HYDRO RESOURCES, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, and Navajo Nation, Intervenor. State of New Mexico; National Mining Association; United Nuclear Corporation; State of Colorado; State of Kansas; State of Utah; State of Wyoming; the Pueblo of Santa Clara; the Pueblo of Sandia; the Pueblo of Isleta; and the Pueblo of Zia, Amici Curiae, 608 F.3d 1131

GORSUCH, Circuit Judge, joined by TACHA, KELLY, O’BRIEN, TYMKOVICH, and HOLMES, Circuit Judges. Everyone agrees that Hydro Resources, Inc. (“HRI”) must obtain a Safe Drinking Water Act (“SDWA” or “the Act”) permit to mine its property. The only question is: from whom?

The Environmental Protection Agency (“EPA” or the “Agency”), which administers the Act, has chosen to delegate its permitting authority in the State of New Mexico to the New Mexico Environment Department (“NMED”), but with one exception: EPA has not delegated its authority to issue permits for mining activities on “Indian lands.” Thinking its land hardly qualified as “Indian land”— HRI owns its property in fee, it pays county real estate taxes, the land is uninhabited, and it is not inside any Indian reservation or otherwise set aside and superintended for Indian use — the company proceeded to apply for, and obtain, a permit from NMED.

Initially, EPA professed no quarrel with this, and it has never questioned NMED’s administration of the Act. But eventually a dispute broke out over the status of HRI’s land and, after years of regulatory wrangling, EPA issued a “final land status determination” expressing its judgment that HRI’s land qualifies as “Indian land.” As a result, EPA ruled, HRI must seek and obtain its SDWA permit from it rather than NMED. How did EPA reach this conclusion?

By regulation, EPA chose to define the term “Indian lands” — the only lands for which it did not cede primary permitting authority to NMED — to be synonymous with “Indian country,” as that term is defined by 18 U.S.C. §

Section 1151, in turn, provides primary federal criminal jurisdiction over certain territories: “Indian reservation!^],” “dependent Indian communities,” and “Indian allotments.” So it is that, for EPA to exercise primary permitting authority in this case, the Agency had to argue that the federal government, rather than the State of New Mexico, possesses primary criminal jurisdiction over HRI’s private property. In this case, EPA took the position that HRI’s land is Indian country and subject to federal jurisdiction because it is part of a “dependent Indian communit[y]” under § 1151(b).

But whatever HRI’s land is, it can’t be that. In Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998), the Supreme Court identified two “requirements” of all “dependent Indian communities” under § 1151(b). First, “the land in question” must be an “Indian community” in the sense that it has been explicitly “set aside” by Congress (or the Executive, acting under delegated authority) “for the use of the Indians as Indian land.” Id. at 527, 531, 118 S.Ct. 948.

Second, “the land in question” must be “dependent” in the sense that it is “under federal superintendence.” Id. at 527, 118 S.Ct. 948. HRI’s land — the land in question in EPA’s final land status determination — is neither of these things. Despite this, EPA argued before a panel of this court that we should cast our gaze beyond the particular land in question. In the Agency’s view, because some sufficiently significant (though unspecified) percentage of neighboring lands — what EPA calls “the community of reference” — is Indian country, HRI’s land must be considered Indian country, too.

In defense of its view, EPA pointed to certain of this circuit’s cases, most pr e-Venetie, suggesting the approach it took. Deeming itself bound by the same authority, a panel of this court upheld EPA’s classification of HRI’s land as Indian country. Hydro Res., Inc. v. U.S. EPA 562 F.3d 1249 (10th Cir.2009) (“HRI II”). HRI responded to all this with a petition for en banc review. The company argued that the “community of reference” approach advanced by EPA and certain of this circuit’s cases is inconsistent with Venetie.

HRI submitted, too, that our cases are in conflict with each other — while some follow EPA’s approach, others after Venetie have abjured the “community of reference” test, as have decisions in our sister circuits. Seeking to sort all this out, we granted HRI’s request for en banc review. Having now heard the case anew, we find ourselves compelled to vacate EPA’s final land status determination. EPA’s

interpretation cannot be reconciled with the Supreme Court’s explanation of § 1151(b)’s plain meaning. Venetie explicitly rejected a Ninth Circuit test composed of the very factors used in the “community of reference” test employed by EPA and certain of our pr e-Venetie cases. Neither is the amorphous “community of reference” test compatible with the history and structure of the statute we are charged to interpret, or with the Supreme Court’s longstanding direction that criminal statutes should be interpreted clearly and precisely to afford fair warning of their reach.

None of this is to say that EPA must tether its SDWA permitting authority to a statute defining the scope of the federal government’s criminal jurisdiction over Indian lands. Had EPA chosen to define its authority under the SDWA in a different way, the result in this case might have been different. But we decide the eases as they come to us. And in this case, heeding the Supreme Court’s commands in Venetie requires us to grant HRI’s petition for review and vacate the Agency’s final land status determination. I The history of this dispute is long and tangled.

Even so, some appreciation of its twists and turns is essential. We begin by examining briefly the history of the land in question (Section I.A), the regulatory scheme governing that land and the parties before us (Section I.B), the parties’ first lawsuit before this court (Section I.C), its subsequent remand to EPA (Section I.D), and the current appeal (Section I.E), all before we turn to address our jurisdiction and standard of review (Section II) and, at last, the merits of this appeal (Section III).

A The land at issue in this case lies in what is commonly known as the “checkerboard” region of northwestern New Mexico. See generally Pittsburg & Midway Coal Min. Co. v. Yazzie, 909 F.2d 1387, 1389-92 (10th Cir.1990). This region abuts the southern and eastern boundaries of the Navajo Reservation originally created by an 1868 treaty between the United States and the Navajos. Id. at 1389. And a checkerboard it is, marked by alternating parcels of land owned by the state, the federal government, the Nava,jo Nation, individual Navajos, and private persons and entities. See id. at 1423 app. A (map

section marked “J”); Appendix. The checkerboard seems to have had its start with the railroad. In the late nineteenth century, the federal government granted certain lands in the region to railroad companies in an effort to induce construction. “These grants typically consisted of alternating one-mile-square parcels on each side of the planned line for the railroad tracks.... ” HRI II, 562 F.3d at 1254 n. 3.

From this, a checkerboard was born, aided and abetted by the fact that other tracts of land in this area, though still formally held in the public domain, were occupied by Navajos, while still others were being rapidly snapped up by white and Mexican settlers. Yazzie, 909 F.2d at 1390. And this was just the start of the complications. As Judge Anderson explained in his thorough history of the area, by the turn of the twentieth century federal officials became concerned that the new settlers were “appropriating the limited water holes for themselves.” Id. at 1390.

So, in an effort to protect the Navajo population, President Theodore Roosevelt signed two executive orders, E.O. 709 and E.O. 744, in 1907 and 1908, respectively. The combined effect of these orders was to add much of the land in this area to the Navajo Reservation. Id. at 1391. At the same time, the President’s orders expressly preserved preexisting private property rights, including the railroad land grants. Thus, “the extension to the Reservation” further complicated the variegated character of the area. Id. at 1391 n. 6. Still more checkerboarding followed.

It seems the government did not intend the area to become a permanent addition to the Reservation. See id. Instead, the plan apparently was to allow Indians then living in the area a brief period to claim and “receive 160-acre allotments in severalty without interference from whites and Mexican stockmen.” Id. at 1390. After that, any unallotted land was to revert from reservation status back to the public domain. See id. And this is exactly what transpired in 1911 by virtue of another executive order, this one issued by President Taft. Id. at 1392.

Since then, land in this area has changed hands many times in still more complicating ways. In 1928, for example, Congress appropriated funds for the purchase of some privately held former railroad tracts in order that they might be held by the federal government for the benefit of the Navajo. HRI II, 562 F.3d at 1254 n. 3. Meanwhile, other parcels now belong to the New Mexico state government or remain in the hands of non-Indians. HRI’s land falls into this final category.

In 1970, the federal government sold 160 acres in the southeast quadrant of “Section 8,” Township 16N, Range 16W, to the United Nuclear Corporation. See Appendix. In turn, United Nuclear later sold the land to HRI. There are no inhabitants on HRI’s land. Except for the brief period from 1907-11, it has not been set aside by Congress for Indians or placed under federal superintendence for their benefit. The remaining three quadrants of

Section 8 land not owned by HRI are still owned in fee by the United States. R. 15c App. XI at para. 3. Other adjacent sections include parcels held in trust for the Navajo by the United States (Sections 9 and 17) and land owned by the State of New Mexico (Section 16). See Appendix.

Section 8 lies within McKinley County, New Mexico. The county seat resides in the city of Gallup, “approximately 11 miles southwest of the

Section 8 land.” HRI II, 562 F.3d at 1254. The state and county exercise jurisdiction over private lands throughout the checkerboard area. So, for example, the State of New Mexico maintains the only road access to

Section 8, State Highway 566, while McKinley County shares responsibility with the federal government for other roads in the vicinity. HRI II, 562 F.3d at 1254. The County provides essential public services to private lands like HRI’s, including fire, police, and emergency services. Id. The Gallup/McKinley County public school system offers public education and school transportation for those in the area. Id. And HRI pays annual property taxes on its land to McKinley County. Id.

Section 8 also falls within the boundaries of the Navajo Church Rock Chapter. The

Chapter is a political and social unit of the Navajo Nation, with its boundaries and membership determined by the Tribe. See id. at 1255. The current boundaries as drawn by the Tribe include tracts owned in fee by the United States, privately held lands, and Navajo Nation lands. Id. At the same time, the Chapter’s boundaries exclude at least one parcel of state land, Red Rock State Park, thus creating a sort of “doughnut hole” in the middle of the Chapter. See Appendix. While most of the land in the

Chapter lies north of Interstate 40, the

Chapter does include a narrow traverse across the Interstate and a small tract on the highway’s south side. See id. The political and social center of the Church Rock

Chapter is the

Chapter House, located in the village of Church Rock, six miles east of Gallup and about six miles south of

Section 8. See id. Much of the membership of the

Chapter lives in close proximity to the

Chapter House, and

Chapter members typically visit the

Chapter House at least once a month for meetings and social activities and services. R. 40 at B-29. At the same time, nearly half of the Chapter’s members are employed in Gallup and so travel there frequently, compared to just 2% who are employed within the Chapter’s boundaries. R. 40 at B-24. The

Chapter recognizes that private lands within its boundaries are subject to state jurisdiction and control, R. 40 at C-16, and the

Chapter provides no infrastructure or services to HRI’s portion of

Section 8, R. 6 at 2. Indeed, a significant portion of the territory within the Chapter, including

Section 8, consists of “rugged mountain ranges, canyons, and highlands” that, according to the Chapter, are “not suitable for community or industrial development.” R. 40 at B-40. B After purchasing its

Section 8 land, HRI sought to mine it for uranium. In preparation, the company obtained various regulatory permits. Because HRI’s proposed mining operations contemplated the use of an underground injection system to extract the ore, SDWA regulations required the company to obtain approval of an underground injection control (“UIC”) plan aimed at mitigating the risk of contamination to potential drinking water sources.

While EPA is responsible for administering the SDWA, Congress anticipated that the states would, at least sometimes, serve as the primary entities responsible for reviewing and granting or denying UIC permits. In the SDWA, Congress told EPA it could “either approve, disapprove, or approve in part and disapprove in part, [each] State’s” application to become the primary UIC permitting authority. 42 U.S.C. § 300h-1(b)(2). The Act then went on to direct EPA to promulgate certain standards that the state UIC regulatory programs would have to meet to achieve this distinction.

See 42 U.S.C. § 300h; 40 C.F.R. § 144.1(e). Exercising these statutory authorities granted to it, EPA some time ago set standards for state UIC programs and approved NMED’s application to serve as the primary UIC permitting authority in the State of New Mexico, except with respect to underground injection wells “on Indian lands.” 40 C.F.R. §§ 147.1600-147.1601. It is here the real regulatory complications begin. How do we know when underground injection wells lie on “Indian lands”?

By regulation, EPA has chosen to define the phrase “Indian lands,” when it appears in SDWA regulations, to mean “Indian country,” as that term is defined by 18 U.S.C. § 1151. See 40 C.F.R. § 144.3. Adopted in 1948, § 1151 is part of the criminal code and circumscribes where the federal government or a tribe, rather than a state, may exercise primary criminal jurisdiction. At the same time, the statute has been used often, as EPA has chosen to use it here, to define the scope of federal authority over civil and regulatory matters.

See Venetie, 522 U.S. at 527, 118 S.Ct. 948; Cohen’s Handbook of Federal Indian Law § 3.04[1] (Nell Jessup Newton et al. eds., 3d ed.2005) (hereinafter “Cohen (2005)”).

Section 1151 defines “Indian country” as encompassing three categories of land: (

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. Having thus defined the scope of “Indian lands” under its SDWA regulations, EPA still faced the question: Who, if not the state, should enjoy primary authority to regulate wells on those lands?

The SDWA entrusts primary UIC permitting authority to EPA but allows the Agency to delegate that authority to tribes, much as it does to states, at least with respect to permit applications “within the area of the Tribal Government’s jurisdiction.” 42 U.S.C. § 300j — 11(b)(1)(B); see also 42 U.S.C. § 300h-1(e). And by regulation, EPA has indicated that a “Tribal Government’s jurisdiction” for these purposes may not extend beyond “Indian country,” as that term is (once again) defined in § 1151.

See, e.g., Navajo Nation; Underground Injection Control (UIC) Program; Primacy Approval, 73 Fed.Reg. 65,556-01, at 65,558-65,560 (Nov. 4, 2008) (“EPA recognizes that 18 U.S.C. 1151 ... generally defines the limit of the area over which a Tribe may demonstrate authority.”). In 1994, EPA chose to exercise this authority to delegate primary UIC permitting authority to the Navajo Nation for lands within the Navajo Reservation, as well as for certain other Navajo allotments and Navajo fee lands. HRI, Inc. v. EPA, 198 F.3d 1224, 1232 (10th Cir.2000) (“HRI I”).

At the same time, however, EPA declined to approve the Tribe’s application to assume primary UIC permitting authority over all privately held fee lands in the checkerboard region where

Section 8 resides. Id. at 1233. It was and is undisputed that these lands do not qualify as part of any Indian reservation within the meaning of § 1151(a), or as Indian allotments within the meaning of § 1151(c). Though the Tribe sought to persuade EPA that the lands nonetheless qualify as “Indian country” because, given social and political affinities in the area, they are part of a larger “dependent Indian community” within the meaning of § 1151(b), EPA rejected this claim.

The Agency explained its view that the Tribe had “not demonstrated that it has jurisdiction” over the lands in question, R. 13b at 239 (emphasis in original), adding that, “[bjefore it could determine if a parcel of land is part of a dependent Indian community (and therefore is Indian country), EPA would need more information about that particular parcel of land.” Id. at 238.

The Agency thus left open at least the hypothetical possibility that there could be “Indian lands” within the checkerboard area over which it, rather than the Navajo Nation, might retain primary UIC regulatory authority — at least until such time as the Tribe could come forward with evidence showing that the “particular parcel of land” in question qualified as Indian country under § 1151(b). C It is perhaps unsurprising that such a complex land ownership scheme, overlaid by such a complex regulatory scheme, might beget equally complex litigation.

And so it did when HRI tried to ascertain which regulatory authority held the UIC permit it needed. HRI knew that the Tribe didn’t have permitting authority over its land, at least not yet. The remaining choices HRI thus confronted were EPA or NMED. Not conceiving of its land as part of a “dependent Indian community” within the meaning of § 1151(b), and absent any EPA decision holding otherwise, HRI requested a UIC permit from NMED. For their part, New Mexico state authorities agreed that HRI’s land wasn’t Indian land, reviewed HRI’s UIC application, and in 1989, approved it.

As part of the permitting process, NMED sought from EPA a mandatory “aquifer exemption” for HRI’s mining activities, because those activities contemplated the introduction of contaminants into an aquifer. Generally speaking, the SDWA prohibits contamination of underground aquifers. See 42 U.S.C. § 300h(b). But because certain aquifers “will never be used as sources of drinking water, ... EPA [has] adopted criteria for exempting [them] from SDWA requirements.” HRI I, 198 F.3d at 1233.

In due course, EPA approved NMED’s requested exemption because, in EPA’s judgment, the aquifer under HRI’s land “does not currently serve as a source of drinking water” and “cannot now and will not in the future serve as a source of drinking water.” 40 C.F.R. § 146.4(a) & (b); see also HRI I, 198 F.3d at 1234; R. 15c App. II at 2 (noting that, even before any mining activity, “water quality at the

Section 8 site is mineralized with naturally-occurring uranium, and uranium decay products ... exceeding U.S. EPA drinking water [standards].”). About this time, however, a jurisdictional dispute arose regarding HRI’s planned mining operations on

Section 8 and on nearby

Section 17. The dispute proved protracted as state, federal, and tribal authorities wrangled over whether HRI’s UIC operations should be regulated by NMED or EPA. See HRI I, 198 F.3d at 1234-35. At some point during this back- and-forth, the Navajo Nation presented what EPA considered to be “substantial arguments to support its claim that

Section 8 is within Indian country.” Id. at 1235 (quoting EPA opinion letter of July 14, 1997). Based on these assertions, EPA deemed

Section 8’s Indian-land status to be “in dispute.” Id. Eventually, in the late 1990s, HRI and NMED sought review of EPA’s assessment in this court. HRI argued that its

Section 8 land wasn’t a “dependent Indian community” within the meaning of § 1151(b), and so primary UIC permitting authority rested with NMED, not EPA or the Tribe. For its part, EPA asked the court to remand the matter because it still hadn’t reached a final decision on the question of

Section 8’s status as Indian country. See HRI I, 198 F.3d at 1236 n. 6 (quoting EPA Brief). EPA explained its delay by pointing to the Supreme Court’s then-recent decision in Venetie, which indicated that to qualify as Indian country under § 1151(b) “the land in question” must be set aside for Indians and federally superintended. Venetie, 522 U.S. at 531, 118 S.Ct. 948. In arriving at this holding, EPA noted, the Supreme Court expressly rejected a “more textured” balancing test adopted by the Ninth Circuit, a test the Ninth Circuit consciously modeled on preexisting Tenth Circuit jurisprudence.

See State of Alaska ex rel. Yukon Flats Sch. Dist. v. Native Vill. of Venetie Tribal Gov’t, 101 F.3d 1286, 1291-93 (9th Cir.1996) (quoting Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1545 (10th Cir.1995)). EPA defended its remand request by stressing that it hadn’t yet had an adequate chance to “develop a record below with the Venetie standard in mind.” HRI I, 198 F.3d at 1236 n. 6 (quoting EPA Brief at 47).

Shortly before Venetie, this court in 1995 developed a two-step, multi-variable balancing test for identifying “dependent Indian communities” under § 1151(b), sometimes called the “Watchman test.” At its “first step,” the test required the identification of an “appropriate community of reference.” Watchman, 52 F.3d at 1543-44. When identifying an appropriate “community of reference,” we said, a court had to consider three factors: (1) “the geographical definition of the area proposed as a community,” United States v.

Adair, 111 F.3d 770, 774 (10th Cir.1997); (2) “the status of the area in question as a community,” Watchman, 52 F.3d at 1543; and (3) “the community of reference within the context of the surrounding area,” id. at 1544.

Within the second factor, the Watchman test called on us to inquire whether there is “an element of cohesiveness ... that can be manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality,” and consider whether the proposed community qualifies 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.” Id. at 1544.

And within the third factor, we considered which public entity or entities “provide infrastructure, government, essential services, and employment” for the community. Adair, 111 F.3d at 775. All of this, however, was just the beginning. Having identified a “community of reference,” our test then sought, at the “second step,” to determine whether that community qualified as a dependent Indian community.

And this, we said, required the balancing of still more factors: “(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 (internal quotation marks and alterations omitted).

Only the first and fourth of these elements, however, added entirely new concepts to the mix; the second and third elements overlapped in significant measure with elements of the antecedent “community of reference” analysis. Even so, Watchman instructed the use of these elements at both steps in the analysis and held that, if both steps were satisfied, all land inside the “community of reference” qualified as “Indian country.” See id.

In HRI I, a panel of this court acknowledged that Venetie altered this legal landscape and that EPA had not yet had a chance to issue a final determination about the status of HRI’s land in light of it. Accordingly, the panel held that EPA’s analysis of HRI’s

Section 8 land wasn’t yet ripe for review and remanded the matter to the Agency for a final determination of the legal status of HRI’s land. HRI I, 198 F.3d at 1237, 1254. After reaching this holding, however, the panel proceeded “[i]n dicta,” State v. Frank, 132 N.M. 544, 52 P.3d 404, 408 (2002), to consider Venetie’s possible impact on this circuit’s Watchman test. On the one hand, the panel acknowledged that “Venetie may require some modification” to our test. 198 F.3d at 1248; see also id. at 1254.

But, on the other hand, the panel also suggested that “nothing in Venetie speaks to the propriety of the first element of that test— determination of the proper community of reference.” Id. at 1248. D With that for guidance, EPA on remand proceeded to invite comments from interested parties. Ultimately, the Agency received comments from the State of New Mexico, McKinley County, various corporations, and more than one hundred Navajo allottees arguing that HRI’s

Section 8 land should not be considered part of a dependent Indian community. At the same time, the Agency received comments from the Navajo Nation, the Navajo Church Rock Chapter, and many others arguing that the land should be considered Indian country. In addition to all this, EPA consulted the Interior Department’s Solicitor’s Office and the Navajo Nation. At the end of its review, the Agency acknowledged that “[sjeveral commenters have suggested that the community-of-reference analysis is no longer intact.” EPA Land Status Determination, R. 44 at 4.

Yet, seeming to take its cue from HRII's intimation that Venetie had not spoken “directly” to Watchman’s threshold community of reference test, EPA concluded that the test survived Venetie — at least in the Tenth Circuit, if not elsewhere. Id. At the same time, the Agency decided that Venetie modified Watchman’s second step, replacing its four-part test with a two-part test focused on how much of the “community of reference” is set aside for Indians and federally superintended.

If some sufficiently high, though unspecified, percentage of the “community of reference” met these requirements, EPA would treat all land within the community of reference as Indian country under § 1151(b). Id. at 11-12. Turning to apply its understanding of § 1151(

b) to the facts of this case, EPA concluded that the Navajo Church Rock

Chapter was “the appropriate community of reference” at Watchman’s first step because the

Chapter functions as a “mini-society.” Id. at 8-9. EPA did not, however, pause to consider whether the appropriate community of reference might be McKinley County, and it considered Gallup as a candidate only briefly in a footnote. Id. at 10 n. 64. Neither did EPA consider whether

Section 8 might be part of no community at all; rather, its analysis seemed to presuppose that every piece of land is part of some community of reference. After having identified what it considered to be the appropriate community of reference, EPA then applied Venetie’s set-aside and federal superintendence requirements to that community. While HRI’s

Section 8 land itself was indisputably neither set aside for Indian use nor federally superintended, EPA reasoned that all of Church Rock

Chapter is Indian country because a sufficiently high percentage of the land within its boundaries are set aside for Indian use and federally superintended. So it is that, by this series of steps, EPA determined that

Section 8 “is within the dependent Indian community of the Church Rock

Chapter and, thus, is Indian country.” Id. at 13. And so it is that EPA required HRI to file a new UIC permit application with the federal government. E Again HRI petitioned this court for review. The company argued, much as it had in HRI I, that Venetie abrogated the Watchman test on which EPA relied in justifying and conducting its threshold “community of reference” inquiry. In HRI’s view, Venetie said that § 1151(

b) requires a court to ask only whether “the land in question” is set aside for Indian use and federally superintended, no more. The panel, considering itself constrained by HRI I’s suggestion that Watchman's community of reference test survived Venetie, rejected HRI’s argument and upheld the agency’s final land status determination. HRI II, 562 F.3d at 1261. Judge Frizzell, sitting by designation, dissented in part. He questioned whether

Section 8 is fairly included within the Church Rock community of reference, given that it is uninhabited and isolated land that the

Chapter has deemed “incapable of sustaining a community.” HRI II, 562 F.3d at 1269 (Frizzell, J., concurring in part and dissenting in part). Judge Frizzell also questioned the community of reference test, noting that “[a]s long as a

Chapter as a whole satisfies whatever percentage of federal set-aside and supervision a federal court deems necessary, tribal law may itself define the boundaries of Indian country outside” reservations. Id. at 1270-71. Through this application “of our community of reference test,” Judge Frizzell emphasized, “we take an unprecedented step. Never before has non-Indian fee land outside the exterior boundaries of a reservation or Pueblo been held to be a dependent Indian community.” Id. at 1270.

After the panel issued its decision, HRI petitioned for rehearing en banc, asking us to tackle the one issue the panel thought it could not — whether Watchman’s community of reference test remains an appropriate part of § 1151(

b) analysis after Venetie. In support of its petition, the company suggested HRI I had opened a split of authority within this circuit: while HRI I suggested that the community of reference survived Venetie, in United States v. Roberts, 185 F.3d 1125 (10th Cir.1999), a previous panel of this court had analyzed a § 1151(

b) claim without reference to Watchman’s community of reference analysis, asking only Venetie’s two questions. See also Frank, 52 P.3d at 408 (noting the same tension in this circuit’s post-Venetie case law). Though reluctant to protract even further this already aged dispute, in light of the arguably inconsistent guidance offered by different panels of this court we granted HRI’s petition for en banc review. II Before we can address the merits of this dispute, we must first attend to antecedent questions about our subject matter jurisdiction (Section II.

A) and standard of review (Section II.B). A Federal courts do not wield plenary jurisdiction over every slight or suit. Instead, our authority is restricted in ways small and large by constitutional and statutory design. Because of this, the task of ensuring ourselves of our own subject matter jurisdiction “is not a mere nicety of legal metaphysics,” but essential to the rule of law in “a free society.... The courts, no less than the political branches of government, must respect the limits of their authority.” U.S. Catholic Conference v.

Abortion Rights Mobilization, Inc., 487 U.S. 72, 77, 108 S.Ct. 2268, 101 L.Ed.2d 69 (1988); see also In re C & M Properties, L.L.C., 563 F.3d 1156, 1161 (10th Cir.2009). Before the panel, EPA challenged HRI’s standing under

Article III of the Constitution, arguing that its final land status determination imposed no constitutionally cognizable injury on HRI. After all, EPA said, that determination “merely implicates which regulator (NMED or EPA) will enforce UIC regulations,” and does nothing to alter the substantive SDWA threshold HRI or anyone else must clear in order to obtain a UIC permit. HRI II, 562 F.3d at 1258 (emphasis in original).

In support of its argument, EPA emphasized New Mexico’s representation that its state UIC permitting process “is more stringent in some respects than the Federal program,” and the absence of any evidence that EPA’s process or permit would involve “more onerous terms than NMED[’s].” EPA’s Merits Brief at 19-20, HRI II, 562 F.3d 1249 (10th Cir.2009). Under

Article III, federal courts have jurisdiction only to decide “Cases” and “Controversies.” U.S. Const, art. Ill, § 2. One “essential and unchanging part of the case-or-controversy requirement” is the concept that the plaintiff must have “standing,” which in turn requires the presence of “three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party has standing to pursue a claim in federal court only if: (1) it “suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (

a) concrete and particularized, and (

b) actual or imminent, not conjectural or hypothetical”; (2) that injury is “fairly traceable to the challenged action of the defendant” rather than some third party not before the court; and (3) that injury is likely to be “redressed by a favorable decision.” Id. at 560-61, 112 S.Ct. 2130 (internal quotation marks, alterations, and citations omitted). Before us, EPA has disputed only the first element — injury in fact. The Agency’s challenge, however, cannot succeed.

Even if, as EPA would apparently have us assume, its UIC permitting process is no stricter than New Mexico’s, the panel opinion in this case correctly explained that “the outlay of funds necessary to secure” a second UIC permit from EPA, on top of the one HRI has already secured from NMED, amply qualifies as a concrete and particularized, actual and imminent injury. HRI II, 562 F.3d at 1259.

As we have previously explained, “the out-of-pocket cost to a business of obeying a new rule of government,] ... whether or not [there may be] pecuniary loss” associated with the new rule, suffices to establish an “injury in fact.” Nat’l Collegiate Athletic Ass’n v. Califano, 622 F.2d 1382, 1386 (10th Cir.1980). EPA’s final land status determination requires HRI to undergo the UIC permit process for a second time — this time with the federal authorities — before it can mine its property.

There is nothing hypothetical or conjectural about that, or about the fact that such a “redo” would impose on HRI some additional administrative costs. Maybe those costs wouldn’t break HRI’s bank, but that’s hardly required to constitute a constitutionally cognizable injury. See id. at 1389 (“Certainly the cost of obeying the regulations constitutes injury.”). B Assured of HRI’s constitutional standing to bring this appeal, before reaching the merits it remains to ask whether and to what degree we are statutorily empowered to review EPA’s decision.

The SDWA authorizes us to review “final actions” taken by EPA in its administration of the statute. 42 U.S.C. § 300j-7(a)(2). The parties before us agree that EPA’s final land status determination qualifies as such a final action, and we can see no basis on which we might disagree. But though the SDWA grants us the power to review EPA’s action in this case, it does not tell us what standard of review we should use in doing so.

When the legislation at hand doesn’t supply a standard of review for us to apply, the Administrative Procedure Act (“APA”) provides the default, filling the gap and telling us, among other things, that we “shall ... hold unlawful and set aside agency action, findings, and conclusions, found to be arbitrary and capricious, an abuse of direction, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). It is this last phrase — “otherwise not in accordance with law” — most directly at issue here. See FCC v. NextWave Pers.

Commc’ns Inc., 537 U.S. 293, 300, 123 S.Ct. 832, 154 L.Ed.2d 863 (2003) (“The Administrative Procedure Act requires federal courts to set aside agency action that is ‘not in accordance with law’ — which means, of course, any law, and not merely those laws that the agency itself is charged with administering.” (citation omitted)). EPA’s final land status determination represents the Agency’s

interpretation of its earlier regulations affording NMED primary authority to regulate UIC wells in New Mexico “except on Indian lands,” 40 C.F.R. §§ 147.1600-147.1601, and then defining “Indian lands” to mean “Indian country” as that term is used in 18 U.S.C. § 1151, id. § 144.3. It is by dint of these regulatory choices that, in the end, EPA faced the purely legal task of interpreting § 1151 in its final land status determination. And it is by dint of this that we must ask whether EPA’s

interpretation of § 1151 is or is not in accordance with the statute. Of course, courts afford considerable deference to agencies interpreting ambiguities in statutes that Congress has delegated to their care, see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), including statutory ambiguities af- fecting the agency’s jurisdiction, see Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 844, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986); see also Miss. Power & Light Co. v. Mississippi ex rel.

Moore, 487 U.S. 354, 381, 108 S.Ct. 2428, 101 L.Ed.2d 322 (1988) (Scalia, J., concurring in the judgment); Teamsters Local Union No. 523 v. NLRB, 590 F.3d 849, 850-51 (10th Cir.2009). Courts do not, however, afford the same deference to an agency’s

interpretation of a statute lying outside the compass of its particular expertise and special charge to administer. See Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137 n. 9, 117 S.Ct. 1953, 138 L.Ed.2d 327 (1997) (no deference given to agency

interpretation of statute, in part, because the agency was not “charged with administering” it); Adams Fruit Co. v. Barrett, 494 U.S. 638, 649, 110 S.Ct. 1384, 108 L.Ed.2d 585 (1990) (“A precondition to deference under Chevron is a congressional delegation of administrative authority.”); see also Crandon v. United States, 494 U.S. 152, 174, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (Scalia, J., concurring in the judgment) (“The law in question, a criminal statute, is not administered by any agency but by the courts.”).

Section 1151 quite clearly does not fall within EPA’s particular expertise or charge to administer. It is not a statute specially involving environmental regulation, but one all and only about the geographic parameters of federal and tribal criminal prosecutorial authority. Even so, we need not decide whether EPA’s

interpretation of the statute is entitled to deference because, throughout the proceedings before the panel and now the en banc court, EPA itself hasn’t claimed any entitlement to deference. In these circumstances, when the agency doesn’t ask for deference to its statutory

interpretation, “we need not resolve the ... issues regarding deference which would be lurking in other circumstances,” Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992), and so may proceed to review EPA’s

interpretation of § 1151(b), as the Agency would have us and the panel did, de novo. III With this much resolved, we finally reach the merits. The dispute here is a purely legal one: Does the Watchman community of reference test remain viable following the Supreme Court’s decision in Venetie? EPA argues it does; HRI says it does not. EPA reads § 1151(b)’s three operative words, “dependent Indian communities,” to require a two-step, multi-factor balancing test.

First, and following Watchman, EPA says we must identify an appropriate “community of reference” by weighing three factors in balance: (1) the geographic definition of the proposed community; (2) the status of the area in question as a community; and (3) the community in the context of the surrounding area.

Within the second of those factors, and again following Watchman, EPA says we must inquire whether there is “cohesiveness that can be manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality,” and consider “whether the community is more than an economic pursuit, and whether it qualifies 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.” Land Status Determination at 5 (internal alterations and quotation marks omitted).

And within the third factor, EPA says, we must also ask “which government or governments provide the infrastructure and essential services for the community.” Id. at 6. In EPA’s view, none of the analysis to this point is affected by Venetie. Having balanced all these competing considerations to identify some “community of reference,” EPA moves to the second Watchman step, which it does view as modified by Venetie.

Before Venetie, the Watchman test sought to determine whether a community of reference qualified as a dependent Indian community by considering four factors: (1) whether and to what degree the United States has retained title to the lands in the community, (2) the nature of the area and the relationship of the inhabitants in the area to Indian tribes and to the federal government, (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.

EPA suggests that, after Venetie, the second and third of these factors are no longer operative, and that the first and fourth essentially track Venetie’s set-aside and federal superintendence requirements. Accordingly, EPA submits, if some sufficiently high (though unspecified) percentage of the community of reference is set aside for Indians and federally superintended, then all the land inside that community should be treated as Indian country regardless whether any particular tract is set aside and superintended. Weighing all the foregoing considerations, EPA argues that HRI’s

Section 8 land, though itself neither set aside nor superintended for Indians, is Indian country nonetheless because it lies within the Church Rock

Chapter community of reference and, by the Agency’s calculation, enough of that land is set aside and superintended for Indians. For its part, HRI submits that Venetie leaves no room for EPA’s reading of § 1151(b). After Venetie, HRI urges, the appropriate § 1151(

b) test asks only two straightforward questions:

(1) Has Congress explicitly set aside the land in question for Indian use?

(2) Does the federal government superintend the land in question? Unless the answer to both questions is “yes,” the land in question is not within a dependent Indian community. HRI stresses that Venetie expressly rejected the Ninth Circuit’s § 1151(

b) test, a test that was consciously patterned on this court’s pre-Venetie jurisprudence and employed the same factors found in the Watchman community of reference test. In addition, HRI submits that the fact-intensive and multi-factored community of reference balancing test leaves the scope of federal criminal jurisdiction impermissibly uncertain and unpredictable, contravening the Supreme Court’s direction in Venetie and its repeated admonitions elsewhere that criminal statutes merit more concrete and precise constructions. We are constrained to agree with HRI. We hold that Watchman’s community of reference test did not survive Venetie and that dependent Indian communities under § 1151(

b) consist only of lands explicitly set aside for Indian use by Congress (or its designee) and federally superintended. We reach this result in light of Venetie’s exposition of the statute’s plain meaning (Section III.A), the statute’s history (Section III.B), and the statute’s structure (Section III.C), and in doing so we bring the law of this circuit in line with the recent decisions of our sister circuits (Section III.D). A In Venetie, the Supreme Court explained that “dependent Indian communities” under § 1151(

b) embrace “a limited category of Indian lands that are neither reservations nor allotments” encompassed by § 1151(

a) and (c), respectively. 522 U.S. at 527, 118 S.Ct. 948. The Court then identified two necessary “requirements” for lands falling into § 1151(b)’s “dependent Indian communities” category, explaining that, much like reservations or allotments, “first, they must have been set aside by the Federal Government for the use of the Indians as Indian land; second, they must be under federal superintendence.” Id. What does it mean for the federal government to set aside land for Indian use and to superintend it?

The Court noted that the set-aside requirement means that there must be “some explicit action by Congress (or the Executive, acting under delegated authority) ... to create or to recognize” the “land in question” as part of a federally recognized and dependent Indian community. 522 U.S. at 531 n. 6, 118 S.Ct. 948. Through

an Act of Congress or some equally explicit executive action, then, the federal government must identify the land as “set apart for the use of the Indians as such.” Id. at 529, 118 S.Ct. 948 (internal quotation marks omitted) (emphasis in original). So, for example, land simply conveyed by Congress to individual Indians or tribes that they are then “free to use ... for non-Indian purposes” or sell as they wish does not qualify. Id. at 533, 118 S.Ct. 948.

While groups of Indians may very well live on such lands in socially and politically discrete communities, they do not live in “Indian country” because the land in question has not been explicitly set aside by Congress for use as a “dependent Indian community.” The superintendence requirement means that the federal government currently must be “actively controlling] the lands in question, effectively acting as a guardian for the Indians.” Id.

This requirement, too, necessarily excludes lands that the government has conveyed without restriction to Indians or others because such lands do not implicate any sense of “guardian[ship],” “wardship[,] or trusteeship.” Id. (internal quotation marks omitted). The set-aside and superintendence requirements, the Court explained, derive from the statute’s plain language — “dependent Indian communities.” The set-aside requirement “ensures that the land in question is occupied by an ‘Indian community.’ ” Id. at 531, 118 S.Ct. 948.

That is, the boundaries of the Indian community are demarcated by and delimited to those lands that are explicitly set aside by legislation or executive action for Indian use. The federal superintendence requirement “guarantees that the Indian community is sufficiently ‘dependent’ on the Federal Government that the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question.” Id. In our case, it is undisputed that HRI’s

Section 8 land hasn’t been explicitly set aside by Congress (or the Executive) for Indian use since the brief period when it was appended to the Navajo Reservation nearly a century ago. See supra

Section I.A. It is likewise undisputed that the land isn’t under federal superintendence, and hasn’t been since the government sold it in 1970. See id. McKinley County and the State of New Mexico provide all essential public services to HRI’s

Section 8 land, including roads, law enforcement, and emergency and school services. The Navajo Church Rock

Chapter recognizes that private lands within its boundaries, like HRI’s, are subject to state jurisdiction and control. And state authorities have long assessed tax on HRI’s property. Under Venetie’s

interpretation of § 1151(b), it would seem unavoidable that the land in question is not Indian country.

Of course, EPA seeks to avoid just this conclusion by expanding the focus from HRI’s particular tract to a wider “community of reference.” According to the Agency, only after ascertaining some appropriate community of reference, by balancing various social, political, and geographic factors, should one then turn to the questions prescribed by the Supreme Court in Venetie, asking whether some significant percentage of the community of reference is set aside for Indian use and federally superintended. , This misreads Venetie.

The Supreme Court did not direct its set-aside and superintendence inquiries toward some abstract “community of reference.” Instead, the Court told us (repeatedly) to ask whether the “land in question” is explicitly set aside for Indian use and federally superintended. See, e.g., Venetie, 522 U.S. at 530, 531, 533, 118 S.Ct. 948. Before us, the only land in question in EPA’s challenged final land status determination is HRI’s segment of

Section 8. And so it is only that land that is subject to, and the focus of, Venetie’s set-aside and superintendence requirements. Tellingly, EPA adopted just this approach to § 1151(

b) before HRI I, when it considered the Navajo Nation’s request for SDWA authority over private lands in the checkerboard area. See supra

Section I.B. EPA rejected the Navajo Nation’s request, explaining that “[bjefore it could determine if a parcel of land is part of a dependent Indian community (and therefore is Indian country), the Agency would need more information about that particular parcel of land.” R. 13b at 238. EPA itself, then, once focused its § 1151(

b) analysis on the “particular parcel of land” in question. And it seemingly came to eschew this approach in favor of the community of reference test only after the panel in HRII suggested in dicta that it should. Of course, EPA now tells us that focusing narrowly on the status of the “land in question” fails to give full vent to the statutory term “communities.” The Agency stresses that § 1151(

b) speaks of “dependent Indian communities,” not parcels of land. And the Agency submits that, while Venetie defined the statutory terms “dependent” and “Indian,” it did not consider “community,” the final statutory term. The dissents offer this same critique. See, e.g., Principal Dissent at 1175-76; Separate Dissent at 1183. This, too, is in error. The Venetie Court did address the term “community,” and did so in light of the statutory terms modifying it.

The Court expressly held that “dependent Indian communities” are composed of those lands Congress (or the Executive, by delegation) has explicitly set aside and superintended for Indian use. As the Court clearly explained, “[t]he federal set-aside requirement ensures that the land in question is occupied by an ‘Indian community.’ ” Venetie, 522 U.S. at 531, 118 S.Ct. 948 (emphasis added).

And the federal superintendence requirement, the Court emphasized, “guarantees that the Indian community is,” in turn, “sufficiently ‘dependent’ on the Federal Government that” it should be subject primarily to federal, not state, jurisdiction. Id. (emphasis added). In adopting the approach it did, moreover, the Court rejected the idea that the boundaries of a federally dependent Indian community should be determined by a sort of judicially administered census study of the nature of “the Indian tribe inhabiting” the area. Id. at 530 n. 5, 118 S.Ct. 948.

The right question, the Court held, is instead whether Congress has taken some action to designate and maintain the land in question for Indian use. It is Congress’s action alone that demarcates the boundaries of a dependent Indian community. Id.; see also United States v. McGowan, 302 U.S. 535, 538, 58 S.Ct. 286, 82 L.Ed. 410 (1938) (“Congress alone has the right to determine the manner in which this country’s guardianship over the Indians shall be carried out.”); cf. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977) (“In determining whether ...

Reservation boundaries were subsequently diminished[,] ... [t]he underlying premise is that congressional intent will control.”). In this way, the Court explained, the federal set-aside and superintendence requirements respect and give meaning to an important feature of our constitutional order — namely, “the fact that because Congress has plenary power over Indian affairs, see U.S. Const. art. I, § 8, cl. 3, some explicit action by Congress (or the Executive, acting under delegated authority) must be taken to create or to recognize Indian country.” Venetie, 522 U.S. at 531 n. 6, 118 S.Ct. 948.

While social or political communities of Indians can exist anywhere in our country, and surely do in a great many places outside Indian country, federally “dependent Indian communities” exist only where and when Congress has said so. Simply put, Venetie held that Congress — not the courts, not the states, not the Indian tribes — gets to say what land is Indian country subject to federal jurisdiction. It is long settled that Congress does so by declaring land to be part of a reservation, or by authorizing its distribution as Indian allotments.

And so it is the case that Congress must take some equally “explicit action ... to create or to recognize” dependent Indian communities. Id. When seeking to identify a § 1151(b) “dependent Indian community,” we must ask whether Congress has explicitly set aside the “land in question” for Indian use and put it under federal superintendence. If Congress hasn’t declared the land set aside'for the establishment of a federally dependent Indian community, we are powerless to do so ourselves.

Applying these principles in Venetie, the Supreme Court held that none of the 1.8 million acres of land granted by Congress in fee to the Neets’aii Gwieh’in Indians in Alaska constituted a § 1151(b) “dependent Indian community.” Id. at 523-24, 118 S.Ct. 948. It was undisputed that these lands were home to what EPA (and the dissents) would consider to be distinct Indian “communities of reference.” After all, robust and well-defined Indian villages occupied the land. See Venetie, 101 F.3d at 1300.

Despite such' social, political, and geographic affinities, the Supreme Court held that a § 1151(b) “dependent Indian community” didn’t exist on any portion whatsoever of the 1.8 million acres of tribal lands because none of that land was congressionally set aside or superintended for Indian use. And that was because, when it passed the Alaska Native Claims Settlement Act (“ANCSA”), Congress deliberately revoked all existing Indian reservations in Alaska “set aside by legislation or by Executive or Secretarial Order for Native use ” and granted tribal corporations fee title to those lands.

Venetie, 522 U.S. at 532, 118 S.Ct. 948 (quoting 43 U.S.C. § 1618(a)). In taking this step, Congress contemplated that the tribes could sell any or all of the lands to non-Indians, and could make use of them as they wished for any purpose, Indian or non-Indian, without federal approval. “In no clearer fashion,” the Supreme Court explained, “could Congress .have departed from its traditional practice of setting aside Indian lands.” Id.

Where there is no congressionally approved set-aside for Indian use, and no federal superintendence, the Court underscored, there can be no dependent Indian community for purposes of § 1151(b). The Watchman community of reference test is inconsistent with this direction. Instead of asking whether Congress (or the Executive, through delegated authority) has taken some explicit action to set aside the land in question and whether the federal government superintends that land, it first conducts a threshold inquiry involving multiple competing factors that have no basis in Venetie or the text or history of § 1151(b).

Only after conducting this inquiry does the community of reference test turn to Venetie’s prescribed set-aside and superintendence questions. And even then the community of reference test asks only about the degree and extent to which some other, larger area is set aside and superintended. In this way, EPA’s test effectively “reduc[es] the federal set-aside and superintendence requirements to mere considerations” — something Venetie expressly warned us against. 522 U.S. at 531 n. 7, 118 S.Ct. 948.

In this same way, the community of reference test also disregards and regularly overrides Congress’s plenary authority in charting the extent of Indian country. Applying the test here, EPA held HRI’s land to be Indian country even though Congress has not explicitly set aside the land for Indian use and the most recent federal action with respect to this land was an executive order in 1911 removing it from Indian country. See supra

Section I.A. It seems to us that, just as in Venetie, there could be “no clearer fashion” in which the federal government could have extinguished the Indian country status of HRI’s land. Venetie, 522 U.S. at 532, 118 S.Ct. 948. By disregarding Congress’s authority, the community of reference test contemplates the possibility that even land never set aside by Congress for Indians can become Indian country simply because of its proximity to other lands that are federally set aside and superintended.

This is so despite the fact that neither EPA nor the principal dissent has pointed us to a single case in the history of the Supreme Court or this court reaching such a result. Consider what happens when a tribe unilaterally redefines its borders to take in just a bit more land (like, say, the state park at the center of the Church Rock Chapter, or strips of private land currently outside but along the edges of the Chapter). See Appendix.

Assuming the social and political characteristics of this expanded community of reference remain more or less constant, land that once wasn’t Indian country becomes Indian country by tribal preference or judicial decree rather than congressional action. Neither does the community of reference test’s disregard for Congress’s authority work only to expand Indian communities. It can operate just as well the other way around — and would surely do so increasingly as time wears on and non-Indian communities encroach on Indian lands.

What would happen, for example, if Gallup grows and dilutes adjacent Indian populations, so that the

Chapter might no longer be said to constitute its own independent “mini-society,” but only part of a greater Gallup “community of reference”? Presuming that this new greater Gallup community of reference wouldn’t include a sufficient percentage of set-aside and superintended land, no land within its limits would constitute “Indian country” under § 1151(b).

Under EPA’s approach, land expressly set aside for Indian use and superintended by the federal government could and would lose its status as Indian country whenever social and political boundaries shift — and all this would happen even in the face of express and contrary congressional direction. Venetie ties the jurisdictional determination to the proper hitch: the will of Congress. The same cannot be said of the community of reference test.

Any remaining question about the vitality of Watchman’s community of reference test is answered by the fact that it would require us to revive the same factors the Supreme Court rejected in Venetie. Before the case reached the Supreme Court, the Ninth Circuit looked to this circuit’s then-governing precedent for guidance in determining whether the land in question before it constituted Indian country under § 1151(b). In fact, the Ninth Circuit.applied a six-factor test that it called “virtually identical” to the second step of our Watchman analysis. Venetie, 101 F.3d at 1294; see id. at 1291-92.

The Supreme Court, of course, proceeded to reject this “textured” balancing test. Venetie, 522 U.S. at 531 n. 7, 118 S.Ct. 948. In particular, the Court criticized reliance on three factors — “the nature of the area,” “the relationship of the area inhabitants to Indian tribes and the federal government,” and “the degree of cohesiveness of the area inhabitants” — as “extremely far removed from” the more concrete set-aside and superintendence requirements. Id. As we have noted previously, many of the same factors appear in both steps of the Watchman analysis. See supra

Section I.C. And the three specific factors the Supreme Court held impermissible in Venetie are among these reappearing factors. Put more pointedly, the factors Venetie expressly rejected are found not just in Watchman’s second step; they also form the backbone of Watchman’s first step: defining the community of reference. For example, considering the “status of the area in question,” as EPA did in its community of reference analysis, Land Status Determination at 5, is no different from looking at the “nature of the area,” a consideration the Supreme Court rejected in Venetie. 522 U.S. at 531 n. 7, 118 S.Ct. 948.

Searching for “the existence of an element of eohesiveness,” as EPA did, Land Status Determination at 5, is indistinguishable from seeking to discern “the degree of cohesiveness of the area inhabitants,” which the Supreme Court held impermissible. Venetie, 522 U.S. at 531 n. 7, 118 S.Ct. 948.

And focusing “on which government or governments provide the infrastructure and essential services for the community,” as EPA would have us do, Land Status Determination at 6, necessarily requires consideration of “the relationship of the area inhabitants to Indian tribes and the federal government,” again something Venetie ruled out-of-bounds. 522 U.S. at 531 n. 7, 118 S.Ct. 948. In EPA’s application of Watchman’s community of reference test, then, the three factors Venetie discredited reemerge, like a phoenix, from their own demise.

And in some ways, the community of reference test favored by EPA is even more problematic than the Ninth Circuit’s approach. At least in the Ninth Circuit’s test the three factors rejected by the Supreme Court were balanced in fair competition against the set-aside and superintendence requirements. In EPA’s application of Watchman’s community of reference test, the rejected factors actually receive a promotion to an outcome-determinative threshold inquiry. The Agency offers us no credible explanation how we might lawfully revive, and then elevate, the very same factors the Supreme Court has expressly rejected.

B The Venetie Court didn’t create its § 1151(

b) test out of whole cloth, but consciously grounded its test in the language and history of the statute. On the latter score, the Court noted that subsection (b)’s use of the phrase “dependent Indian communities” was designed to codify language from the Supreme Court’s decisions in United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913), and United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938).

See Venetie, 522 U.S. at 528-31, 118 S.Ct. 948; see also 18 U.S.C. § 1151 History; Ancillary Laws and Directive Notes (“Definition is based on latest construction of the term by the United States Supreme Court in U.S. v. McGoivan following U.S. v. Sandoval.” (citations omitted)).

For that reason, Venetie examined and relied on these earlier decisions to give content and meaning to subsection (b), recognizing that when a legal concept like this “is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 537 (1947). An examination of these precedents, the soil in which § 1151(

b) was germinated, confirms the implausibility of a community of reference test. Sandoval dealt with Congress’s constitutional authority to include pueblos within “Indian country.” The defendant in that case was prosecuted for bringing alcohol into the Santa Clara Pueblo. He was charged under a federal statute that “ma[de] it a punishable offense to introduce intoxicating liquor into the Indian country,” and another statute specifically providing that all of the Santa Clara Pueblo constituted “Indian country.” Sandoval, 231 U.S. at 36-37, 34 S.Ct. 1.

Faced with these statutes, the Supreme Court was asked to decide whether Congress had the power to deem the pueblos part of Indian country. The Court answered in the affirmative, reasoning that the Indian Commerce Clause of the Constitution and “an unbroken current of judicial decisions have attributed to the United States ... the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders.” Id. at 46, 34 S.Ct. 1 (emphasis added). While not a formal Indian reservation or allotment that might fall into today’s § 1151(

a) and (

c) categories, the Court noted that Congress had “recognized the Pueblos’ titles to their ancestral lands by statute,” executive orders had “reserved additional lands ‘for the [Pueblos’] use and occupancy,’ ” and “Congress had enacted legislation ... ‘in the exercise of the Government’s guardianship over th[e] [Indian] tribes and their affairs’ ... including federal restrictions on the land’s alienation.” Venetie, 522 U.S. at 528, 118 S.Ct. 948 (quoting Sandoval, 231 U.S. at 39, 48, 34 S.Ct. 1) (emphasis added).

In this way, the Court held, Congress had taken deliberate and independent actions to set aside the land in question and guarantee its federal superintendence, thereby rendering it a federally dependent Indian community. McGowan is to the same effect. The case arose when the United States sought the forfeiture of two automobiles used to introduce alcohol into the Reno Indian Colony, which consisted of a single tract of land bought and owned by the federal government as a “permanent settlement” for “needy Indians scattered over the State of Nevada.” McGowan, 302 U.S. at 537, 58 S.Ct. 286.

The question presented to the Court was whether the Colony constituted “Indian country” under the same criminal statute at issue in Sandoval. The Court concluded that the Colony, while neither a reservation nor an allotment, constituted a “dependent Indian communit[y],” id. at 538, 58 S.Ct. 286, because all of its land had been “validly set apart for the use of the Indians” and remained “under the superintendence of the government,” id. at 539, 58 S.Ct. 286.

As Venetie explained, the McGowan Court stressed that “like Indian reservations generally, the colony had been ‘validly set apart’ ” because the “Federal Government had created the colony by purchasing the land with ‘funds appropriated by Congress,’ ” and it was federally superintended because “the Federal Government held the colony’s land in trust for the benefit of the Indians residing there.” Venetie, 522 U.S. at 529, 118 S.Ct. 948 (quoting McGowan, 302 U.S. at 537, 539, 58 S.Ct. 286).

Nothing in Sandoval or McGowan suggests that the metes and bounds of “dependent Indian communities” should be determined by a court’s perceptions about local social, political, or geographic affinities. Rather, in both cases, the Supreme Court identified “dependent Indian communities” based on congressional intent, as expressed in independent statutory declarations.

Both decisions emphasized that “the questions whether, to what extent, and for what time [Indians] shall be recognized and dealt with as dependent tribes requiring the guardianship and protection of the United States are to be determined by Congress, and not by the courts.” Sandoval, 231 U.S. at 46, 34 S.Ct. 1 (emphasis added); see also McGowan, 302 U.S. at 538 & n. 9, 58 S.Ct. 286 (citing Sandoval, 231 U.S. at 46, 34 S.Ct. 1).

And both explained Congress must express its intent to make land a “dependent Indian community” by explicitly setting aside the land for Indian use and authorizing the federal government to superintend the land for that purpose. Cf. Felix S. Cohen’s Handbook of Federal Indian Law, Ch. 1, § 3 at 7 (Robert L. Bennett & Frederick M.

Hart eds., 1971) (reprinting original 1942 edition) (hereinafter “Cohen (1942)”) (summarizing Sandoval as explaining “that the term Indian country as applied to the Pueblos means any lands occupied by ‘distinctly Indian communities’ recognized and treated by the Government as ‘dependent communities’ entitled to its protection”). Venetie, thus, is nothing new under the sun.

It simply reaffirms what the Supreme Court has always held to be the case: the dependent Indian community inquiry centers on whether Congress (or the Executive, by delegation) has taken some explicit action to set aside the land in question for Indian use and whether the land remains federally superintended. As always, we do well to follow the Supreme Court’s guidance — most especially when that guidance has received the blessing of Congress through codification.

Yet, EPA (like the dissents) makes no attempt to grapple with any of § 1151(b)’s considerable history and would instead have us view it in a vacuum, extirpated from the soil in which it grew. Though not dispositive to our analysis, it also merits noting that the historic meaning of the statute recently received further congressional confirmation. Seeking to salve a dispute over the status of privately held lands within New Mexico pueblos, Congress passed the Indian Pueblo Land Act Amendments of 2005, Pub.L. No. 109-133, 119 Stat. 2573, codified at 25 U.S.C. § 331 Note.

The law provides for federal and tribal criminal jurisdiction over offenses committed involving Indians “anywhere within the exterior boundaries of any grant from a prior sovereign, as confirmed by Congress or the Court of Private Land Claims[, an

Article I court established by Congress,] to a Pueblo Indian tribe of New Mexico.” Id. If the community of reference test is correct, this law is surplusage, a waste of everyone’s time and effort in writing, passing, and signing. Under the community of reference test, if and when a pueblo qualifies as an “appropriate community” (and surely that would be most of the time), everything in it, including privately held lands, is automatically subject to federal or tribal jurisdiction under § 1151(b). No additional law was or is or will ever be needed.

The fact that Congress thought otherwise is one more (not inconsiderable) piece of evidence against the community of reference test— as is Congress’s continued focus on boundaries “confirmed by Congress” or its designee, rather than on boundaries set by litigation over the latest social statistics. C The structure of § 1151 further confirms our understanding. The notion that some explicit, congressionally approved action is required to create “Indian country” is hardly foreign to the statute’s design. Subsection (

a) classifies reservations as Indian country, and reservations are traditionally created by and delineated according to boundaries Congress has set or sanctioned. Subsection (

c) recognizes allotments as Indian country, and allotments, too, are a product of congressional action, either directly or through delegation. Subsection (

b) serves as something of a catch-all provision, encompassing “a limited category of Indian lands that are neither reservations nor allotments” but that are still explicitly set aside for Indians by congressional mandate and superintended by the federal government. Venetie, 522 U.S. at 527, 118 S.Ct. 948. In all three of § U51’s subsections, then, the creation of Indian country hinges on some explicit action by Congress (or the Executive, acting under delegated authority). Without some textual indication to think otherwise, it would be anomalous to think that subsection (

b) alone was designed to permit the judiciary to commission or decommission Indian country by means of an atextual, multi-factor balancing test. EPA attempts to overcome this by arguing that § 1151 as a whole is imbued with an “anti-checkerboard” purpose. The Agency worries that looking to the congressionally approved status of each parcel of land will result in a patchwork, with some lands falling under federal jurisdiction while neighboring ones are subject to state jurisdiction. In support of this argument, EPA cites Seymour v.

Superintendent of Washington State Penitentiary, 368 U.S. 351, 358, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962), and the 2005 edition of Cohen’s Handbook of Federal Indian Law. See also Principal Dissent at 1172-73; Separate Dissent at 1183-84. But this argument overstates the statutory case against checkerboarding. In Seymour, the Court simply observed the obvious: subsection (a), by its express terms, includes within the definition of Indian country all lands within the congressionally prescribed boundaries of a reservation, including private fee lands.

The 2005 edition of Cohen’s Handbook adds nothing new to the mix, citing only Seymour. Meanwhile, the 1982 edition of the Handbook on which the principal dissent relies expressly acknowledges that § 1151 “does not eliminate all forms of ‘checkerboarding.’ ” See Felix S. Cohen’s Handbook of Federal Indian Law, Ch. 1, § D3c, at 39 & n.105 (Rennard Strickland et al. eds.1982) (hereinafter “Cohen (1982)”). By indicating in subsection (

a) that all lands within reservations are Indian country, Congress undoubtedly did something to mitigate the potential for checkerboard jurisdiction, as EPA observes. But Congress did not pursue this goal single-mindedly throughout § 1151 at the expense of all other purposes. Indeed, as this court has previously explained, “Congress has authorized checkerboard jurisdiction under its definition of Indian country in 18 U.S.C. § 1151. Although subsection 1151(

a) clarifies that checkerboard titles within an existing reservation do not affect the status of an Indian reservation as reservation, subsections 1151(

b) and (

c) allow checkerboard jurisdiction outside reservation boundaries.” Yazzie, 909 F.2d at 1421-22 (emphasis omitted). In this respect, then, § 1151 is just one more example of the fact that “[n]o legislation pursues its purposes at all costs” without consideration of competing goals and concerns. Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (quoting Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam)); see also John F. Manning, Textualism and the Equity of the Statute, 101 Colmn.

L.Rev. 1, 18 (2001) (“Because statutory details may reflect only what competing groups could agree upon, legislation cannot be expected to pursue its purposes to their logical ends; accordingly, departing from a precise statutory text may do no more than disturb a carefully wrought legislative compromise.”). In truth, Congress has authorized some degree of checkerboard jurisdiction in all three § 1151 categories of Indian country. As EPA stresses, subsection (

a) evinces the strongest effort to minimize checker-boarding by declaring all lands within Indian reservations, including private fee lands, to be Indian country. But even this rule has its exceptions. So, for example, in the Indian liquor laws, Congress has excluded from Indian country any private “fee-patented lands in non-Indian communities,” even if they are located within reservations. 18 U.S.C. §§ 1154(c), 1156; see also United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). Checkerboarding is also an unavoidable byproduct of subsection (c), as Yazzie and Cohen’s Handbook note. See Yazzie, 909 F.2d at 1421-22; Cohen

(1982) Ch. 1, § D3c, at 39 n.105 (“[A]n irregular arrangement of Indian country can exist through the inclusion of off-reservation allotments in its definition.”). By definition, allotments outside reservations are stray plots, pieces of land, parcels. Set aside and superintended for Indians, they are Indian country even while neighboring territory is not. The “checkerboard region” of New Mexico bears witness to all this, with Indian allotments lying cheek by jowl with lands owned by private persons or the state or the federal government. See Appendix.

To be sure, Congress sought to mitigate, to a degree, the checkerboarding created by the allotment system by extending federal jurisdiction over “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(c) (emphasis added). But this hardly eliminates the checkerboard jurisdiction that allotments inevitably create. Indeed, nothing we might do today will ameliorate the checkerboard nature of the area in which HRI’s land lies. The allotment system of subsection (

c) bears the lion’s share of blame for the area’s jurisdictional patchwork, and no

interpretation of subsection (

b) will change that unavoidable fact. While no

interpretation of § 1151(

b) can eliminate the area’s cheekerboarded character, Venetie’s set-aside and superintendence requirements at least ensure that the boundaries of dependent Indian communities will be precisely and predictably defined. Under the community of reference approach favored by EPA, these boundaries would be defined in a more convoluted and less predictable manner. And even after a “community of reference” is defined, its boundaries would likely be irregular, jigsawed, and themselves often hard to discern, as the boundaries of many communities are. One glance at a map of the Church Rock

Chapter confirms as much. See Appendix. The

Chapter includes within its boundaries a narrow jog across Interstate 40 and a small chunk of land south of the highway. And there it includes a long strip of private fee lands along the Chapter’s southeastern boundary, yet (without explanation) not other immediately adjacent private fee lands. At the same time, in the center of the

Chapter lies Red Rock State Park, which the

Chapter excludes from its boundaries, creating a sort of doughnut hole (and raising the perplexing question: to what — noncontiguous—“community of reference” might the park belong?). If that weren’t enough, and seemingly at odds with the exclusion of this particular piece of state-owned property, the

Chapter purports (again without explanation) to include other state-owned lands within its boundaries. Far from curing a checkerboard problem, the upshot of the community of reference test is to invite an odd sort of parquetry all its own. Worse still, the community of reference test creates multiple, unpredictable, and shifting checkerboards — and does so in the context of a criminal statute, in tension with the “basic principle” of due process “that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v.

City of Columbia, 378 U.S. 347, 350, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); cf Flores-Figueroa v. United States, — U.S. -, 129 S.Ct. 1886, 1895, 173 L.Ed.2d 853 (2009) (Scalia, J., concurring in part and concurring in the judgment) (calling expansions of criminal liability based on factors outside the statute’s text “not unlike the practice of Caligula, who reportedly wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people” (internal quotation marks omitted)). The Supreme Court has repeatedly warned us against the “judicial expansion of narr

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