 U.S.C. 113(e) and 18 U.S.C. 1152

3. Larceny when the property stolen is Indian property and has a value of $100 or less- 18 U.S.C. 13, 18 U.S.C. 1152, and 40A-16-1 NMSA, 1953 Comp. The above paragraph does not cover matters handled by federal Magistrates in Albuquerque. My office will continue to handle matters in Albuquerque as we have in the past. Please use this new authority carefully and judiciously. Abuse of the new authority will result in its loss to you.

Should you have any problems with the action I am announcing by this letter, please feel free to contact my office.

R. E. THOMPSON, U.S. Attorney.

U.S. DEPARTMENT OF JUSTICE,

U.S. ATTORNEY, DISTRICT OF NEW MEXICO,

Albuquerque, N. Mex., July 19, 1978. Memorandum for: All law enforcement agencies having responsibility and jurisdiction over Federal criminal violations occurring within the Navajo Nation and the Federal District of New Mexico.

From: R. E. Thompson, U.S. Attorney, District of New Mexico.

Subject: Guidelines for presentation of criminal investigations and rendering of prosecutive opinions.

1. General

These guidelines apply to all investigations of Federal criminal matters occurring within that portion of the Navajo Nation within the federal District of New Mexico. No report of a criminal investigation will be accepted for the rendering of a prosecutive determination, except in accordance with these guidelines.

A. Scope. These guidelines apply to all federal criminal violations over which the United States District Court for the District of New Mexico (under present statutory and case Law) would have jurisdiction, i.e., offenses occurring within the confines of the Navajo Reservation, constituting a violation of a specific provision of the United States Code, and where the proposed defendant is an Indian.

B. Return to initiating agency.-In all matters where the United States Attorney declines prosecution, the report of the investigation concerning the offense shall be returned to the originating agency, with a view towards reference to tribal officials for processing. In any case where an Assistant United States Attorney has declined prosecution, the initiating agency is free to consult the United States Attorney regarding the matter.

C. Matters not covered.-All specific federal criminal violations (e.g., drug offenses) not specifically covered by this memorandum shall be investigated and forwarded for prosecutive determination in accordance with existing standards. D. Aggravating circumstances.—“Aggravating circumstances" as used in this memorandum includes, but is not limited to, the following:

1. Repeat offenders;

2. Use of firearms;

3. Pattern of, or connection to, repeated offenses;

4. Proposed defendant a public figure.

2. Navajo Police Department (NPD)

Absent aggravating circumstances, the following matters will be routinely and standardly declined by the United States Attorney, and, accordingly, may be investigated by the NPD for reference to tribal authorities:

A. Alcohol (liquor) violations.-Absent indications of an ongoing commercial enterprise (e.g., manufacturer of alcohol on Reservation) or criminal conspiracy, all federal liquor violations.

B. Larceny, unarmed robbery, housebreaking, burglary, and theft (including auto theft).-All cases involving less than $2,000 in property loss.1

C. Assault. Any assault, except that upon a federal officer, and not resulting in serious bodily harm.

S. Bureau of Indian Affairs Law Enforcement Services (BIA)

The following matters may be investigated and reports forwarded directly to the United States Attorney for prosecutive opinion:

A. Rape (including carnal knowledge) or incest.

B. Larceny, burglary, housebreaking, unarmed robbery, and theft (including auto theft).-All cases in excess of the above NPD guidelines, except those cases requiring scientific investigation.

C. Public assistance violations.-All cases involving welfare fraud or the like, except those requiring accounting expertise in preparation or presentation. (Note: all such cases involving loss to the government of less than

1 Nothing in these guidelines shall be construed to remove or otherwise affect the responsibility of BIA to conduct appropriate civil or administrative investigations into matters over which they have such responsibility (1.e., property loss from government quarters). NPD is encouraged to provide BIA with copies of all reports on such matters and to otherwise cooperate with BIA in such matters.

$1,000 may be routinely declined and a memorandum report confirming such declination forwarded to the United States Attorney via the FBI.)

D. Arson.-All cases except those where death or serious bodily harm results.

4. Federal Bureau of Investigation (FBI)

The FBI shall be primarily responsible for the investigation and presentation to the United States Attorney of the following matters:

A. Murder.

B. Manslaughter.

C. Assault.

All cases involving assault on a federal officer, or assault resulting in serious bodily injury.

D. Arson.

In such cases where death or serious bodily harm results.

E. Bank or Other Armed Robbery.

F. Embezzlement.

G. Kidnapping.

H. Public Assistance Violations.

All cases involving over $1,000 in loss to the government and where accounting expertise is involved in the preparation or presentation of the matter.