United States District Court, D. New Mexico
PUEBLO OF JEMEZ, a federally recognized Indian tribe, Plaintiff,
UNITED STATES OF AMERICA, Defendant, and NEW MEXICO GAS COMPANY, Defendant-in-Intervention.
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
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
R. Allen Elizabeth Reitzel Miller Stratvert P.A. Albuquerque,
New Mexico Attorneys for the Intervenor Defendant
MEMORANDUM OPINION AND ORDER
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. 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.
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
The Jemez Pueblo.
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. 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
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.” . . . 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.
Treaty of Guadalupe Hidalgo and the Baca Land
1848, the United States signed the Treaty of Guadalupe
Hidalgo, thereby ending the Mexican-American war and
acquiring the territory of New Mexico. 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.
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.
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.
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.
The Pueblo's Claims Before the Indian Claims
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.” 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)).
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.
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.
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.
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.
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.
Valles Caldera Preservation Act.
25, 2000, then-President Clinton signed the Valles Caldera
Preservation Act of 2000, 16 U.S.C. §§ 698v-698v-10
(repealed 2014)(“Preservation Act”),
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 -- “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.
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.
The Motion to Dismiss.
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).
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).
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)).
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.
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.
Jemez Pueblo's Response.
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.
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 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.
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
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
The United States' Reply.
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
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.
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).
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.”)).
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.
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.
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
Judge Brack's Decision.
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,
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.
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.
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.
Arguments on Appeal.
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
Jemez Pueblo's Appellant Brief.
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
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.
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.
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
The United States' Response.
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.
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.”)).
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.”)).
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.
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.
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.
Jemez Pueblo's Reply.
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.
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.
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. 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.
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.
The Tenth Circuit's Decision.
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.
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.” Pueblo of Jemez v.
United States, 790 F.3d at 1162.
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.
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.
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.
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
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
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.
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