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Pueblo of Jemez v. United States

United States District Court, D. New Mexico

October 25, 2018

PUEBLO OF JEMEZ, a federally recognized Indian tribe, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant, and NEW MEXICO GAS COMPANY, Defendant-in-Intervention.

          Thomas E. Luebben, Jr. Law Offices of Thomas E. Luebben Sandia Park, New Mexico -and- Randolph H. Barnhouse Justin J. Solimon Christina S. West Veronique Richardson Dianna Kicking Woman Karl E. Johnson Tierra Marks Barnhouse Keegan Solimon & West LLP Los Ranchos de Albuquerque, New Mexico Attorneys for the Plaintiffs

          Jeffrey Wood Acting Assistant Attorney General Peter K. Dykema Matthew Marinelli Jacqueline M. Leonard Amarveer Brar Kenneth Rooney Kristofor R. Swanson United States Department of Justice Environment & Natural Resources Division Natural Resources Section Washington, D.C. Attorneys for the Defendant United States of America

          Kirk R. Allen Elizabeth Reitzel Miller Stratvert P.A. Albuquerque, New Mexico Attorneys for the Intervenor Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Plaintiff's Motion in Limine to Exclude Certain Evidence, filed August 17, 2018 (Doc. 236)(“MIL 1”). The Court held a hearing on September 14, 2018. The primary issue is whether evidence of land use by other than Plaintiff Pueblo of Jemez after 1848 -- the year when the Pueblo Indians can under United States jurisdiction -- is relevant to whether Jemez Pueblo holds continuing aboriginal title to the Valles Caldera.[1] The Court denies MIL 1, because the United States Court of Appeals for the Tenth Circuit has expressly instructed the Court to consider such evidence. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1165 (10th Cir. 2015)(“Whether the Jemez Pueblo can establish that it exercised its right of aboriginal occupancy to these lands in 1860 and thereafter is a fact question to be established on remand, where it will have the opportunity to present evidence to support its claim.”). Specifically, the Tenth Circuit has instructed the Court to consider evidence necessary to determine whether Jemez Pueblo's use of the Valles Caldera was exclusive as to other Indian Tribes. See 790 F.3d at 1165 (“[T]he ‘exclusive' part of the test mean[s] . . . that in order to establish aboriginal title, a tribe must show that it used and occupied the land to the exclusion of other Indian groups.” (internal quotation marks omitted)(emphasis in original)). The Tenth Circuit also has instructed the Court to consider whether Jemez Pueblo's use of the Valles Caldera suffered interference by others after Congress granted the land to the Baca family in 1860. See 790 F.3d at 1166 (“[I]f there was actually substantial interference by others with these traditional uses before 1946, the Jemez Pueblo will not be able to establish aboriginal title.”). Furthermore, because the expert report authored by Dr. Terence Kehoe contains relevant evidence of multiple Pueblos' use of the Valles Caldera, the Court will not exclude the substance of Dr. Kehoe's report. See Expert Report of Dr. Terence Kehoe at 19-20, filed August 31, 2018 (Doc. 249-1)(“Kehoe Report”). The Court declines to ignore the Tenth Circuit's express directives, will therefore deny MIL 1, and will consider relevant evidence of land use by other than Jemez Pueblo after 1848.

         FACTUAL BACKGROUND

         The following facts are taken in large part from the Opinion of the Court of Appeals for the Tenth Circuit and supplemented with additional facts from the initial pleadings and subsequent briefs of both parties. The Court recognizes that some of these facts may be in dispute, and the Court is not making any findings of fact in this Memorandum Opinion and Order.

         1. The Jemez Pueblo.

         The Tenth Circuit summarized the relevant facts as follows:

The ancestral Jemez people have used and occupied the lands of the Valles Caldera National Preserve and the surrounding areas in the Jemez Mountains of New Mexico since at least 1200 CE.[2] The ancestral Jemez, whose descendants comprise the modern Jemez Pueblo, a federally recognized tribe, have for more than 800 years been the predominant and primary occupants and land users of the Jemez Mountains, including the Valles Caldera National Preserve and the greater Rio Jemez watershed. The Valles Caldera is a dormant crater of a supervolcano located at the center of the Jemez Mountains. The crater rim itself is twenty miles in diameter and is surrounded by four high-mountain valleys and eleven resurgent volcanic domes. The crater rim, high-mountain valleys, and volcanic domes are located within the exterior boundaries of the Valles Caldera National Preserve.
The Jemez Pueblo is made up of the ancestral Jemez populations of Towa-speaking pueblos, including the Pecos Pueblo and the Jemez Pueblo village of Walatowa. The ancestral Jemez Pueblo's aboriginal title allegedly included the Rio Jemez drainage and the Valles Caldera, an area known to the Pueblo Jemez as the “western Jemez homeland.”[3] . . . The western Jemez homeland includes a portion of the land at issue in this case within the Valles Caldera National Preserve and covers an area of more than 1, 100 square miles in and around the Jemez Mountains. It includes the entire Rio Jemez drainage system above Walatowa, the modern Jemez Pueblo village, and sections of the Rio Puerco drainage west of the Jemez Mountains.
The western Jemez homeland contains ancestral Jemez Pueblo villages, sacred areas, and ceremonial shrines where the ancestral Jemez have lived since migrating from the mesa and canyon country to the northwest prior to 1200 CE. The Jemez Pueblo's oral history refers to the area to the northwest and describes the great southern migration to its western Jemez homeland. Archeological investigations in the western homeland have found at least sixty pueblo villages linked with a network of trails and many thousand farmhouse sites, agricultural fields, ceremonial sites, sacred areas, mineral procurement areas, camp sites, and other areas associated with the ancestral Jemez. The ancestral Jemez population in the western homeland has ranged from about 10, 000 to 15, 000 during the prehistoric period and from 7, 000 to 10, 000 during the Spanish colonial period.
The ancestral Jemez maintained an extensive network of agriculture and farming practices in the Valles Caldera and Jemez Mountains. The Valles Caldera contains many important sacred areas and religious sites of the traditional ancestral Jemez culture and the area is greatly valued by the Jemez Pueblo as a spiritual sanctuary. The ceremonial sites and gathering areas are still actively used by the Jemez Pueblo today and are crucial to the continuing survival of traditional Jemez Pueblo culture and religion. Ancient religious pilgrimage trails link Walatowa to sites within the Valles Caldera, including Redondo Peak and sacred springs, and the Jemez Pueblo members continue to make religious pilgrimages to these sites to leave prayer offerings and conduct rituals. The Jemez Pueblo hunt societies make lengthy visits to the Valles Caldera to hunt and conduct religious ceremonies and initiations of new members. Moreover, the mineral and hot springs within the Valles Caldera are used by the Jemez Pueblo's medical societies for healing.
The Jemez continue to rely on the Valles Caldera for many critical resources, as they have done for more than 800 years, including the land and water for livestock; plants and animals on the land for subsistence living; timber for construction and firewood; mountain and forest shelter from the elements; plants, herbs, and roots for medicine; aspen and willow for drums and ritual objects; oak, cherry, and mahogany for bows and ritual objects; rosewood, plums, and reeds for arrows; obsidian and chert for stone tools; minerals for paint and pigments; spring water and evergreens for ceremonial rites; large and small game for ceremonial use; and feathers for ceremonial use and for arrows. The Jemez Pueblo alleges that by this native occupancy and use it has established aboriginal title to the lands at issue in the Valles Caldera National Preserve.

790 F.3d at 1148-49.

         2. Treaty of Guadalupe Hidalgo and the Baca Land Grant.

         In 1848, the United States signed the Treaty of Guadalupe Hidalgo, thereby ending the Mexican-American war and acquiring the territory of New Mexico.[4] See Treaty of Guadalupe Hidalgo, U.S.-Mex., Feb. 2, 1848, art. VIII, 9 Stat. 922, 928. In the Treaty of Guadalupe Hidalgo, the United States agreed to respect pre-existing property rights within the territory. See 9 Stat. at 929-930. Congress thereafter established the office of Surveyor-General for New Mexico and ordered the Surveyor-General “to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico, ” and to make a full report on the validity of the various claims. Act of July 22, 1854, 10 Stat. 308 (“1854 Act”). Congress also ordered a report “in regard to all pueblos existing in the Territory, showing the extent and locality of each, stating the number of inhabitants in the said pueblos, respectively, and the nature of their titles to the land.” 10 Stat. at 308. The report “shall be laid before Congress for such action thereon as may be deemed just and proper, with a view to confirm bona fide grants, and give full effect to the treaty.” 10 Stat. at 308.

         Based in part on this report, Congress passed an act confirming land claims that several pueblos, including Jemez Pueblo, made, thereby relinquishing “all title and claim of the United States to any of said lands.” Pueblo Lands Act of 1924, 43 Stat. 636 (1924), as amended by Act of May 31, 1933, 48 Stat. 108. See Survey of Conditions of the Indians in the United States: Hearings Before the Subcomm. of the S. Comm. on Indian Affairs, 71st Cong. 11, 081-11, 317 (1930) (analyzing reasons for Pueblo Lands Act amendments). The Pueblo Lands Act of 1924 established the Pueblo Lands Board, with authority to determine the exterior boundaries of the Pueblo Indians' lands granted or confirmed by the United States' or any prior sovereign's authority, or acquired by the Pueblos by purchase or other method, and to determine the status of all lands within those boundaries. See Pueblo Lands Act, § 2, 43 Stat. 636 (1924). Neither the 1854 Act nor the Pueblo Lands Act of 1924 include the Valles Caldera among the lands confirmed to belong to Jemez Pueblo.

         The lands that encompass the Valles Caldera came to the Surveyor-General's attention after his report to Congress that the heirs of Luis Maria Baca (“Baca heirs”) and the inhabitants of Las Vegas, New Mexico both had valid but conflicting claims to a large tract of land in the vicinity of Las Vegas. See Lane v. Watts, 234 U.S. 525, 526-27 (1914); Maese v. Hermann, 183 U.S. 572, 578 (1902); Shaw v. Kellogg, 170 U.S. 312, 314 (1898). Congress settled this conflict by allowing the inhabitants of Las Vegas to retain title over the contested land and passing a statute authorizing the Baca heirs “to select instead of the land claimed by them, an equal quantity of vacant land, not mineral, in the Territory of New Mexico, to be located by them in square bodies, not exceeding five in number.” Act of June 21, 1860, 12 Stat. 71, 72 (“1860 Act”). The 1860 Act authorized a selection totaling up to 496, 447 acres, see Shaw v. Kellogg, 170 U.S. at 315, and, in December of 1860, the Baca heirs selected the first of their parcels -- known as “Baca location No. 1” -- an area totaling approximately 99, 289 acres of land in and adjacent to the Valles Caldera, United States v. Redondo Development Co., 254 F. 656, 657 (8th Cir. 1918). Without notice to Jemez Pueblo, the Surveyor-General reviewed and authorized the Baca heirs' selection, and after the Surveyor-General's approval, the Baca heirs began using the Valles Caldera, primarily for grazing. See United States v. Redondo Dev. Co., 254 F.2d at 657.

         The Surveyor-General's authorization indicated that, in 1860, the United States viewed the Valles Caldera as “vacant” and unoccupied. Pueblo of Jemez v. United States, 790 F.3d at 1149. Notwithstanding the Surveyor-General's determination that the lands included in Baca Location No. 1 were “vacant, ”

the Jemez Pueblo alleges the lands . . . were “exclusively possessed, used and occupied by Jemez Pueblo pursuant to the Pueblo's aboriginal Indian title, ” id. at 18 ¶ 82, and that the “Baca heirs received these lands subject to the continuing aboriginal Indian title of Jemez Pueblo, ” id. at 18 ¶ 83. Moreover, the Jemez Pueblo alleges that it continued to use and occupy the Valles Caldera for traditional purposes without any opposition or interference from the Baca family.

Pueblo of Jemez v. United States, 790 F.3d at 1149.

         3. The Pueblo's Claims Before the Indian Claims Commission.

         In 1946, Congress enacted the Indian Claims Commission Act, 60 Stat. 1049 (“ICCA”), to “dispose of the Indian claims problem with finality” and to “transfer from Congress to the Indian Claims Commission the responsibility for determining the merits of native American claims.”[5] United States v. Dann, 470 U.S. 39, 45 (1985). Congress also included a statute of limitations under which any pre-August 13, 1946, claims against the United States not brought before August 13, 1951, would be forever relinquished. ICCA §§ 2, 12, 60 Stat. 1049. Section 12 of the ICCA provides: “[N]o claim existing before such date but not presented within such period may thereafter be submitted to any court or administrative agency for consideration, nor will such claim thereafter be entertained by the Congress.” ICCA § 12, 60 Stat. 1049. See also Pueblo of Jemez v. United States, 790 F.3d at 1147 n.13 (quoting ICCA § 12). Furthermore, under ICCA § 22(a), payment of a claim under the ICCA bars suit against the United States for any claims “touching on any of the matters” presented before the Indian Claims Commission (“ICC”). ICCA § 22(a), 60 Stat. 1049 (“[P]ayment of any claim, after a determination under the Act, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.”). See also Pueblo of Jemez v. United States, 790 F.3d at 1170 (quoting ICCA § 22(a)).

         On July 9, 1951, within the ICCA's prescribed five-year period for filing claims, the Jemez, Zia, and Santa Ana Pueblos filed a petition with the ICC. See Pueblo of Zia, et al v. United States, 11 Ind. Cl. Comm. 131 (1962)(“Zia I”). Before the ICC, the Pueblos alleged, among other things, that in 1848, they held aboriginal title to approximately 520, 000 acres of lands in Sandoval County, New Mexico. See United States v. Pueblo De Zia, 474 F.2d 639 (Ct.Cl.1973)(“Zia IV”). The Pueblos alleged that the United States had violated their aboriginal title, because other, non-Indian persons were allowed to claim and possess those same lands. See Zia IV, 474 F.2d at 641. Baca Location No. 1, which included the area of the Valles Caldera, was not the subject of this litigation.

         The ICC initially concluded that the Pueblos had failed to establish any aboriginal title to any of the lands. See Zia IV, 474 F.2d at 641. The ICC concluded that those lands that the Surveyor-General and the United States had held were subject to Spanish or Mexican grants before the Treaty of Guadalupe Hidalgo were “all held valid and patented by the United States[;] they were private property as of the time of the Treaty of Guadalupe Hidalgo. Therefore, [the Pueblos'] claim of aboriginal title to these areas must be rejected.” Pueblo De Zia v. United States, 165 Ct. Cl. 501, 503 (1964)(“Zia II”). With respect to those lands that had entered the public domain, the ICC ruled that “the evidence offered is so vague and indefinite that a finding of aboriginal title in the [Pueblos] to any of the claimed area would have to be based on mere conjecture.” Zia II, 165 Ct. Cl. at 503. The ICC concluded that the evidence did not establish “the extent of [the Jemez, Zia, and Santa Ana Pueblos'] exclusive use and occupancy of the claimed area as of the critical date.” Zia II, 165 Ct. Cl. at 507.

         On appeal, the Pueblos “concede[d] the correctness of the Commission's determination that they had no aboriginal claim to the Spanish grants which encroach on the claimed area.” Zia II, 165 Ct. Cl. at 503. Nonetheless, the Pueblos contended that they had established that they had, at one time, held aboriginal title to the 298, 634 acres that had entered the public domain. See Zia II, 165 Ct. Cl. at 507-08. The Court of Claims agreed, concluding that the Pueblos had established aboriginal title to those lands. See Zia II, 165 Ct. Cl. at 508-09. The Court of Claims remanded the case to the ICC. See Zia II, 165 Ct. Cl. at 509.

         On remand, the Pueblos argued that the United States had extinguished the Pueblos' aboriginal title by including some of the lands within the Jemez National Forest Reserve and by including the remaining lands within the boundaries of a grazing district established pursuant to the Taylor Grazing Act of 1934, 43 U.S.C. §§ 315-315r (“Taylor Grazing Act”). See Pueblo de Zia v. United States, 19 Ind. Cl. Comm. 56, 68 (1968)(“Zia III”). The ICC ultimately agreed that the United States had extinguished aboriginal title through those actions. See Zia III, 19 Ind. Cl. Comm.at 74-76. Additionally, the Commission found that the United States had previously extinguished title to many thousands of acres of land when it patented those lands to private parties under the homestead acts. See Zia III, 19 Ind. Cl. Comm. at 77. On appeal, Jemez Pueblo conceded, and the Court of Claims upheld, those conclusions. See Zia IV, 474 F.2d at 641-42 n.4.

         The parties entered into a settlement, and on January 10, 1974, the ICC entered a final judgment of $749, 083.75 in favor of the Pueblos. See Pueblo of Jemez v. United States, No. CIV 12-0800 RB/RHS, 2013 WL 11325229, at *5 (D.N.M. Sept. 24, 2013)(Brack, J.), rev'd and remanded, 790 F.3d 1143 (10th Cir. 2015)(“Pueblo of Jemez I”). The stipulation agreement signed by the Pueblo stated that the “final judgment shall finally dispose of all rights, claims or demands which plaintiffs have asserted or could have asserted with respect to the subject matter of such case.” Pueblo of Jemez I, 2013 WL 11325229, at *5. Congress later declared the plan for the distribution of the award to the Pueblos valid and effective. See Pueblo of Jemez I, 2013 WL 11325229, at *5.

         4. Valles Caldera Preservation Act.

         On July 25, 2000, then-President Clinton signed the Valles Caldera Preservation Act of 2000, 16 U.S.C. §§ 698v-698v-10 (repealed 2014)(“Preservation Act”), [6] establishing the Valles Caldera National Preserve. See Pueblo of Jemez v. United States, 790 F.3d at 1149-50. The Preservation Act authorized the Secretary of Agriculture to purchase the 94, 761-acre ranch on Baca Location No. 1 from the Baca heirs' successors-in-interest -- the Dunnigan family[7] -- “to protect and preserve scientific, scenic, geologic, watershed, fish, wildlife, historic, cultural, and recreational values . . . and to provide for multiple use and sustained yield” of its renewable resources. 16 U.S.C. §§ 698v-2, -3. Congress also recognized that “certain features on the Baca ranch have historical and religious significance to Native Americans, ” and Congress explained that those features “can be preserved and protected through Federal acquisition of the property.” 16 U.S.C. § 698v-10. Nevertheless, Jemez Pueblo “alleges that the United States purchased this property interest subject to its continuing aboriginal Indian title, and that shortly thereafter the government began limiting the Jemez Pueblo's access to the land.” Pueblo of Jemez v. United States, 790 F.3d at 1149-50.

         PROCEDURAL BACKGROUND

         In 2012, the Jemez Pueblo filed this suit under the federal common law and the Quiet Title Act, 28 U.S.C. § 2409a (“QTA”), seeking a judgment that Jemez Pueblo “has the exclusive right to use, occupy, and possess the lands of the Valles Caldera National Preserve pursuant to its continuing aboriginal title to such lands.” Complaint to Quiet Title to Aboriginal Indian Land, Prayer for Relief ¶ 1, at 14-15, filed July 20, 2012 (Doc. 1)(“Complaint”). Specifically, Jemez Pueblo alleges aboriginal title to “that certain parcel of land commonly known as Baca Location No. 1 located in Sandoval and Rio Arriba Counties, New Mexico . . . containing 99, 289.39 acres, more or less.” Doc. 1 at 27.

         1. The Motion to Dismiss.

         The United States' filed a motion to dismiss pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure based on the theories that: (i) the ICC divested the district court of jurisdiction over the Pueblo's claim to the Valles Caldera, and (ii) sovereign immunity and issue preclusion bar Jemez Pueblo from bringing a claim. See United States' Motion to Dismiss Plaintiff's Complaint and Memorandum of Points and Authorities at 2-3, filed February 14, 2013 (Doc. 14)(“Motion”). As to rule 12(b)(1), the United States argued that “Congress expressly deprived district courts of jurisdiction over the subject matter of Plaintiff's claims, when it enacted the limited waiver of sovereign immunity in the ICCA, which has since expired.” Motion at 10. Although Jemez Pueblo contends that it possessed unextinguished aboriginal title in 2000, when Congress passed the Preservation Act, the United States argues that Jemez Pueblo was divested of aboriginal title in 1860, when the United States granted the land encompassing the Valles Caldera to the Baca family. See Motion at 10. The United States contends that the ICCA bars Jemez Pueblo's action in this case because of the ICCA's “finality provision, ” which states that

(1) payment of any claim after a determination under the Act shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy, and (2) a final determination against a claimant made and reported in accordance with the Act shall forever bar any further claim or demand against the United States arising out of the matter involved in the controversy.

Motion at 11 (quoting ICAA § 22(a)). It follows, according to the United States, that the finality provision “fully discharged the United States of all liabilities.” Motion at 11 (emphasis in Motion).

         The United States further argues that, based on the Complaint and the amended petition filed before the ICC in Zia I, Jemez Pueblo's claims concern “the same matters that were litigated nearly 50 years prior.” Motion at 13. According to the United States, finality thus occurred when the United States deposited the final monetary award in Jemez Pueblo's bank account. See Motion at 13 (citing United States v. Dann, 470 U.S. 39, 50 (1985)). The United States argued that, even if the ICC finality provision does not bar the claim, Jemez Pueblo expressly waived any right to assert future claims of aboriginal title when it authorized final judgment against the United States in its claim before the ICC. See Motion at 13-14. The United States adds that the ICCA provided the “exclusive forum” for the litigation of Jemez Pueblo's claim to aboriginal title, and thus the prior litigation precludes the district court from exercising subject-matter jurisdiction. Motion at 14. The United States also argues that the ICC's “wide-ranging and exclusive jurisdiction” over “all possible” historic Indian claims included claims of aboriginal title. Motion at 14 (citing United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct. Cl. 1975)). The United States adds that, “[a]s a corollary, the ICC's expansive jurisdiction required that tribes present claims of both extinguished and existing aboriginal title.” Motion at 15 (emphasis in Motion)(citing Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1463 (10th Cir. 1987). The ICCA's “comprehensive nature, ” the United States contends, expressly deprived the district courts of jurisdiction over claims that fell within the ICCA's jurisdiction. Motion at 15. The United States concedes, however, that Congress provided for monetary damages only and not for equitable relief. See Motion at 15. Nevertheless, the United States contends that the QTA does not evidence Congressional intent to reopen the federal courts to Indian claims that accrued before 1946, as nothing in the QTA or its legislative history suggests such intent. See Motion at 16. Thus, according to the United States, Jemez Pueblo's action to quiet title is a “thinly veiled attempt to seek a remedy . . . that Congress never contemplated in crafting the expansive jurisdiction of the ICC.” Motion at 17 (citing Navajo Tribe of Indians v. New Mexico, 809 F.2d at 1467; Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony v. City of Los Angeles, No. 1:06-cv-00736-OWW-LJO, 2007 WL 521403, at *16 (E.D. Cal. Feb. 15, 2007)(Wanger, J.)(concluding that, “even if [a plaintiff] had timely filed its claim under the ICCA, [it] could not have quieted title in these lands or maintained an action in ejectment . . . . The Tribe simply would have had to accept just monetary compensation if the Commission found their claim to title valid”), aff'd, 637 F.3d 993, 998 (9th Cir. 2011).

         The United States also argues that, based on Jemez Pueblo's Complaint, “[t]he United States ostensibly acted in a manner inconsistent with the Pueblo's aboriginal title long before 1946, and [Jemez Pueblo] has offered no explanation why they were unable to pursue this claim in the exclusive forum of the ICC.” Motion at 18. The United States further argues that “[i]t is irrelevant that the Pueblo did not claim title to the Valles Caldera in the ICC litigation; the Pueblo could have asserted title to the Valles Caldera in much the same manner that they did with respect to other land claims.” Motion at 18. The United States adds that “it is hard to conceive of a claim more stale than Plaintiff's claim of title to the National Preserve, ” and it “would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.” Motion at 19 (citing Block v. North Dakota ex rel. Board of Univ. & Sch. Lands, 461 U.S. 273, 285 (1983)).

         The United States also contends that rule 12(b)(6) forms the basis for dismissal of Jemez Pueblo's claims, because Jemez Pueblo already “fully and fairly litigated the scope and extent to which the [Jemez, Zia, and Santa Ana] Pueblos possessed aboriginal title to public lands, ” and is therefore foreclosed from bringing this claim under the doctrine of issue preclusion. Motion at 19-20. According to the United States, issue preclusion obtains because the ICC: (i) “made specific factual findings . . . defining the outer contours of the Pueblo's aboriginal lands”; (ii) paid an award to Jemez Pueblo that discharged all matters in controversy, which was effectively the Court of Claims' final judgement; and (iii) permitted Jemez Pueblo to provide “extensive” evidence, which is indicative of a “full and fair” opportunity to litigate. Motion at 22-23.

         The United States argues that Jemez Pueblo's claim of aboriginal title fails, because Jemez Pueblo cannot show exclusive use and occupancy given that the Baca family and their successors-in-interest occupied the Valles Caldera for almost 150 years. See Motion at 24. Moreover, according to the United States, the ICC already concluded that the United States' decision “to relinquish ownership and control of land in the public domain . . . extinguished any aboriginal title.” Motion at 24. Jemez Pueblo's use was not exclusive, according to the United States, because Jemez Pueblo has already conceded that other individuals occupied the land before federal acquisition in 2000. See Motion at 24. Furthermore, the Preservation Act extinguished Jemez Pueblo's right to exclusive use and occupancy, “if any such right even existed.” Motion at 24-25. The United States argues that such reasoning is in accord with the Court of Federal Claims' conclusion that “the Jemez Forest Reserve . . . effectively deprived them of the land and extinguished title.” Motion at 25 (citing Zia IV, 474 F.2d at 641. The United States asserts that the sovereign's will dominates, and, thus, “unless otherwise specified by an act of Congress, aboriginal rights prevail only against parties other than the federal government.” Motion at 26 (citing Oneida Indian Nation of N.Y. State v. Oneida Cty., 414 U.S. 661, 667 (1974); Vill. of Gambell v. Clark, 746 F.2d 572, 574 (9th Cir. 1984)(“[Aboriginal] rights are superior to those of third parties, including the states, but are subject to the paramount powers of Congress.”)). According to the United States, the Preservation Act therefore establishes all of the Pueblos' rights in the Valles Caldera's vicinity, and there is no support for the argument that Congress intended to grant Jemez Pueblo “an exclusive right to occupy and control more than 99, 000 acres of federal land.” Motion at 27.

         2. Jemez Pueblo's Response.

         Jemez Pueblo responded to the Motion by arguing that the United States has not provided a factual basis that Jemez Pueblo's “exclusive claim to the Valles Caldera touches on the joint claim in the ICC such that the payment of any award would have triggered the finality provision of the ICCA.” Plaintiff's Response in Opposition to United States' Motion to Dismiss Plaintiff's Complaint and Memorandum of Points and Authorities at 4, filed May 13, 2013 (Doc. 22)(“Response”). Jemez Pueblo further argues that the United States also fails to provide extrinsic evidence that Jemez Pueblo “had a claim for compensation relating to the Valles Caldera as of 1946.” Response at 4. Jemez Pueblo contends that it has alleges facts sufficient to establish a claim that entitles it to relief, specifically that Jemez Pueblo holds aboriginal title to the Valles Caldera “through exclusive use and occupancy from as early as the 13th century.” Response at 5-6. Moreover, Jemez Pueblo asserts that the title is still valid, because Congress has not expressly acted to extinguish it. See Response at 6. Moreover, the Congressional statute that grants land to the Baca heirs lacks the requisite, express language necessary to extinguish aboriginal title. See Response at 7. Thus, according to Jemez Pueblo, the Surveyor-General's approval of the land that now encompasses the Valles Caldera “was no more than a ministerial action” incapable of extinguishing title. Response at 8. Furthermore, according to Jemez Pueblo, the Congressional statute authorizes only the selection of “vacant” land and makes no mention of preexisting rights, indicating that the Baca heirs took title subject to the Tribal right of use and occupancy. Response at 8. According to Jemez Pueblo, in the years since the Baca land grant, Jemez Pueblo has neither ceded nor abandoned its aboriginal title. Response at 9.

         Jemez Pueblo also argues that Congress did not intend that the ICCA be an “exclusive remedy” which would extinguish otherwise valid aboriginal title. Response at 10. The ICCA, according to Jemez Pueblo, is remedial legislation intended to provide American Indians with “a measure of justice and a remedy for ancient wrongs.” Response at 10 (citing Blackfeet & Gros Ventre Tribes of Indians v. United States, 119 F.Supp. 161, 168 (Ct. Cl. 1954)(Madden, J., dissenting)(“The purpose of the Indian Claims Commission Act was to close out the claims of Indian tribes for ancient wrongs.”)). Jemez Pueblo notes that “no decision under the ICCA has ever cited the Act itself as taking or extinguishing Indian title.” Motion at 13. Moreover, Jemez Pueblo asserts that the Supreme Court of the United States' opinion in Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955), expressly states that the Congressional purpose behind the ICCA is “compassion” and that, when Congress acts to extinguish aboriginal title, it does so through “negotiation rather than force.” Response at 14 (citing Tee-Hit-Ton Indians v. United States, 348 U.S. at 273-74. Jemez Pueblo argues that the legislative history of the ICAA, based on statements from Felix Cohen[8] to the House Indian Committee Chairman, indicates that the statute of limitations “would only deny a remedy for then existing claims.” Response at 15 (emphasis in Response). Jemez Pueblo asserts that the ICCA section which provides a waiver of the government's sovereign immunity for claims accruing after the ICCA's passage does not impose a “money damages only” remedy, because many American Indian Tribes have continued to litigate treaty rights, hunting rights, fishing rights, and land rights in federal court in the years since 1946. Response at 16.

         Jemez Pueblo contests the United States' assertion that the Tenth Circuit in Navajo Tribe of Indians v. New Mexico holds that Tribes were required to present claims of existing aboriginal title, principally because the Tenth Circuit does not explain “just how broadly the word ‘claim' under the ICCA should be interpreted.” Response at 20 (citing Navajo Tribe of Indians v. New Mexico, 809 F.2d at 1464). Moreover, according to Jemez Pueblo, the Tenth Circuit's view that Tribes had to convert live title claims into claims for money damages is unprecedented, and lacks support in either Supreme Court or out-of-circuit caselaw. See Response at 22. Jemez Pueblo argues that the Navajo Tribe of Indians v. New Mexico decision conflicts with Supreme Court precedent, as post-1946 cases adjudicating Tribal claims to land and water rights evidence. See Response at 22-26. The Pueblo notes that the United States Court of Appeals for the Eighth Circuit has expressly declined to follow the Tenth Circuit's embrace of the exclusive remedy theory by holding that the QTA -- not the ICCA -- time-bars a Tribe's claim. See Response at 26-27 (citing Spirit Lake Tribe v. North Dakota, 262 F.3d 732 (8th Cir. 2001)). Jemez Pueblo further argues that the United States has taken inconsistent positions on the ICCA's effect on otherwise unextinguished claims to aboriginal title, because the United States by formerly argued that the statute of limitations is inapplicable to foreclose a Pueblo from adjudicating live water rights in New Mexico ex rel. State Engineer v. Abbott, No. CIV 68-7488, 2011 WL 13284602, at *1 (D.N.M. Sept. 14, 2011)(Black, J.), but here expanding the ICCA statute of limitations' “scope and effect, ” thereby indicating that the United States argues its exclusive remedy theory “as expediency may dictate.” Response at 29.

         Jemez Pueblo also argues that the proceedings before the ICC in United States v. Pueblo de Zia, do not preclude its claim, because that action was for a separate piece of disputed land jointly held by three pueblos and was not a claim for “compensation for a general taking of all Jemez Pueblo lands.” Response at 31-32. Jemez Pueblo thus contends that it never had a “full and fair” opportunity to litigate this claim, which is exclusive to the Valles Caldera. Response at 34. Furthermore, according to Jemez Pueblo, the ICCA's finality provision does not bar the present claim, because it does not touch the claim that Jemez Pueblo settled in Zia III. Response at 36. Moreover, argues Jemez Pueblo, because the Valles Caldera was not the subject of the ICC litigation, neither the payment of the award nor the stipulation of settlement serves as a bar the present suit. See Response at 37-39. Jemez Pueblo also adds that nothing in the language of the Preservation Act indicates that Congress intended to extinguish aboriginal title, and, “[i]n fact, the Preservation Act expressly preserved valid existing rights.” Response at 40 (citing § 105(e), 114 Stat. 598).

         3. The United States' Reply.

         The United States replies to Jemez Pueblo's Response by reasserting that Jemez Pueblo's failure to timely file its claim under the ICCA divests the district court of subject-matter jurisdiction and deprives Jemez Pueblo of the opportunity to litigate its claims against the United States. See United States' Reply and Memorandum of Points and Authorities in Support of Motion to Dismiss Plaintiff's Complaint at 1-2, filed June 5, 2013 (Doc. 22)(“Reply”). The United States argues that the Motion is a factual challenge to the existence of subject-matter jurisdiction, because it contends that the ICCA's time-limited waiver of sovereign immunity bars the district court from exercising jurisdiction over the suit. See Reply at 3. The United States adds that Jemez Pueblo “misunderstands the nature of subject matter jurisdiction, ” because Jemez Pueblo bears the burden to identify a “waiver of the United States' sovereign immunity.” Reply at 3-4 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)(holding that because “[f]ederal courts are courts of limited jurisdiction . . . [i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction”)).

         The United States also argues that the ICCA did not operate as a “backhanded” extinguishment of aboriginal title, but instead represented Congress' decision to vest the ICC with exclusive jurisdiction of a limited duration “to resolve with finality all claims against the United States.” Reply at 5. The United States contends that the ICCA “provided the only unequivocal expression of the United States' consent to be sued for the subject matter that lies at the heart of this case: historic land claims against the United States.” Reply at 5 (emphasis in Reply). The waiver, however, according to the United States, was for a period of only five years. See Reply at 5 (citing ICCA § 12 (stating that any claim not filed within the limitations period could not “thereafter be submitted to any court or administrative agency for consideration.”)). The United States avers that failure to bring a claim before the ICC did not effectuate an extinguishment, as Jemez Pueblo contends, but rather resulted in losing an opportunity to litigate a dispute against the United States. See Reply at 6. Jemez Pueblo's decades-long litigation before the ICC, according to the United States, is evidence of the ICCA's broad scope, and the payment of the award discharges “all matters that were raised or could have been raised.” Reply at 6.

         The United States contends that Jemez Pueblo “blurs the distinction” between being foreclosed from litigating the validity of title against the United States and the extinguishment of aboriginal title, which the United States agrees the ICCA decidedly did not effectuate. Reply at 7. The United States argues that the favorable cases cited by Jemez Pueblo involve water rights claims that were against parties other than the United States, which could not have been litigated before the ICC, because the claims were not against the United States and were therefore outside of the ICCA's jurisdiction. See Reply at 8 n.4. Thus, according to the United States, Jemez Pueblo's only opportunity to sue the sovereign was before the ICC. See Reply at 9. Moreover, the United States notes that Jemez Pueblo's claim of title to the Valles Caldera is cognizable under the ICCA and therefore should have been litigated during the statutorily prescribed time period. See Reply at 10. The United States concludes that the Tenth's Circuit's decision in Navajo Tribe of Indians v. New Mexico supports this position, because the Tenth Circuit specifically concluded that a claim of unextinguished title was cognizable under the ICCA. See Reply at 12 (citing in Navajo Tribe of Indians v. New Mexico, 809 F.2d at 1464).

         The United States also contends that the QTA's remedial scheme highlights the flaws in Jemez Pueblo's suit given that a determination adverse to the United States would likely result in the payment of just compensation -- not cession of the property -- which “would be the identical position had [Jemez Pueblo] pursued this claim before the Commission, six decades after the expiration of the United States' waiver of sovereign immunity.” Reply at 14. The United States concludes that dismissal pursuant to rule 12(b)(6) is warranted, because holding otherwise will impermissibly enlarge the scope of the waiver of sovereign immunity. Reply at 14 (citing United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992)(“[T]he Government's consent to be sued must be construed strictly in favor of the sovereign, and not enlarge[d] . . . beyond what the language requires.”)).

         The United States concedes that monetary compensation is the sole remedy available under the ICCA, however; once Jemez Pueblo accepts the award, the United States is discharged of its liability for any claim that “touched” on or “arose from” the matters previously litigated. Reply at 15. The United States argues that the Eighth Circuit's precedent which Jemez Pueblo cites is “squarely contradicted” by the Eighth Circuit's opinion in Oglala Sioux Tribe of Pine Ridge Indian Reservation v. United States. Reply at 16 (citing Oglala Sioux Tribe of Pine Ridge Indian Reservation v. United States, 650 F.2d 140, 141 (8th Cir. 1981)(“Congress has deprived the district courts of subject matter jurisdiction by expressly providing an exclusive remedy for the alleged wrongful taking through the enactment of the Indian Claims Commission Act.” (emphasis only in Reply))). Moreover, the Tribe in Spirit Lake Tribe v. North Dakota presented to the ICC an aboriginal title claim “that was ultimately resolved in the Band's favor, demonstrating that historic land claims against the United States and premised on aboriginal title were cognizable under the ICCA.” Reply at 16 (citing Spirit Lake Tribe v. North Dakota, 262 F.3d at 732). According to the United States, this precedent supports the argument that the stipulation adopted by Jemez Pueblo extends the bar to all claims that could have been litigated, and, consequently, to Jemez Pueblo's claim in this case. See Reply at 17.

         Moreover, the United States argues that dismissal under rule 12(b)(6) is appropriate, because Jemez Pueblo has not pled facts that entitle it to exclusive use, occupancy, and control over the Valles Caldera, and, thus, there is no aboriginal title for the United States to extinguish. Reply at 17. It follows, argues the United States, that the Baca family's settlement of the area precludes establishment of aboriginal title “as a matter of law.” Reply at 17 (citing Alabama- Coushatta Tribe of Tex. v. United States, No. 3-83, 2000 WL 1013532, at *28-29 (Fed. Cl. June 19, 2000)(Tidwell, J.)(“Nonetheless, non-Indian settlement of the acreage granted by Spain before the Tribe established aboriginal title would undoubtedly interfere with the Tribe's exclusive use and occupancy of such acreage.”)). According to the United States, statements from the ICC in the Zia III litigation, which concluded that aboriginal title was extinguished by non-Indian settlement and the designation of the Jemez Forest Reserve, support the argument that non-Indian settlement can effectuate aboriginal title extinguishment. See Reply at 18. It follows, argues the United States, that issue preclusion prevents Jemez Pueblo from “maintain[ing] an action to supplement the findings of the Commission issued nearly four decades prior.” Reply at 21.

         The United States repeats its argument that dismissal pursuant to rule 12(b)(6) is appropriate, because the federal common law of aboriginal title does not furnish Jemez Pueblo with a superior right to the Valles Caldera than the federal government. See Reply at 21. According to the United States, aboriginal title is “a creature of federal common law, ” and therefore cannot displace Congress' legislative directives as expressed in the Preservation Act. Reply at 22. Jemez Pueblo, the United States concludes, “has failed to cite a single case” sufficient to show that aboriginal title can “divest the sovereign of its own land.” Reply at 22.

         4. Judge Brack's Decision.

         The Honorable Robert C. Brack, United States District Judge for the District of New Mexico, granted the United States' motion to dismiss for lack of subject-matter jurisdiction by relying primarily on the Tenth Circuit's opinion in Navajo Tribe of Indians v. New Mexico, which held that the statute of limitations within the ICCA bars suits against the United States for claims of aboriginal title. See Pueblo of Jemez I, 2013 WL 11325229, at *5. Specifically, Judge Brack held that Jemez Pueblo had a claim against the United States that accrued as a matter of law before 1946 and, therefore, that Jemez Pueblo's sole remedy was to have brought an action before the ICC before the statute of limitations bars the claim. See Pueblo of Jemez I, 2013 WL 11325229, at *4 (“It is well-established that the ICCA provided the exclusive remedy for pre-1946 Indian tribal land claims against the United States. . . . In other words, if a Tribe failed to bring a timely claim under the ICCA, it lost its opportunity to litigate its dispute with the United States.”). Moreover, Judge Brack concludes that Jemez Pueblo failed to distinguish its claim from contrary precedent and instead “relie[d] on inapplicable cases involving claims for aboriginal title against parties other than [the United States].” Pueblo of Jemez I, 2013 WL 11325229, at *4.

         Regarding the Tenth's Circuit opinion in Navajo Tribe of Indians v. New Mexico, Judge Brack stated that he is “not free to speculate” about how broadly the Tenth Circuit interprets the word “claim” and instead is tasked with ascertaining and applying the Tenth Circuit's holding that the Tribe's claim against the United States is barred, because the claim falls within the ICCA's exclusive jurisdiction and is therefore subject to the ICCA's statute of limitations. Pueblo of Jemez I, 2013 WL 11325229, at *4. Judge Brack held that Navajo Tribe of Indians v. New Mexico is controlling precedent, and that Jemez Pueblo's inconsistent suggestions that it does not control and that the Tenth Circuit wrongly decided it are “both unpersuasive and unavailing.” Pueblo of Jemez I, 2013 WL 11325229, at *4. Moreover, Judge Brack found that Navajo Tribe of Indians v. New Mexico is “concordant” with out-of-circuit precedent. Pueblo of Jemez I, 2013 WL 11325229, at *4.

         Judge Brack took issue with the fact that Jemez Pueblo asserts both that the Baca heirs received their land grant in 1860 subject to its aboriginal title and also that it did not have a claim against the United States in 1946:

Plaintiff cannot have it both ways. Either Defendant's grant to the Baca family extinguished aboriginal title or not. If the Baca land grant extinguished Plaintiff's aboriginal title, then aboriginal title was extinguished in 1860 and Plaintiff cannot claim aboriginal title now. On the other hand, if the Baca land grant did not extinguish Plaintiff's aboriginal title, Plaintiff's claim existed prior to 1946 and Plaintiff had the opportunity to avail itself of the remedy afforded by the ICCA and such claim is now barred by the statute of limitations contained in the ICCA.

Pueblo of Jemez I, 2013 WL 11325229, *at 4.

         Judge Brack also concludes that ICCA § 22 required Jemez Pueblo to litigate its claim to the Valles Caldera in its prior ICC proceedings when it sought compensation, and received money damages, for the taking and extinguishment of aboriginal title to other Jemez Pueblo lands. See Pueblo of Jemez I, 2013 WL 11325229, at *5. Judge Brack therefore further concludes that, “[b]ecause [the Pueblo] did not comply with the requirements of the ICCA with respect to the subject property, its claim against the United States is barred by sovereign immunity.” Pueblo of Jemez I, 2013 WL 11325229, at *5. Moreover, Judge Brack states that the United States' relatively recent acquisition of the Valles Caldera has no affect on his analysis given that “[c]ourts have uniformly held that a tribe cannot obtain review of a historical land claim otherwise barred by the ICCA by challenging present-day actions involving the land.” Pueblo of Jemez I, 2013 WL 11325229, at *5.

         5. Arguments on Appeal.

         Jemez Pueblo appeals to the Tenth Circuit from Judge Brack's final order dismissing the case, arguing that Judge Brack erred in failing to find subject-matter jurisdiction over Jemez Pueblo's claim, because Jemez Pueblo filed its claim pursuant to the QTA and not the ICCA. The United States responds that Judge Brack correctly dismissed the case pursuant to rule 12(b)(1), because ICCA §§ 12 and 22 divest his court of jurisdiction. Jemez Pueblo replies by reasserting that Judge Brack erred when he failed to address Jemez Pueblo's subject-matter jurisdiction under the OTA's sovereign immunity waiver, which, according to Jemez Pueblo, was the only waiver of immunity and source of jurisdiction on which Jemez Pueblo relies on in its Complaint.

         a. Jemez Pueblo's Appellant Brief.

         Jemez Pueblo filed an appeal to the Tenth Circuit from Judge Brack's final order dismissing the case, arguing that Judge Brack erred in failing to find subject-matter jurisdiction over Jemez Pueblo's claim, because Jemez Pueblo filed its claim pursuant to the QTA and therefore “did not rely on the waiver of immunity in the (now repealed) Indian Claims Commission Act.” Brief of Appellant Pueblo of Jemez at 14, filed April 30, 2014 (Doc. 01019242516 on the Tenth Circuit's docket)(“Appellant Br.”). Jemez Pueblo argues that it does not need to allege a fee simple interest in the disputed property to bring a claim under the QTA. See Appellant Br. at 14 (citing Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir. 1978)). According to Jemez Pueblo, Judge Brack's findings of fact, taken from Jemez Pueblo's Complaint, are sufficient to support Jemez Pueblo's claim to aboriginal title. See Appellant Br. at 15. Jemez Pueblo contends that the United States' “attacks on the Pueblo's factual averments can be, and should have been, addressed through evidence at trial.” Appellant Br. at 16 (citing United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 345 (1941)(“Santa Fe”)(“Occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact”)). Jemez Pueblo avers that it brought its claim within the QTA's twelve-year statute of limitations period, and that the claim should be evaluated under that statute and not the ICCA, because the claim accrued only in 2000 when the United States acquired an interest to the Valles Caldera. See Appellant Br. at 17-18.

         Jemez Pueblo argues that Judge Brack ignored the distinction between extinguished and unextinguished title when he decided the factual merits of Jemez Pueblo's claim under rule 12(b)(1) without making the necessary factual determination of when Jemez Pueblo's claim accrued. See Appellant Br. at 17-19. Instead, Jemez Pueblo argues, Judge Brack should have allowed Jemez Pueblo to develop a full record on summary judgement or at trial. See Appellant Br. at 20 (citing Paper, Allied-Indus., Chem. & Energy Workers Intl Union v. Cont'l Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005)(“[A] court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case.”)). Moreover, Jemez Pueblo asserts that Judge Brack was required to make a factual finding as to the date when Jemez Pueblo's claim arose. See Appellant Br. at 24.

         Jemez Pueblo argues that, because it alleges a present interest in the Valles Caldera, it was not required to seek compensation before the ICC but instead may pursue equitable relief pursuant to the QTA. See Appellant Br. at 24. Moreover, Jemez Pueblo asserts that it could not have brought a claim for equitable relief in 1946, because the QTA was not enacted until 1972 and because the United States did not at that time have an interest in the Valles Caldera. See Appellant Br. at 25-26.

         Jemez Pueblo argues that Judge Brack further erred when he held that the ICCA provides the exclusive remedy for unextinguished Indian land claims, as the ICCA is remedial legislation for takings designed to end the practice whereby Congress required individual Tribes to obtain such legislation on an ad hoc basis. See Appellant Br. at 27-28. Jemez Pueblo identifies seven separate arguments, each of which indicate that the ICCA is not an exclusive remedy: First, the legislative history proves that Felix Cohen, “the author of the definitive treatise on Indian law, ” informed the House Indian Committee Chairman that the ICCA statute of limitations “would only deny a remedy for then existing claims.” Appellant Br. at 28 (emphasis in Appellant Br.). Second, according to Jemez Pueblo, caselaw does not support the United States' assertion that the waiver of sovereign immunity imposes an “exclusive -- money damages only -- remedy” for Indian Tribes alleging unextinguished property rights. Appellant Br. at 28. Third, according to Jemez Pueblo, a “great number” of Indian Tribes have successfully litigated Tribal rights to land and water, chief among them being Congress' enactment of the Alaska Native Claims Settlement Act on December 18, 1971, “the largest land claims settlement in United States history.” Appellant Br. at 30. Fourth, according to Jemez Pueblo, the Tenth Circuit's ostensible support for the exclusive remedy theory in Navajo Tribe v. New Mexico does not bar Jemez Pueblo's claim, because that case involved land that was “indisputably taken by the federal government in 1908 and 1911, ” which had “clearly accrued as of 1946.” Appellant Br. at 35. Fifth, according to Jemez Pueblo, the exclusive remedy theory is contrary to Supreme Court precedent, because the Supreme Court has adjudicated numerous “live” title claims to water and land rights in the years since 1946. Appellant Br. at 42-44. Sixth, according to Jemez Pueblo, the United States has taken inconsistent positions on the ICCA's effect on otherwise unextinguished aboriginal title by previously arguing in favor of the Ohkay Owingeh Pueblo's post-1946 claim to aboriginal water rights in New Mexico, ex rel. State Engineer v. Abbott, 2011 WL 13284602, at *1. See Appellant Br. at 46-47. Seventh, according to Jemez Pueblo, nothing in the ICCA's jurisdictional grant is intended to extinguish valid title claims, and “no decision under the ICCA has ever cited the Act itself as taking or extinguishing Indian title.” Appellant Br. at 51. Jemez Pueblo concludes that the Tenth Circuit should reverse Judge Brack and thereby follow the Supreme Court precedent in Tee-Hit-Ton Indians v. United States, wherein the Supreme Court noted the “‘compassionate purpose' of the ICCA and federal policy to ‘extinguish Indian title through negotiation.'” Appellant Br. at 51-53 (citing Tee-Hit-Ton Indians v. United States, 348 U.S. at 273-74).

         b. The United States' Response.

         The United States responds that Judge Brack correctly dismissed the case pursuant to rule 12(b)(1), because ICCA §§ 12 and 22 divest his court of jurisdiction. See Response Brief for the United States at 15, filed July 17, 2014 (Doc. 01019280803 on the Tenth Circuit's docket)(“Resp. Br.”). ICCA § 12 applies, according to the United States, because Jemez Pueblo's claim accrued no later than 1860, when the United States “unconditionally transferred” the Valles Caldera to the Baca heirs. Resp. Br. at 15. The United States argues that Judge Brack properly determined the accrual question, based on the United States' conveyance of the land to the Baca heirs, without needing to reach the merits of Jemez Pueblo's claim that it exercised “full dominion” over the Valles Caldera. Resp. Br. at 18. The United States argues that ICCA § 22 applies, because Jemez Pueblo “already litigated its claim to aboriginal title before the ICC” and received payment from the federal government, thereby discharging all future “claims and demands touching any of the matters involved in the controversy.” Resp. Br. at 15 (citing ICCA § 22(a)). Again, the United States argues that Judge Brack properly reached this conclusion without considering the merits of Jemez Pueblo's claim, because “there is no overlap between the substantive issue of whether Jemez Pueblo holds continuing aboriginal title and whether Jemez Pueblo's claims of aboriginal title before the ICC touched on its current claim.” Resp. Br. at 18.

         The United States contends that ICCA § 12 divests Article III courts of jurisdiction over Jemez Pueblo's claim, because its claim existed before 1946, and Congress expressly deprived district courts of jurisdiction over all claims that could have been brought before the ICC, to include suits to quiet title. See Resp. Br. at 20. Claim preclusion applies to Jemez Pueblo, according to the United States, because even unextinguished claims could have been litigated before the ICC. See Resp. Br. at 21. The United States notes that the only remedy available to Tribes was monetary compensation, because Congress desired to ensure that “non-Indians were assured of continuing possession regardless of the outcome of the litigation.” Resp. Br. at 22. Furthermore, that the claim accrued before 1946 is evident, because three factors indicate that the United States acted “inconsistently” with Jemez Pueblo's alleged aboriginal title in 1860: First, the Surveyor General found that these lands were “vacant” before authorizing their transfer to the Baca heirs, in conflict with Jemez Pueblo's claim that they “occupied” the lands at the time. Resp. Br. at 24-25. Second, according to the United States, the United States transferred the disputed lands to the Baca heirs “absolutely, without condition, ” which necessarily “extinguished any aboriginal title (if any existed), ” thereby causing any claim based on aboriginal title to accrue. Resp. Br. at 26. The United States rejects Jemez Pueblo's assertion that the Baca grant is subject to pre-existing interests, because the statutory language contains no such limitation. Resp. Br. at 27 (citing Lane v. Watts, 235 U.S. 17, 22 (1914)). Furthermore, according to the United States, Congress was seeking to provide the Baca heirs with the same rights that they held to the lands in the vicinity of Las Vegas -- rights that aboriginal title does not encumber. See Resp. Br. at 28-29. Moreover, the United States asserts that Jemez Pueblo already conceded in Zia IV that grants of land to homesteaders extinguishes aboriginal title. See Resp. Br. at 30 (citing Zia IV, 474 F.2d at 641). Third, according to the United States, the Baca heirs occupied and used the land pursuant to the transfer from the United States, and such use “was fundamentally inconsistent with the alleged right of occupancy provided by aboriginal title.” Resp. Br. at 32. The United States asserts that the Baca heirs' eight decades of use extinguished any claim to aboriginal title. See Resp. Br. at 32-33 (citing United States v. Gemmill, 535 F.2d 1145, 1149 (9th Cir. 1976)(“This century-long course of conduct amply demonstrates that the [Tribe's] title has been extinguished.”)).

         The United States also argues that, contrary to Jemez Pueblo's contentions, the QTA does not provide a separate waiver of sovereign immunity in exception to ICCA § 12's bar on litigating stale claims. See Resp. Br. at 34. Such an exception would require express language in the QTA or support from its legislative history. See Resp. Br. at 34. Furthermore, according to the United States, even if Jemez Pueblo could point to evidence of Congressional intent for the QTA to displace ICCA § 12, the QTA's twelve-year statute of limitations would bar Jemez Pueblo's claim, which accrued in 1860 when the United States first asserted an interest in the Valles Caldera. See Resp. Br. at 36-37 (citing Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 286 n.23 (1983)(“The legislative history is clear that Congress intended to foreclose totally any suit on claims that accrued more than twelve years prior to the effective date of the QTA.”)).

         The United States contends that, contrary to Jemez Pueblo's assertions, recognizing that the ICCA was the exclusive forum and remedy for Jemez Pueblo's historic land claim in this case does not mean that the ICCA extinguished all Tribal litigation rights. See Resp. Br. at 38. Instead, the ICCA “deprive[s] Article III courts of jurisdiction to entertain historic land claims against the sovereign by enacting a time-limited waiver of sovereign immunity.” Resp. Br. at 39. Such a position, according to the United States, does not speak to the merits of the title issue but rather bars Jemez Pueblo from presenting its claim in federal court. See Resp. Br. at 39. The United States notes that the many cases cited by Jemez Pueblo involve claims against a state or a private entity -- not the United States -- and so the ICCA could not apply. See Resp. Br. at 40. Furthermore, argues the United States, post-1946 disputes involving water rights between Tribes and other State and private parties are not barred, because such disputes were “generally not cognizable before the ICC.” Resp. Br. at 40.

         The United States argues that ICCA § 22 also bars Jemez Pueblo's suit, because the United States already compensated Jemez Pueblo for its aboriginal title claim. See Resp. Br. at 41. Although Baca Location No. 1 was not that litigation's subject, the Baca ranch's southernmost bounds assisted Jemez Pueblo is establishing ownership of lands that Jemez Pueblo claimed, which the United States argues is sufficient contact to preclude the present litigation. See Resp. Br. at 42-43. Moreover, the United States asserts, the extent of Jemez Pueblo's aboriginal title was “squarely at issue” in the litigation before the ICC, and Jemez Pueblo had a full and fair opportunity to present its entire claim at that time. Resp. Br. 43-44. According to the United States, Jemez Pueblo's failure to litigate the Valles Caldera claim then is not cause to seek “an expansion of its earlier award” now. Resp. Br. at 44.

         The United States argues in the alternative that the Tenth Circuit should dismiss Jemez Pueblo's Complaint under rule 12(b)(6), because three factors show that the Complaint fails to state a claim as a matter of law: First, Jemez Pueblo has not pled facts to demonstrate that it exercised “full dominion and control” necessary to establish title to the Valles Caldera between 1860 and 2000. Resp. Br. at 47-48. Second, according to the United States, similar to the creation of the Jemez Forrest Reserve in 1905, the passage of the Preservation Act extinguished whatever claim to aboriginal title that existed. See Resp. Br. at 48-49. Third, the United States argues that aboriginal title prevails only against parties other than the United States. See Resp. Br. at 49-50. The United States concludes that a ruling in Jemez Pueblo's favor would upset Congress' will -- to ensure that the Valles Caldera be accessible to the public, and to the religious and cultural uses of “numerous Native American groups.” Resp. Br. at 51.

         c. Jemez Pueblo's Reply.

         Jemez Pueblo replies by reasserting that Judge Brack erred when he failed to address its subject-matter jurisdiction under the OTA's sovereign immunity waiver, which, according to Jemez Pueblo, is the only waiver of immunity and source of jurisdiction upon which Jemez Pueblo relies on in its Complaint. See Reply Brief of Appellant Pueblo of Jemez at 10, filed September 3, 2014 (Doc. 01019304554 on the Tenth Circuit's docket)(“Reply Br.”) at 10. Furthermore, argues Jemez Pueblo, Judge Brack should have used his “inherent authority” as a United States District Judge to decide when the claim against the United States accrued. Reply Br. at 10 (citing Petrella v. Brownback, 697 F.3d 1285, 1292 (10th Cir. 2012)(“[A] federal court always has jurisdiction to determine its own jurisdiction.”)). Jemez Pueblo contends that its claim should be analyzed under the QTA, because its interest in the Valles Caldera was not adverse to the United States in 1860 and became so only in 2000, within the QTA's twelve-year jurisdictional limit. See Reply Br. at 13.

         Jemez Pueblo further argues that Judge Brack erred by deciding the factual merits of its claim under rule 12(b)(1) in reliance on two flawed United States' arguments -- that Jemez Pueblo's prior claim before the ICC and monetary payment preclude Jemez Pueblo's title claim to the Valles Caldera, and that Jemez Pueblo's claim accrued before 1946 -- both of which “demonstrate the impropriety of dismissal under rule 12(b)(1) based on jurisdiction instead of full consideration of the merits of the claim at trial or on summary judgement. Reply Br. at 15- 16. Moreover, Jemez Pueblo contends that the United States neither addresses nor contests “basic concepts of property law” differentiating between a property interest and accrual of a claim, and between litigation to protect existing title and litigation seeking compensation for a taking. Reply Br. at 16-17. Jemez Pueblo adds that any ruling under rule 12(b)(6) should have been made on an adequate factual record and not dismissed at the early stages of the proceedings, because Jemez Pueblo's Complaint alleges sufficient facts to survive a motion to dismiss. See Reply Br. at 17-18. These facts, according to Jemez Pueblo, confirm that Jemez Pueblo's aboriginal title remained intact between 1860 and 2000, that the Preservation Act did not extinguish Indian Title, and that Jemez Pueblo has a legal right to defend its title against the United States' adverse claims or actions, all of which show that the Complaint is legally sufficient to survive a motion to dismiss. See Reply Br. at 18-23.

         Jemez Pueblo repeats its argument that Judge Brack further erred when he held that the ICCA provides the exclusive remedy for unextinguished aboriginal land claims, because the ICCA is remedial legislation for takings and Jemez Pueblo had not suffered a taking when Congress passed the legislation in 1946. See Reply Br. at 25-26. Jemez Pueblo further argues that the United States, in alleging that Jemez Pueblo could have brought its claim before the ICC, fails to distinguish between extinguished and unextinguished title, as the only aboriginal title claims that Jemez Pueblo brought to the ICC were those that were extinguished before 1946. See Reply Br. 29-30. Jemez Pueblo argues that neither the evidence nor the law supports the United States' assertion that Jemez Pueblo did not “occupy” the land in the nineteenth century, specifically because the Surveyor-General was not tasked with determining whether the lands were vacant and because the Surveyor-General's mandate did not include adjudication of aboriginal land claims. Reply Br. at 31. Moreover, Jemez Pueblo argues that the Surveyor-General's use of the term “vacant” meant only that he “had determined that the land was not claimed pursuant to any land grant, ” and its use was not based on any physical land inspection. Reply Br. at 33. Furthermore, Jemez Pueblo's aboriginal title is not inconsistent with the title granted to the Baca heirs, according to Jemez Pueblo and contrary to the United States assertion, because grants to individuals by the United States do not extinguish aboriginal title. See Reply Br. at 35 (citing United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 642-43 (9th Cir. 1986)). According to Jemez Pueblo, the Baca grant was not a taking or an extinguishment, but rather a quitclaim that did not affect any of Jemez Pueblo's superior aboriginal property interests.[9] See Reply Br. at 36. Jemez Pueblo adds that it could not have had a claim against the United States until after the land was conveyed back to the United States in 2000. See Reply Br. at 36-37. Moreover, the “quit claim” from the United States to the Bacas' is not “unconditional, ” Jemez Pueblo argues, because it is “subject to prior valid and preexisting interests, ” namely, Jemez Pueblo's aboriginal title. Reply Br. at 38. Jemez Pueblo adds that Navajo Tribe of Indians v. New Mexico does not involve impairment of a Tribal right to aboriginal title but rather the Tribe's untimely challenge to the United States' taking of reservation lands before the ICCA's passage. See Reply Br. at 40.

         Jemez Pueblo also argues that Judge Brack should have considered New Mexico law to determine when Jemez Pueblo's claim accrued. See Reply Br. at 40 (citing Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation, 599 F.3d 1165, 1177 (10th Cir. 2010)(“[F]ederal courts may properly look to state law as an aid in determining the application of statutory language to specific facts. In particular, questions involving ownership, transfer and title to real estate have traditionally been resolved according to the laws of the state where the realty is located.”)). According to Jemez Pueblo, New Mexico law supports its assertion that its claim against the United States did not accrue before the year 2000, because “under New Mexico law the creation of potentially conflicting interests in land does not, in itself, cause a claim to ‘accrue.'” Reply Br. at 41 (quoting Wooley v. Shell Petroleum Corp., 1935-NMSC-008, ¶46, 45 P.2d 927, 934. Thus, concludes Jemez Pueblo, Judge Brack erred by entering judgment before entering a finding of fact regarding the date on which Jemez Pueblo's claim accrued under New Mexico. See Reply Br. at 41.

         6. The Tenth Circuit's Decision.

         The Tenth Circuit concluded that Judge Brack erred in dismissing Jemez Pueblo's quiet title claims. See Pueblo of Jemez v. United States, 790 F.3d at 1147. In doing so, the Tenth Circuit reiterated that, absent a clear-and-unequivocal Congressional intent to extinguish preexisting aboriginal rights, Jemez Pueblo's aboriginal right of occupancy survives the grant to the Baca heirs. See 790 F.3d at 1162-63. The Tenth Circuit further held that the Baca heirs' occupation of the Valles Caldera, standing alone, may not be sufficient to extinguish aboriginal title, because fee title and aboriginal title can exist simultaneously. See 790 F.3d at 1165. The Tenth Circuit, therefore, remanded the case to Judge Brack for consideration whether Jemez Pueblo “had, and still has, aboriginal title to the land at issue in this case.” 790 F.3d at 1165.

         After providing a detailed history of aboriginal rights, the Tenth Circuit first turned to the question of subject-matter jurisdiction. See 790 F.3d at 1161. In describing its analysis whether Judge Brack had subject-matter jurisdiction, the Tenth Circuit noted that if Jemez Pueblo

had a claim against the United States which, as a matter of law, accrued before August 13, 1946 . . . then the district court was correct in holding the claim barred by ICCA § 12 and concluding that it lacked subject matter jurisdiction. If we cannot determine as a matter of law that there was a pre-1946 claim against the government, then the claim is not facially barred by § 12 of the ICCA.

Pueblo of Jemez v. United States, 790 F.3d at 1161. Regardless of the Tenth Circuit's claim accrual analysis, the Tenth Circuit also tasked itself, in accordance with the United States' rule 12(b)(1) argument, to “determine alternatively whether compensation paid to the Jemez Pueblo in prior litigation before the ICC forecloses this claim under the ICCA § 22.” Pueblo of Jemez v. United States, 790 F.3d at 1161. The Tenth Circuit then rejected the United States' position that the 1860 land grant and the Surveyor-General's assessment that the lands were vacant extinguished Jemez Pueblo's aboriginal title, concluding that “[t]he government's arguments ignore the nature of aboriginal title and the last 200 years of Supreme Court jurisprudence.”[10] Pueblo of Jemez v. United States, 790 F.3d at 1162.

         The Tenth Circuit cites numerous Supreme Court and Courts of Appeals decisions which hold that federal land grants pass fee title to grantees subject to aboriginal title. See Pueblo of Jemez v. United States, 790 F.3d at 1162. For example, the Tenth Circuit quotes extensively from Oneida Indian Nation of New York State v. Oneida County, New York, wherein the Supreme Court held that “Indian title . . . could be terminated only by sovereign act.” Pueblo of Jemez v. United States, 790 F.3d at 1162 (quoting Oneida Indian Nation of N.Y.State v. Oneida Cty., 414 U.S. at 667). Given this controlling precedent, the Tenth Circuit concludes that, because the United States could not show “clear and unambiguous intent by Congress to allow extinguishment of the aboriginal right of occupancy of the Jemez Pueblo . . . the grant of land to the Baca heirs was valid to convey the fee but the Baca heirs took the title subject to the Jemez Pueblo's aboriginal title.” Pueblo of Jemez v. United States, 790 F.3d at 1161-62.

         The Tenth Circuit also rejects the United States' assertion that Jemez Pueblo's claim to “actual, exclusive, and continuous” use of the Valles Caldera is “flatly inconsistent” with the Surveyor-General's finding that the land was “vacant, ” because such an assertion “conflates the factual merits question of establishing aboriginal possession with the jurisdictional question on appeal of when a claim actually accrued.” Pueblo of Jemez v. United States, 790 F.3d at 1163. The Tenth Circuit cites the Supreme Court's decision in Santa Fe as evidence that the establishment of the office of Surveyor-General did not institute a policy of non-recognition of aboriginal title, because the Surveyor-General could only make recommendations to Congress, and it was left to Congress to decide what action to take. See Pueblo of Jemez v. United States, 790 F.3d at 1163-64 (citing Santa Fe, 314 U.S. at 348). Thus, according to the Tenth Circuit, because the Surveyor-General had no authority to extinguish aboriginal title, his belief as to vacancy of the lands is irrelevant. See Pueblo of Jemez v. United States, 790 F.3d at 1164.

         The United States' argument that the 1860 Act evidenced Congressional intent to effect “absolute and unconditional” transfer not subject to preexisting interests also failed to persuade the Tenth Circuit, because, according to the Tenth Circuit, “the [Supreme] Court has never held that a grant needs to contain specific language stating the land remains subject to aboriginal title.” Pueblo of Jemez v. United States, 790 F.3d at 1164. Instead, according to the Tenth Circuit, the Supreme Court has repeatedly concluded that “language [is] required in the grant to clearly show Congress's intent to extinguish aboriginal title.” 790 F.3d at 1164. The United States' argument fails, therefore, because the Tenth Circuit “can discern no such language or intent in the 1860 Act.” Pueblo of Jemez v. United States, 790 F.3d at 1164.

         In addressing the United States' argument that the Baca heirs' use of the Valles Caldera is a cloud on title sufficient to trigger accrual against the United States in 1860, the Tenth Circuit counters that simultaneous occupancy and use of land pursuant to fee title, and aboriginal title, can occur, because the nature of Indian occupancy differs significantly from non-Indian settlers' occupancy. See Pueblo of Jemez v. United States, 790 F.3d 1143 at 1165. The Tenth Circuit highlights such disparate use when it states that

it is easy to see how the Surveyor General may have mistakenly believed the lands were vacant even if they were being used by the Jemez for hunting, fishing, and other such activities. Similarly, it is also easy to see how a peaceful and private Indian pueblo might have used portions of this large area of land for its traditional purposes while one agreeable rancher was using portions of it for grazing livestock.

Pueblo of Jemez v. United States, 790 F.3d at 1165. The Tenth Circuit notes that the Complaint makes such allegations and, therefore, the Tenth Circuit concludes that one cannot say that accrual necessarily occurred in 1860. See Pueblo of Jemez v. United States, 790 F.3d at 1165.

         The Tenth Circuit notes, however, that, to establish on remand its right of aboriginal occupancy to the Valles Caldera “in 1860 and thereafter, ” Jemez Pueblo “must show ‘actual, exclusive, and continuous use and occupancy for a long time.'” 790 F.3d at 1165-66 (quoting Native Vill. of Eyak v. Blank, 688 F.3d 619, 622 (9th Cir. 2012)). Significantly, according to the Tenth Circuit, the “exclusive” prong of the test is relevant only to the exclusion of other Indian groups and, thus, the Bacas' use does not, as the United States' contends, cloud this prong. See Pueblo of Jemez v. United States, 790 F.3d at 1166. As to the “actual and continuous use” requirement, the Tenth Circuit states that Jemez Pueblo

must show, as it alleges in its Complaint, that the Jemez people have continued for hundreds of years to use the Valles Caldera for traditional purposes, including hunting, grazing of livestock, gathering of medicine and of food for subsistence, and the like. As the cases make clear, if there was actually substantial interference by others with these traditional uses before 1946, the Jemez Pueblo will not be able to establish aboriginal title. In that circumstance, moreover, the Pueblo would be barred by the ICCA statute of limitations for failing to bring a claim before the ICC.

790 F.3d at 1166. According to the Tenth Circuit, such a determination is necessarily a factual question. See 790 F.3d at 1166.

         The Tenth Circuit notes that gradual taking by the United States can extinguish aboriginal title. See 790 F.3d at 1166 (citing United States v. Pueblo of San Ildefonso, 513 F.2d at 1393 (“The Court of Claims' decision in [United States v.]Pueblo of San Ildefonso . . . is illustrative of a situation in which white settlement and use, authorized by the federal government . . . brought about a pre-1946 claim against the United States for failure to protect aboriginal title.”)). The Tenth Circuit notes that, in the Zia I-IV litigation, Jemez Pueblo advanced a gradual taking theory when it “asserted that the United States owed [the Pueblos of Jemez, Zia, and Santa Ana] compensation for having extinguished their aboriginal titles as a matter of fact over time by interfering with their native use and occupancy.” Pueblo of Jemez v. United States, 790 F.3d 1143 at 1167. In analyzing the Zia I-IV litigation, the Tenth Circuit agreed with the Court of Claims' finding that the creation of the Jemez Forest Reserve “and other conduct of the government sufficiently ...


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