"Community of Reference" Test for Indian Country Applied

Hydro Resources, Inc. v. U.S. EPA, 2009 WL 1027184 (4/17/09) (Published) - The 10th holds the EPA did not err in finding a checkerboard area in N.W. New Mexico is "Indian country." As a result, the uranium mining company has to deal with the EPA, not state authorities, for permission to help spread radioactivity throughout the land. The 10th reached its conclusion, even though there are no actual people who live in the land in question, the state and counties supply plenty of services nearby and non-Indians own the land. The land was within the province of the Church Rock Chapter. The 10th insists its "community of reference" test survived the S. Ct.'s decision in Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998). First, the Church Rock Chapter was a definite geographic area determined by the Navajo Nation. Second, the Chapter area was "cohesive" enough to be a "community. Almost everyone in that area is Navajo, the Chapter's residents primarily engage in traditional self-employment. Third, the area was a separate "mini-society," The Chapter is a distinct political entity. It has a collection of homes organized in camps or housing developments and has a school and churches. Area people avail themselves of the services of the Chapter regularly. It cannot be expected that most of the needs of modern life would be supplied by the community.

And the Chapter was set aside by the federal government for use by Indians. The government bought back the land from a railroad company in trust for the Navajo Nation. And the Chapter is dependent on the federal government such that the government and the Indians exercise primary jurisdiction. The federal government is actively involved, owning 92 % of the land and providing services and protecting the land and its natural resources.

District court judge Frizzell dissented, He did not think the entire Chapter was an appropriate community of reference. Never before, he said, has non-Indian fee land outside the exterior boundaries of a reservation or Pueblo been held to be a dependent Indian community. He expressed concern that Indians could just declare land to be theirs and thus overwhelm non-Indians. The majority responded Congress and the courts could fix that if that were a problem.