Amicus Curiae Brief — Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana

| Office-Supreme Court, US,

FILED

NOV 21 1984

No. 84-262 _

a ... a me L. STEVAS,

-<_ CLERK

IN THE -

Supreme Court of the United States

October Term, 1984

4B

MOUNTAIN STATES TELEPHONE AND

TELEGRAPH COMPANY,

Petitioner,

Vv.

PUEBLO OF SANTA ANA,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE

STATE OF NEW MEXICO IN SUPPORT

OF MOUNTAIN STATES TELEPHONE

AND TELEGRAPH COMPANY

PAUL BARDACKE

Attorney General of New Mexico

CHARLOTTE URAM

BRUCE THOMPSON

Assistant Attorneys General

Post Office Drawer 1508

Santa Fe, New Mexico 87504-1508

(505) 827-6000

HUGH W. PARRY

Special Assistant Attorney General

New Mexico State Highway Dept.

Attorneys for the State of New

Mexico, amicus curiae

November 21, 1984

VERGARA PRINTING CO. + SANTA FE, NEW MEXICO

TABLE OF CONTENTS

Page

TABLE OF ALTORREE UES 2 ccc ccc ccc cccccccecs il

STATEMENT OF INTEREST..................ccceece- 2

SUMMARY OF ARGUMENT......................4... 3

ARGUMENT

IN LIGHT OF THE PLAIN LANGUAGE OF

SECTION 17, THE HISTORY OF THE

ASSIMILATIONIST PERIOD DURING WHICH

THE STATUTE WAS PASSED, AND THE

CONTEMPORANEOUS AND LONG-STANDING

ADMINISTRATIVE INTERPRETATION OF THE

STATUTE, THE CORRECT INTERPRETATION

OF SECTION 17 OF THE PUEBLO LANDS ACT

IS THAT IT ALLOWED PUEBLO INDIANS TO

CONVEY LANDS VOLUNTARILY, SUBJECT

TO THE APPROVAL OF THE SECRETARY OF

5 06 6.0 500005 Cebd MENS O66 beeedcseese 3

DE ctunaceevadbucneedeneacubieedsouseaed 8

TABLE OF AUTHORITIES

Cases: Page

Covelo Indian Community v. Watt,

531 F Saw. SES GDA. THEE « oc oveesvsecteswwn 5

McDonald v. Thompson,

Ck eee ee 4

Montana v. United States,

GIO ODD. SEO C Rees 0 ob os cstesschandaeeweeeee 6

Pueblo of Sandia v. New Mexico

Highway Commission, et al.,

No. 82-1522C (D.N.M., filed June 13,

SUD occscccsesedsevennenee deen ees: «ae 2

Solem v. Bartlett,

oe) ee eS ae ee 6

Udall v. Tallman,

FD Ws BCR ce 0c ccctdécessveséseesevueeen 5

United States v. Candelaria,

SUG Was Ge COPE: 6.6. 006 60000085804 5er eee 6

Statutes:

2D ULE. GS FSET occ cctcuscndéesdekseeee 2

BT BEE oc occ vvcesseedusseeesee eee 6

Be Wi Ne 0 60.0060 008600e500sebens eee 6

BP Ws Is ov 00000 eceeendeend ss eba8eseeee 6

Pueblo Lands Act of June 7, 1924

GaP ED 6 0o00d edd 6 eee Sesekeeee passim

Indian Reorganization Act of

Seay Gs PU PE WE ic o's oo ce be ceccsuceseunel 6

General Allotment Act of 1887,

i, Ties EP bobs node db eccteccauceuuenene 6

Appropriations Act of March 3,

mw § 8S | § ere er 7

Appropriations Act of June 30,

ON |) eee ee 7

Act of March 3, 1921, ch. 119,

$1,41 Stat. 1225 ....

Other Authorities Cited:

Felix Cohen’s Handbook of

Federal Indian Law

(1982 ed.) pp. 127-134

Seema eeeee@ese @2aeeegen 4064808 ee 6 OG

No. 84-262

IN THE

Supreme Cmeat of the United States

October Term, 1984

MOUNTAIN STATES TELEPHONE AND

TELEGRAPH COMPANY,

Petitioner,

v.

PUEBLO OF SANTA ANA,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE

STATE OF NEW MEXICO IN SUPPORT

OF MOUNTAIN STATES TELEPHONE

AND TELEGRAPH COMPANY

The State of New Mexico files this brief amicus curiae in

support of Mountain States Telephone and Telegraph Company

pursuant to Rule 36 of the Supreme Court Rules.

2

STATEMENT OF INTEREST

The State of New Mexico acquired one right-of-way from the

Sandia Pueblo pursuant to Section 17 of the Pueblo Lands Act

of June 7, 1924, 43 Stat. 636 (‘Section 17”), and a second

right-of-way from the Santa Ana Pueblo, apparently pursuant to

Section 17. The State acquired these rights-of-way to construct

United States Highway 85, a Federal Aid Primary Highway. See,

23 U.S.C. 8§ 103-157. U.S. 85 is a major highway paralleling In-

terstate 25, providing access to land near the Interstate. Prior to

the construction of Interstate 25, U.S. 85 was the principal

north-south highway connecting New Mexico’s largest city,

Albuquerque, to the capital in Santa Fe. The State rights-of-way

acquired across the Santa Ana and Sandia Pueblos were ap-

proved by the Secretary of the Interior on March 13, 1926 and

March 29, 1928, respectively.

If this Court holds that rights-of-way acquired by Mountain

States pursuant to Section 17 are invalid, the State faces the

possibility of losing its existing rights-of-way. The Sandia

Pueblo has already sued the State of New Mexico seeking to

eject the State from 8 miles of U.S. 85 and to recover trespass

damages of $150,000. The Sandia Pueblo cited the District

Court’s decision in the present case as the basis for the eject-

ment action. Pueblo of Sandia v. New Mexico Highway Com-

mission, et al., No. 82-1522C (D.N.M., filed June 13, 1983).

That case is in abeyance pending the decision of this Court.

The State has already had to delay needed road resurfacing

work on U.S. 85 because of pending litigation over its rights-

of-way.

If the Court rules for the Pueblo, the State may find itself

with a multimillion dollar highway leading up to and out of

these Pueblos and no right-of-way connecting these highways.

The State would have to negotiate a reasonable settlement to

re-acquire the highway built across the Pueblos which may not

be possible.

— or

3

SUMMARY OF ARGUMENT

Section 17 of the Pueblo Lands Act was passed at a time

when Congress’ policy toward Indians was to attempt to assimi-

late Indians into the non-Indian society. Section 17, which in

part allowed voluntary transfers of Pueblo lands subject to the

approval of the Secretary of the Interior, was consistent with

the policies of the time. Many entities, including the State of

New Mexico, purchased rights-of-way in good faith from the

Pueblos. Those purchases were approved by the Secretary

based on the clear language of Section 17. The validity of those

rights-of-way should be upheld.

ARGUMENT

IN LIGHT OF THE PLAIN LANGUAGE OF SEC-

TION 17, THE HISTORY OF THE ASSIMILATION-

IST PERIOD DURING WHICH THE STATUTE

WAS PASSED, AND THE CONTEMPORANEOUS

AND LONG-STANDING ADMINISTRATIVE IN-

TERPRETATION OF THE STATUTE, THE COR-

RECT INTERPRETATION OF SECTION 17 OF

THE PUEBLO LANDS ACT IS THAT IT ALLOWED

PUEBLO INDIANS TO CONVEY LANDS VOLUN-

TARILY, SUBJECT TO THE APPROVAL OF THE

SECRETARY OF THE INTERIOR.

Section 17 of the Pueblo Lands Act provides:

No right, title, or interest in or to the lands of

the Pueblo Indians of New Mexico to which

their title has not been extinguished as hereinbe-

fore determined shall not hereafter be acquired

or initiated by virtue of the laws of the State of

New Mexico, or in any other manner except as

may hereaiter be provided by Congress, and no

sale, grant, lease of any character, or other con-

veyance of lands, or any title or claim thereto,

4

‘ made by any Pueblo as a community, or any

Pueblo Indian living in a community of Pueblo

Indians, in the State of New Mexico, shall be of

any validity in law or in equity unless the same

be first approved by the Secretary of the In-

terior.

This statute on its face has two parts. The first provides

for involuntary transfers of Pueblo land. The second provides

for voluntary transfers of Pueblo land. Under the first part of

Section 17 one may not acquire lands from a Pueblo without

an act of Congress. The second part of Section 17 is an act of

Congress validating voluntary transfers of Pueblo land by sale,

grant, lease or conveyance if approved by the Secretary of the

Interior.

The Pueblo of Santa Ana places a different interpretation on

Section 17. The Pueblo interprets Section 17 to prohibit all

transfers of Pueblo lands unless Congress has approved the

method for such transfer. The second portion of Section 17 is

claimed by the Pueblo to place an additional restriction on any

congressionally approved transfer of Pueblo land. Any transfer

of Pueblo land pursuant to an act of Congress would be invalid

unless approved by the Secretary of the Interior. Brief of

Respondent in Opposition to Petition for Certiorari at 13-14.

Under the Pueblo’s interpretation of Section 17, an act of

Congress transferring Pueblo lands would be without effect

unless approved by the Secretary of the Interior.

There is no reason to believe Congress intended to iimit its

future legislative authority to deal with the Pueblo Indians by

allowing the Secretary of the Interior to approve or disapprove

congressional action. Furthermore, if in enacting Section 17,

Congress only wanted to preclude all future transfers of Pueblo

lands except as approved by Congress, there was no need for

the second half of Section 17. Statutes shouid be read to give

effect to all parts of the statute. McDonald v. Thompson, 305

U.S. 263, 266 (1938). The only interpretation of Section 17

that gives effect to all parts of the statute is one which inter-

prets the second half of Section 17 to allow voluntary transfers

subject to Secretarial approval.

The interpretation of Section 17 that follows from the clear

statutory language is the interpretation used consistently by the

United States since the statute’s enactment. The Bureau of

Indian Affairs’ administrative use of this interpretation is well

documented by Mountain States. Long-standing administrative

interpretations are entitled to deference.! Udall v. Tallman,

380 U.S. 1, 16 (1965). As recently as June 2, 1982, the date of

the District Court decision in this case, the Solicitor’s Office of

the Department of the Interior refused to prosecute trespass

claims on behalf of the Pueblos based on rights-of-way acquired

pursuant to Section 17. Covelo Indian Community v. Watt,

551 F.Supp. 366, 374 (D.D.C. 1982).

Not only the language of Section 17 and the long-standing

administrative interpretation but also history supports the

interpretation that Section 17 was intended to allow voluntary

transfers of Pueblo land. The 1924 Pueblo Lands Act was

adopted during a period when the United States was attempting

to break up reservations and bring Indians into the mainstream

of American life. The years 1887 through 1928 are recognized

as the period.of assimilation. Felix Cohen’s Handbook of Fed-

eral Indian Law (1982 ed.) pp. 127-134. Placing Section 17 in

the context of assimilation shows that the interpretation ad-

vanced by Mountain States is consistent with the then-existing

1 The Tenth Circuit, without specifically stating that the administrative

construction of Section 17 by the agency charged with administering the

Act was to allow voluntary transfers, did determine that it would not give

any weight to the B.I.A.’s construction because that construction was

contrary to what the Tenth Circuit felt was clear language contrary to

the interpretation of the B.A.

6

congressional policy. To assert that federal policy toward

Indians has always been one of protecting Indian possessory

rights and that Section 17 extended and confirmed this policy

to tie Pueblos is to misunderstand the assimilation period.2

The General Allotment Act of 1887, ch. 119, 24 Stat. 388

(1887) (codified as amended at 25 U.S.C. 88 331-334, 339, 341,

342, 348, 349, and 381), marked the beginning of the period of

assimilation. Reservations were partitioned by the Presidert and

individual allotments given to tribal members. 25 U.S.C. 8331.

Allotments were held in trust by the United States for the

individual Indians during a period of incompetency and then

patented by the United States in fee to the individual Indian

who was then free to alienate the land. 25 U.S.C. § 348.

The practice of issuing allotments and subsequent fee patents

was not ended by Congress until the Indian Reorganization Act

of 1934, ch. 576, 48 Stat. 984 (codified as amended at 25

U.S.C. 8 461-479). Congressional policy under the General

Allotment Act, which was in effect in 1924 at the time of the

enactment of Section 17, was clearly one of allowing reser-

vation land to pass out of tribal control. Solem v. Bartlett,

—_US.__, 104 S.Ct. 1161, 1164 (1984); Montana v. United

States, 450 U.S. 544, 559 n.9 (1981).

The interpretation of Section 17 advanced by Mountain

States Telephone and Telegraph, which would allow Pueblos to

voluntarily transfer their land subject to the approval of the

Secretary of the Interior, is consistent with the assimilationist

2 The Indian Non-Intercourse Act 25 U.S.C. $ 177, which has been made

applicable to the Pueblos, United States v. Candelaria, 271 US. 432

(1926), provides that Indian title can only be extinguished by an act of

the sovereign. Since the second half of Section 17 represents an act of the

sovereign allowing title to be extinguished, it is not in conflict with the

Non-Intercourse Act or the policy of that Act.

7

policies of the time. The interpretation of Mountain States

regarding Section 17 is consistent with the plain language of the

statute, and long-standing administrative interpretation. Any

other interpretation puts into doubt land titles acquired and

held in good faith based on conveyances made by the Pueblos

and approved by the Secretary of the Interior. Any other inter-

pretation harms those who did not acquire title pursuant to

Section 17 but who have relied or the existence of highways,

railroads, and utilities built on rights-of-way acquired under

the Act.

3 The General Allotment Act represents only one manifestation of con-

gressional policy to remove any special status for Indians and Indian land

during the period of assimilation. E.g., Appropriations Act of March 3,

1901, ch. 832, $ 3, 31 Stat. 1058, 108384 (25 U.S.C. 8 319, 357) (au-

thorizing the Secretary of Interior to grant rights of way across tribal and

allotted lands for telephone and telegraph lines and offices and subjecting

allotted lands to condemnation pursuant to the law of the state or terri-

tory); Appropriations Act of June 30, 1919, ch. 4, § 26, 41 Stat. 3, 32

(codified as amended at 25 U.S.C. § 399) (allowing the Secretary to issue

mineral leases on tribal lands without tribal approval); Act of March 3,

1921, ch. 119, $1, 41 Stat. 1225, 1232 (25 U.S.C. $393) (allowing lease

of allotments subject only to approval of Indian agent, not Secretary).

Amicus does not contend that all acts of Congress related to Indians dur-

ing the period 1889 through 1928 were assimilationist. It is clear that

Mountain State’s interpretation of Section 17 is consistent with Congress’

policy toward Indians during the assimilationist period and with the scope

of Congress’ perceived duties to tribes.

8

CONCLUSION

Amicus respectfully urges that the decision of the Tenth

Circuit be reversed and the case remanded.

November 21, 1984

Respectfully submitted,

PAUL BARDACKE

Attorney General of New Mexico

CHARLOTTE URAM

BRUCE THOMPSON

Assistant Attorneys General

Post Office Drawer 1508

Santa Fe, New Mexico 87504-1508

(505) 827 -6000

HUGH W. PARRY

Special Assistant Attorney General

New Mexico State Highway Department

P.O. Drawer 1149

Santa Fe, New Mexico 87504-1149

Attorneys for the State of New Mexico,

amicus curiae