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

| Office-Supreme Court, U.S.

An, FILED

No. 84-262° JAN 7 1985

IN THE L

Supreme Court of the Gnited States

OCTOBER TERM, 1984

MOUNTAIN STATES TELEPHONE & TELEGRAPH COMPANY,

Petitioner,

VS.

PUEBLO OF SANTA ANA,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Tenth Circuit

BRIEF AMICI CURIAE OF THE ALL INDIAN

PUEBLO COUNCIL, PUEBLO OF ISLETA,

PUEBLO OF SANDIA, PUEBLO OF SANTA

CLARA, PUEBLO OF SAN JUAN, PUEBLO OF

LAGUNA, AND PUEBLO OF JEMEZ, IN SUPPORT

OF THE POSITION OF THE RESPONDENT

L. LAMAR PARRISH, ESQ. AND

CATHERINE BAKER STETSON, ATTORNEY

USSERY & PARRISH, P.A.

P. O. Box 487

Albuquerque, New Mexico 87103

Attorneys for Amici Curiae,

All Indian Pueblo Council, Pueblo of

Isleta, Pueblo of Sandia, Pueblo of

Santa Clara, Pueblo of San Juan,

Pueblo of Laguna, and Pueblo of Jemez

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

d{

i

QUESTION PRESENTED

Did Section 17 of the Pueblo Lands Act of June 7, 1924,

permit New Mexico Pueblos, with the approval of Secretary

of Interior, to alienate or convey interests in their land

without the sanction of a further Congressional enactment,

and did Section 17 authorize the Secretary of Interior to

approve such alienations or conveyances?

TABLE OF CONTENTS

QUESTION PRESENTED .........- eee eee e cece reece

TABLE OF COMTENTB 2. ccccccccocsccccesessesnenees

TABLE OF AUTHORITIES ......ccccccccccccccccccess

INTEREST OF AMICI CURIAE .......ceeceeeeeeceees

SUMMARY OF ARGUMENT .......--- eee eeeeeeeeees on

ARGUMENT ...cccccessecccccesseseueanene

SECTION 17 OF THE PUEBLO LANDS ACT DID NOT

PERMIT NEW MEXICO PUEBLOS TO ALIENATE OR

CONVEY INTEREST IN THEIR LANDS AND DID NOT

AUTHORIZE THE SECRETARY OF INTERIOR TO AP-

PROVE SUCH ALIENATIONS OR CONVEYANCES. .. 4

A. Historically, the Pueblo Indians were unable to

alienate their land without governmental consent

m bh = Bf: e.

and supervision. ............cccccecescccees 5

B. Section 17 parallels the Non-Intercourse Act in

prohibiting alienation of tribal lands without

Congressional action. .....-..-...+-+eeeeees 7

C. The two clauses of Section 17 are conjunctive,

complementary, and clear. .............++++: i)

D. Section 17 does not make Secretarial approval

the only prerequisite to a valid conveyance of

Pueblo land, nor does Section 17 authorize the

Secretary to approve such conveyances. ...... 11

E. Section 17 required additional Congressional ac-

tion for the acquisition of any right, title, or

interest in and to Pueblo land. .............. 15

F. The administrative interpretation contradicts

both the language and purpose of the Pueblo

Lands Act and is a violation of the trust respon-

sibility of the United States. ................ 16

G. Section 17 is not limited to rights-of-way. .... 19

COMCLIUGBION 2. cc cccccccuccccescoeuenseueeenne 20

APPRMDOCES 2... ccccccscecessceusenne ane la

APPENMDER 1... cccvccsccccesucenses ean la

Appear 2... ..cccccccccccseeuseeeeee 9a

ili

TABLE OF AUTHORITIES

CASES CITED Page

Alonzo v. United States, 249 F.2d 189 (10th Cir. 1957),

cert. denied, 355 U.S. 940 (1958). ............... x

Bryan v. Itasca Cty., Minnesota, 426 U.S. 373 (1976) 10, 14

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). 18

DeCoteau v. District County Court, 420 U.S. 425 (1975) 11

Federal Maritime Commission v. Seatrain Lines, Inc.,

CE 16

Mohegan Tribe v. State of Connecticut, 638 F.2d 612 (2nd

Cir, 1981), cert. denied, 452 U.S. 968 (1981) .... 14, 17

Morrison v. Work, 266 U.S. 481 (1924). .............. 18

Navajo Tribe of Indians v. United States, 364 F.2d 320

EEE 18

Northern Cheyenne Tribe v. Hollowbreath, 425 U.S. 649

Tees cccceccececcececesccceeccs 10

Oneida Indian Nation v. County of Oneida, 414 US. 661

ST MEME GU Sac ae cédecevececcecsvecececs 14

Plateau, Inc. v. Department of Interior, 603 F.2d 161

EE 16

Pueblo of Isleta v. James Watt, et al., No. CIV-82-1504C

re eee ii in phe ee ses 19

Pueblo of Sandia v. James Watt, et al., No. CIV-82-1536M

eee cc cwewsscdcccccececccces 19

Pueblo of Santa Ana v. Mountain States Telephone &

Telegraph Co., 734 F.2d 1402 (10th Cir. 1984) ..... 5, 6

Rice v. Rehner, U.S. —_., 103 S.Ct. 3291

EEE Sho cbe saccade eccccccccccececes 10-11

S.E.C. v. Sloan, 436 U.S. 103 (1978) ................ 16

Seminole Nation v. United States, 316 U.S. 286

TRG ced asepecenecdccecsccccccces 17, 18

Southern Pacific Transp. Co. v. Watt, 700 F.2d 550 (9th

EE ESE 13, 14

State of New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir.

Ee 6

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) . 10

iv

Table of Authorities (Continued)

Page

U.S. v. Candelaria, 271 U.S. 482 (1926) ............. 5, 7

U.S. v. Joseph, 94 U.S. 614 (1876) .......--- cece eee, 6

U.S. v. Kagama 118 U.S. 375 (1886) .........--0 eee 18

U.S. v. Lucero, 1 NM 422 (1869). .............. ayrae re 6

U.S. v. Sandoval, 231 U.S. 28 (1913). .........-554. 6, 20

U.S. v. Santa Fe Pac. R. Co., 314 U.S. 339 (1941), reh.

Pe, nono Kee cecescecvcevedvesestuneses 10

U.S. v. University of New Mexico, 731 F.2d 703 (10th Cir.

— rroerrererrcry Tor TT tt tT 6

U.S. on behalf of the Pueblos of Acoma, Isleta, Jemez,

Laguna, Picuris, Pojoaque, San Felipe, San Ildefon-

so, San Juan, Sandia, Santa Clara, Santo Domi-

ngo, Tesuque, Taos, and Zia vs. Mountain States

Telephone and Telegraph Company and Continental

Telephone Company of the West, No. CIV-82-1513C

SEs cicdcicnevebundaddegensendseweneacess 17

U.S. on behalf of the Pueblos of Santa Clara and San

Ildefonso vs. Jemez Mountain Electric Cooperative,

No. CIV-82-1482 M (D.N.M.) .........eeeeeeees 17

Zuber v. Allen, 396 U.S. 168 (1969) ............-055- 16

FEDERAL STATUTES AND REGULATIONS CITED

Indian Trade and Intercourse Act of 1834, 4 Stat. 729, 25 |

ep EL errr rerrrr rr Tre passim

Treaty of Guadalupe-Hidalgo, Act of February 2, 1848, 9

EE nc os aap dngs be RRUeENeEdasetnseens

5

Act of February 27, 1851, ch. 14, 9 Stat. 587 ......... 6

Act of March 3, 1873, ch. 120, 16 Stat. 566, 25 USC 71. 8

Act of March 2, 1899, ch. 374, 30 Stat. 990, 25 USC

Ss onc enon rae ade keeeneeeeNeeeeuey 8, 14

Act of March 3, 1901, ch. 832, 31 Stat. 1083, 25 USC 311, -

2 Te en ieeaere reese eneens

Appropriations Act of March 3, 1905, 33 Stat. 1048, ch.

EE 6 0sK 0 Keun ieee be nscbksnceskecedeseduanses 6

Vv

Table of Authorities (Continued)

Page

New Mexico Enabling Act of June 20, 1910, ch. 310, 36

ME WE Saou ened ae veby ue te oe 6, 15

Act of June 7, 1924, ch. 331 (Pueblo Lands Act) 42 Stat.

NEL atdedadubliisuuuccndn eae isk cca ok passim

Act of May 10, 1926, ch. 282, 44 Stat. 498.......... 16, 19

Act of April 21, 1928, ch. 400, 45 Stat. 442, 25 USC

Mr cthnGu vaueuabuseleckacetaubcecassser. 14, 16, 19

Act of February 5, 1948, ch. 45, 62 Stat. 17-18, 25 USC

ME Coit eees deduct oeced ee ncrcécuse ca 14, 16, 19

United States Code, Title 25 ....................... 13

SD UGC Bection Sil, of o0g. 2... ccc ccccccccccccece 13

a 13

BP Cs NEED ov vcccdcccncusescccciccccescces 13

Sp Ces I I ind ei oc eecaeesewceks Kodecwdeen 13

cern cacndeitetion pi desead he 13

25 USC Section 396a-396g ............. 0. cece eee eee 13

Oe gc EE a ld ol 13

I i at etl tee Bul i 13

EE RR be es ee 13

25 USC Section 408-402a .... occ cece ccc ccccccccccs 13

it at a a 13

25 USC Section 403b-408¢ ......... cece cece cece 13

EARL Ep BR re 13

ye I i i al 13

ER en ne 13

Pee 13

25 CFR Subchapters H andI ...................... 9

MISCELLANEOUS

F. Cohen, Handbook of Federal Indian Law (1942) ... 5

Pueblo Indian Lands: Hearings on S. 3865 and S. 4223

Before a SubComm. of the Senate Comm. on Public

Lands and Surveys, 67th Cong. 4th Sess. (1923) . 13

1

BRIEF AMICI CURIAE OF ALL INDIAN PUEBLO

COUNCIL, PUEBLO OF ISLETA, PUEBLO OF SANDIA,

PUEBLO OF SANTA CLARA, PUEBLO OF SAN JUAN,

PUEBLO OF LAGUNA, AND PUEBLO OF JEMEZ

The amici curiae, the All Indian Pueblo Council (here-

inafter “AIPC”) and the Pueblo of Isleta, Pueblo of Sandia,

Pueblo of Santa Clara, Pueblo of San Juan, Pueblo of

Laguna, and Pueblo of Jemez (hereinafter “Pueblos”) re-

spectfully request that this Court affirm the decision of the

United States Court of Appeals for the Tenth Circuit, de-

claring invalid certain rights-of-way approved by the Secre-

tary of Interior pursuant to Section 17 of the Pueblo Lands

Act of June 7, 1924, 43 Stat. 636 (hereinafter referred to as

“the Act” or “the Pueblo Lands Act.”) Petitioner and Ke-

spondent have consented in writing to the filing of this brief

in support of Respondent.

INTEREST OF THE AMICI CURIAE

All Indian Pueblo Council (“AIPC”) is a non-profit corpo-

ration composed of and organized to represent eighteen of

the nineteen Pueblo Indian tribes in the State of New Mex-

ico. The Pueblos of Isleta, Sandia, Santa Clara, San Juan,

Laguna, and Jemez (“the Pueblos”) are individual,

federally-recognized Indian tribes located within the exteri-

or boundaries of the State of New Mexico. The Pueblos were

the beneficiaries of the Pueblo Lands Act, the interpreta-

tion and application of which is at issue.

The decision below, by invalidating rights-of-way ob-

tained under Section 17 (hereinafter “Section 17”) of the

Pueblo Lands Act, confirmed the Pueblos’ contention that

such rights-of-way were in trespass. It further confirmed

hundreds of years of consistent legislation, custom, and case

law which protect the Pueblos in their capacity as wards of

their fiduciaries, the United States of America and earlier

2

sovereigns. A reversal of the decision below would throw the

status of Pueblo lands into question, once again recreating

the sort of turmoil which the Pueblo Lands Act was specifi-

cally intended to remedy.

Each of the Pueblos has challenged the validity of Section

17 rights-of-way across its lands. While a majority of the

resultant lawsuits have been settled or dismissed or are

being settled, a few are in an abated status, pending a

decision by this Court.! The decision in the instant case will

affect the Pueblos’ interests in such cases. More impor-

tantly, the decision in the instant case may have a profound

effect on the nature, scope, and extent of Pueblo control over

and title to tribal lands in the future.

SUMMARY OF ARGUMENT

The primary issue in this case is the effect of Section 17 of

the Pueblo Lands Act. This Court's ultimate resolution of

the issue is critical, less because of its resolution of past

disputes than because of the profound impact it will have on

the nature and status of all Pueblo lands and, therefore, on

the very future of the Pueblos themselves.

Past trespass damages, whether awarded or denied, will

not have a very significant effect on the Petitioner, the

rights-of-way grantees, or any of the Pueblos; such damages

are generally nominal, at best. For this Court to find that all

Section 17 conveyances were invalid would not have the

effect of unsettling of land titles, as most Section 17 grantees

‘Of the sixteen lawsuits named in Appendix F to the Petition for

Certiorari, Nos. 13 and 16 were erroneously listed and do not involve

Section 17 trespasses. Of the remaining fourteen suits, nine are

settled and dismissed or are being settled (Nos. 1, 3, 4, 6, 7, 3, 9, 12,

and 14). The only ones remaining to be litigated are two against the

United States (Bureau of Reclamation), two against the amicus Rail-

road, and one against the New Mexico State Highway Commission.

3

have never gotten title to Pueblo land but have only received

permission to cross or use such lands for specific purposes.

A decision that Section 17 conveyances are invalid would

not result in the removal of utility lines from the contested

rights-of-way, and would not interrupt train service or inter-

fere with transportation and commerce in the Southwest.

Rather, the Petitioner and the other grantees of Section 17

rights-of-way would merely be required to make proper

application to the local Department of Interior agency office

for valid rights-of-way. Such are granted regularly 2°} as a

matter of course. The cost of rights-of-way is generally

based on figures and appraisals made by a United States

government agency, and negotiations and final transactions

are overseen by and subject to approval of the Secretary of

Interior. The inconvenience to Petitioner and to amicus

entities exists, but the chaos and deprivation described in

the briefs filed heretofore are fantasized.

For this Court to rule, however, that Section 17 permits

the Pueblo tribes to sell, grant, and convey their lands,

without statutorily-designated Federal supervision, would

result in chaos and disruption in New Mexico virtually

identical to that existing in the early part of this century.

Such a ruling would place the Pueblo Indians of New Mexico

in a status unlike that of any other of the federally-recog-

nized tribes in the United States, all of which are required to

go through Congressionally mandated procedures and

Federal regulations to grant rights-of-way and other con-

veyances, and none of which are permitted to sell their

lands. Such a decision by this Court would exempt the

Pueblo Indians of New Mexico from the Federal require-

ments and would thus strip them of the Federal protection

experienced by other tribes. In addition, it would reward

the United States Government for breaching its fiduciary

obligation as trustee to the Pueblos, for the United States

4

has dealt with Pueblo lands to its own benefit and in deroga-

tion of its responsibility as protector of such lands.

ARGUMENT

Section 17 of the Pueblo Lands Act did not periait New

Mexico Pueblos to alienate or convey interest in their

lands and did not authorize the Secretary of Interior to

approve such alienations or conveyances.

Introduction

The first sixteen (16) sections of the Pueblo Lands Act

dealt with the procedures for quieting title to lands in New

Mexico within the Pueblo Indian land grants. Section 17

looked to the future:

ight, title, or interest in or to the lands of the

peaks teens of New Mexico to which their title has

not been extinguished as hereinbefore determined

shall hereafter be acquired or initiated by virtue of the

laws of the State of New Mexico, or in any other man-

ner except as may hereafter be provided by Congress,

and no sale, grant, lease of any character, or other

conveyance of lands, or any title or claim thereto 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 Interior.

Construction of this single sentence is the central! issue,

not because it is ambiguous but because it has been wrong-

fully and abusively applied. The language did not authorize

Petitioner's predecessors in interest to acquire Pueblo land,

so they stretched the language to imply such permission.

Now that Petitioner has been challenged, it seeks to justify

5

its position through a creative but perverse construction of

the language of Section 17.

There is no need to second guess the Congress which

wrote the sentence, there is no need to “imply” a meaning,

and there is no need to search through a virtually non-

existent legislative history and contemporaneous letters.

The sentence, indeed, “means exactly what it says,” as the

Tenth Circuit recognized. Pueblo of Santa Ana v. Mountain

States Telephone & Telegraph Co., 734 F.2d 1402, 1406 (10th

Cir. 1984). After discussing the procedures for quieting title

to the Pueblo lands, the Pueblo Lands Act, in Section 17,

provided that no right, title, or interest of any kind to Pueblo

lands would be acquired in any way except as may there-

after be provided by Congress. In addition, no voluntary

conveyances of land by any Pueblo would be valid unless

first approved by the Secretary of Interior. Section 17 con-

templated future Congressional action to provide the vehi-

cle(s) for such land conveyances, and Congress has in fact

responded with several Acts authorizing such conveyances

pursuant to statutorily-designated Federal supervision.

Section 17 itself, however, did not and does not today

provide a proper means for effecting Pueblo land

conveyances.

A. Historically, the Pueblo Indians were unable to alien-

ate their land without governmental consent and

supervision.

For three or four hundred years, the lands of the Pueblo

Indians have been protected and to some degree controlled

by the reigning sovereign. F. Cohen, Handbook of Federal

Indian Law, pp. 383-84 (1942). Under Spanish and Mexican

rule, the Pueblo Indians could alienate their lands only with

governmental consent and supervision. U.S. v. Candelaria,

271 U.S. 432, 442 (1926). When New Mexico was ceded to

the United States in 1848, the Treaty of Guadalupe-Hidalgo,

6

Act of February 2, 1848, 9 Stat. 922, guaran teed the ers

tion of existing Pueblo property rights; in other words, the

Pueblos remained wards of the sovereign and remained

unable freely to alienate their lands.

ndian Trade and Intercourse Act of 1834, 4 Stat.

| 7p, 28 UBC 177, (hereinafter “Non-Intercourse Act ) had

been passed to protect Indian land titles and to restrict

purchase of Indian lands. By the Act of February 27, 1851,

ch. 14, 9 Stat. 587, the Non-Intercourse Act was extended

to all New Mexico Indians. Pueblo of Santa Ana, supra;

United States v. University of New Mexico, 731 F.2d 703

(10th Cir. 1984); State of New Mexico v. Aamodt, 537 F.2d

1102 (10th Cir. 1975), reh. denied (1976). The Territorial

courts of New Mexico chose to treat the Pueblo Indians

differently from other Indians (U S. v. Lucero, 1 NM ae

(1869)), and the Supreme Court in U.S. v. Joseph, 94 USS.

614 (1876), acquiesced. But Congress consistently —

to the contrary, subjecting Pueblo lands to Federal contro

and taking them out of state jurisdiction. See e.g., Appropri-

ations Act of March 3, 1905, ch. 1479, 33 Stat. 1048, 1069;

New Mexico Enabling Act of June 20, 1910, ch. 310, 36 Stat.

557, 558, 560. Upon the admission of New Mexico into the

Union, the New Mexico Enabling Act in particular made it

clear that the Pueblos were “Indians,” and that their lands

were “Indian country.” That Act was sustained by the Su-

preme Court in U.S. v. Sandoval, 231 U.S. 28 (1913).

For the short period of confusion between the decision in

Joseph and the contrary Federal enactments in 1905 and

1910, the Pueblo Indians were treated by many in New

Mexico like other landowners with fee title to their land. For

three hundred years prior to 1869, however, and since 1905,

the Pueblo Indians did not have that unrestricted freedom

and were prevented from conveying their land without gov-

ernmental supervision.

7

The Pueblo Lands Act, passed to settle the confusion over

the status of Pueblo land and to quiet title, reaffirmed the

Non-Intercourse Act as applied to Pueblos, requiring

Federal guidance and approval for Pueblo conveyances to be

valid. This position was judicially sanctioned in Candelaria.

With the exception of a short, isolated period, then, the

Pueblo Indians have been unable to alienate their tribal land

without governmental supervision since the arrival of and

conquest by the Spanish in the mid-1550’s.

B. Section 17 parallels the Non-Intercourse Act in pro-

hibiting alienation of tribal lands without Con-

gressional action.

Although the history behind the inclusion of Section 17 in

the Pueblo Lands Act is meager, it does appear that this

section was intended to cover the same grounds as the Non-

Intercourse Act, though modified to apply to the unique

situation of the Pueblo Indians. The Non-Intercourse Act

was originally passed in 1834, a time during which the

United States was still signing treaties with various Indian

nations. By the time the Pueblo Lands Act had been passed,

the Pueblo Indians were treated as wards of the Federal

government and not as independent sovereigns who could

make treaties. They had patents and titles to their lands.

Disposal of the lands of a politically dependent entity would

occur not pursuant to treaty but pursuant to a Con-

gressionally mandated scheme. For this reason, the second

part of Section 17 varies in its wording from the Non-

Intercourse Act itself. The parallel remains obvious: land

conveyances by Indians were restricted.

Section 17 is altered slightly from the Non-Intercourse

Act to apy'y to the unique status of the Pueblo Indians.

Congress p ‘received that the Pueblos were different from

other tribes. They owned their land in fee; their status for

twenty-nine years had been completely different from that

8

— —_

ian tribes in that the Pueblos freely had |:

ee and the United States never — _

any treaties with the Pueblos—treaties being the — y-

ing document for conveyances made pursuant to the No

Intercourse Act.

At the time the Non-Intercourse Act was —

nations were independent sovereigns, not subjec ? oe

demnation statutes or the like. But “/t/here is as grea - =

for such protection of the Pueblos of New Mexico, \

10th Cir. 1957), cert. denied 355 U.S. 940

rin ag ye Aor conveyances at that time were voluntary

and made through a treaty, and the Secretary of Interior

was unable singlehandedly to initiate or approve Sewrary

with independent sovereign nations. The Act rhe a _

1873, ch. 120, 16 Stat. 566, 25 USC 71, prohibi

making of treaties with Indian tribes, which were no longer

recognized as independent nations.

By the time the Pueblo Lands Act was pea - —

tribes had lost physical possession of much of their ~m

through condemnation, through adverse — ,

through judgment liens and tax sales, a ie sae

conveyances, and the like. The Pueblo Lands Act at - PI a

to put an end to this, providing first that no future “ ve

in Pueblo lands would be acquired in any way ——

until Congress passed a law permitting 1t, and - ng

that Secretarial approval would be a prerequisite lor

voluntary conveyances, just as for the other tribes.

Non-Inter-

inety years between the passage of the !

a... "Act a the Pueblo Lands Act were ninety years of

2This stricture was included partially to underscore the aoe

of the time that the Act of March 2, 1899, ch. 374, 30 Stat. ne oor

311-18, did not apply to the Pueblos—thereby highlighting the

for legislation which would specifically include them.

9

intense development and change in the Federal-tribal rela-

tionship. That a treaty was required for the voluntary sale of

Indian land in 1834 and that Secretarial approval was re-

quired for the voluntary conveyance of Pueblo lands in 1924

does not negate the effect, impact, and meaning of Section

17, which deals with both voluntary and involuntary con-

veyances. The difference in the wording of the Non-Inter-

course Act and the Pueblo Lands Act is easily understand-

able in light of the history of Indian tribes in this country,

and the close parallel in wording of the two Acts illustrates

the Congressional intention in 1924 to extend the restric-

tions of the Non-Intercourse Act to the Pueblos.®

C. The two clauses of Section 17 are conjunctive, comple-

mentary, and clear.

The first clause in Section 17 expressly prohibits the

acquisition of any right, title, or interest to Pueblo lands in

any way except as Congress may provide at some time after

the enactment of the Pueblo Lands Act and includes all

conveyances, whether done under the auspices of New Mex-

ico law or otherwise’. There is no limitation as to whether

‘The statutes cited by Petitioner (Petitioner's Brief in Chief. page

30 n.23) as authorizing alienation of Indian land all require Secretarial

consent when dealing with Indian lands from 1873 on. All such

Statutes are codified, and alienation occurs pursuant to those

guidelines found in the Code of Federal Regulations. See e. g.,.25CFR

Subchapters H and I. Treaties entered into prior to 1873 generally

required the consent of the President of the United States and are not

regulated. The difference in the nature of treaties and statutes ac-

counts for the difference in their requirements.

‘Section 17 expressly referred to the laws of the State of Mexico,

whatever they might have been, in prohibiting the acquisition of title

to Pueblo lands, but conveyancing “in any manner,” involuntary or

otherwise, was proscribed. The reference was not limited to con-

demnation laws but included New Mexico tax laws. judgment lien

laws, property laws, case law, and any other law which provided or

implied that Pueblo Indians were not Indians and could alienate their

lands.

10

uisition be the result of voluntary or involuntary

= of the Pueblos, and the words “in any other ren a

should be read to mean “in any other manner” and s ou

not arbitrarily be limited, especially when to do perp

logic and the language. The second clause deals ae sone

veyances made by the Pueblos themselves. we —

veyances, however they are characterized, are in wi

out approval by the Secretary of Interior.

e sentence making up Section 17, read as a whole,

oa prohibit anyone from gaining right, title, or soa

in and to Pueblo lands in any way whatsoever, wit = :

instruction of future Congressional acts; even if a Pue :

itself were willing to convey such right, title, or poe

pursuant to such a Congressional act, Secretarial appro .

would be required. This reading of the sentence r no

strained, and it complies with the general history an eo

poses of the Act, as more fully described hereinbefore and in

the other briefs.

r way to construe a statute is to look at the

ene Touche Ross & Co. v. Redington, 442 ween

560, 568 (1979). The language of Section 17 is clear es

unambiguous. Even were it not, statutes passed = t o

benefit of Indians are to be liberally construed, with —

being resolved in their favor. Bryan v. Itasca ogy

U.S. 373, 392 (1976); Northern Cheyenne Tribe v. A

lowbreath, 425 U.S. 649, 655 n.7 (1976); U.S. pre poo tn

Pac. R. Co., 314 U.S. 339, 354 (1941), reh. denied (194 ).

This canon of construction is to be applied in wits et

with the policies which require our cou.ts to attend to the

clear words and intent of Congress. Rice v. Rehner, ——

As such, they are presumed to be voluntary; however, even mae

untary conveyances, if made by any Pueblo, would come under the

constraints of this clause.

11

U.S. —_, 103 S.Ct. 3291, 3302 (1983); DeCoteau v. District

County Court, 420 U.S. 425, 447 (1975).

Congress has expressed itself clearly in Section 17. It

truly would be unreasonable to attempt to imply Con-

gressional intent when the intent is well expressed, par-

ticularly when the resultant implication would mean that,

though Congress clearly offered protection to other tribes,

it withheld such protection from the Pueblos, abjuring its

own control in favor of the ambiguous, unrestricted au-

thority of the Secretary of Interior and his various agents.

D. Section 17 does not make Secretarial approval the

only prerequisite to a valid conveyance of Pueblo land,

nor does Section 17 authorize the Secretary to approve

such conveyances.

Section 17 provides that no sale of Pueblo land shall be

valid without Secretarial approval, but the requirement of

Secretarial approval is not the only prerequisite to a valid

conveyance of Pueblo land. Such a reading violates a pri-

mary principle of logic: that the expression of one does not

necessitate the exclusion of others. Prior Secretarial ap-

proval of a conveyance, while required, does not in and of

itself validate any conveyance of land by Pueblo Indians,

pursuant to Section 17, and there is no implication to the

contrary in the statute itself.®

Section 17 is merely a one-sentence statement of Con-

gressional policy. It contains no express authorization of

power; no procedures, requirements, or regulations to im-

plement it; and no guidelines to the Secretary as to the

"For example, a conveyance of lands by the Pueblos, to which the

Pueblos did not have title, would not be valid. even though first

approved by the Secretary of Interior. Neither would the conveyance

of land by Pueblo Indians, approved by the Secretary, if such con-

veyance were done for illegal purposes. Obviously, Secretarial ap-

proval, while required, cannot by itself validate Pueblo conveyances,

as Petitioner suggests.

12

nature, manner, scope, extent, requirements, timing, or

boundaries of his approval. Section 17 is not limited to any

designated purposes or land uses, does not specify pro-

cedures for the alienating of Pueblo land, and does not

require or even authorize the promulgation of Federal reg-

ulations. Theoretically, according to Petitioner's analysis of

Section 17, if the Secretary of Interior or one of his many

agents were to indicate in any way, including orally, that he

personally approved of conveyancing of Pueblo land, that

would legitimize and constitute approval for any future sale,

lease, or permit of Pueblo land without further ado. Com-

inon sense dictates that Congress would require more than

mere oral approval by the Secretary or one of his agents to

validate the disposal of tribal lands.

It is clear that, even contemporaneously, the need for

something other than mere undefined Secretarial approval

was clear. George A.H. Fraser, Special Assistant to the

Attorney General of the United States, charged with repre-

senting the Government before the Pueblo Lands Board, in

a letter dated February 27, 1926, to the Attorney General of

the United States, specifically acknowledged the problem:

... Section 17 does not expressly say that Pueblo

conveyances shall hereafter be valid if approved by the

Secretary, but merely that they shall not be valid un-

less so approved. Theoretically, and in fact, the Pueblo

Indians are incompetent to manage their own affairs,

and I think it is unfortunate if the Pueblo corpora-

tions—and still more the individual Indians—are now

authorized to convey, even subject to an approval,

which must usually be based on the recommendation of

some local official who may or may not be fully informed

and disinterested. (Appendix 1 to Petitioner's Brief in

Chief, p. 4a).

Procedures were necessary for the Pueblo Indians to

make their conveyances and for the Secretary of Interior to

approve them, and the legislative history shows that future

13

conveyancing was intended to occur “under strict supervi-

sion of the Depart:nent /of Interior/.”” All other aspects of

tribal life are controlled by Federal laws and regulated by

Federal regulations, from the education of Indians, financ-

ing economic developments of Indians, Indian health care,

Indian child welfare, development of tribal mineral re-

sources, and the like. See generally U.S. Code, Title 25. It is

specious to think that alienation of the entire land base of

every Pueblo Indian in the State of New Mexico could occur

without adherence to any Federal guidelines or regulations

at all.

Equally important, nowhere in Section 17 is the Sec-

retary authorized to approve Pueblo conveyances. See

Southern Pacific Transp. Co. v. Watt, 700 F.2d 550 (9th

Cir. 1983). Such authorization is simple enough to express,

had Congress intended to do so. Currently, the statutes

governing rights-of-way through Indian land have been

codified at 25 USC Section 311, et seq. It is worth noting

that, for each type of right-of-way involved, the Secretary

of Interior is expressly authorized and empowered to

grant the relevant rights-of-way.* A conspicuous lack of

"See Commissioner Burke's statements, Pueblo Indian Lands:

Hearing on S. 3865 and S. 4223 Before a Subcomm. of the Senate

Comm. on Public Lands and Surveys, 67th Cong., 4th Sess. 155

(1923).

‘Section 311: “The Secretary of Interior is authorized to grant

permission” for public highways. Section 319: “The Secretary of

Interior is authorized and empowered to grant a right-of-way. . . for

the construction, operation, and maintenance of telephone and tele-

graph lines. . . .” Section 320: The Secretary “is authorized to grant”

lands for reservoirs, material or ballast pits. Section 321: “The Secre-

tary of Interior is authorized and empowered to grant a ~ight-of-way

for oil and gas pipelines.” Other statutes are equally explicit. See also

25 U.S.C. Sections 323, 396a-396g, 399, 400, 400a, 402-402a, 403a,

403b-403c, 407, 415, 416-416), and 641-646.

14

such delegation of power to the Secretary characterizes Sec-

tion 17.°

Congress knows how to express its intent. Bryan, 426

U.S. at 389-90; Southern Pacific Transp. Co., 700 F.2d at

554. If Congress had wished to provide a Federal means of

alienating Indian lands, it could have done so, undoubtedly

in a manner similar to that in which it had previously

enacted the Act of March 2, 1899, ch. 374, 30 Stat. 990-92, 25

USC 311-18, and the Act of March 3, 1901, ch. 832, 31 Stat.

1083-84, 25 USC 311, 319, and in which it subsequently

enacted the Act of April 21, 1928, ch. 400, 45 Stat. 442, 25

USC 322, and the Act of February 5, 1948, ch. 45, 62 Stat.

17-18, 25 U.S.C 323-28. These Acts, both prior and subse-

quent to the Pueblo Lands Act, dealt with the alienation of

Indian land, and none of them purported to do so by merely

alluding to the requirement of prior approval by the Secre-

tary of Interior.

More reasonably, Section 17 contemplates a future Con-

gressional enaction which would provide the means by

which right, title, and interest in and to Pueblo lands could

be acquired, both voluntarily and otherwise, and, further,

which would authorize the Secretary of Interior to approve

conveyances occurring pursuant to the terms of the second

part of Section 17. Such Congressional action was, in fact,

‘Petitioner argues that, as sovereigns, the Pueblo tribes have

reserved rights and did not need to be delegated power by Congress

to convey their lands. This is true, but, to the extent that the issue

concerns the extinction of title to lands held by tribes as dependent,

not independent, sovereigns, Federal law is inevitably involved. See

Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667, 670

(1974); Mohegan Tribe v. State of Connecticut, 638 F.2d 612, 626 (2nd

Cir. 1981), cert. denied, 452 U.S. 968 (1981). Section 17 operated as an

exertion of Federal control over Pueblo land, making it clear that,

notwithstanding earlier Federal or State enactments or decisions, all

fu.ure interests in and to Pueblo land would have to be acquired

pursuant to a future Congressional enactment.

15

forthcoming and currently exists, but it did not exist in

1924.

E. Section 17 required additional Congressional action

for the acquisition of any right, title, or interest in and

to Pueblo land.

Section 17 clearly contemplates future Congressional ac-

tion prior to the acquisition of any right, title, or interest to

Pueblo lands. If a legislative body wished to prevent the

passage of title to land, by whatever means, until future

laws and regulations were developed, it could not do so in

any clearer manner than to provide that “no right, title, or

interest in and tothe land. . . shall hereafter be acquired or

initiated . . . in any other manner except as may hereafter

be provided... .”

In 1925, George A.H. Fraser was of the opinion that

Section 17 operated as a bar to conveyances of Pueblo land,

not as authority for them. It was his understanding not only

that existing Federal acts failed to provide justification for

grants of rights-of-way, but also that the New Mexico Enab-

ling Act required the express approval of Congress for any

conveyances of Pueblo land. See Appendix 1, p. 4; Appendix

2, pp. 2-4; Appendix 1 to Petitioner's Brief in Chief, p. 51,

paragraph 4. Fraser's original analysis was that Section 17

required future Congressional action prior to the con-

veyancing of any interest in Pueblo lands. This later re-

evaluation was the result of Fraser's practical desire to

legitimize the existing illegitimate rights-of-way of the polit-

ically-powerful.'°

In a letter of November 4, 1925, to the Attorney General in Washington,

D.C., George A. H. Fraser noted that “/b/y the weight of authority, eject-

ment will lie against a railway which has come on a man’s land as a trespasser,

but as a practical matter it is impossible to get rid of a Railway once in

operation, and a court would go far to defeat such action in a case like this,

where development of the State is promoted and influential local interests are

involved.” Appendix 1, p. 4; see also Appendix 2, p. 4.

16

Section 17 did not provide the authority for either volun-

tary or involuntary conveyancing but left that to future

congresses. By the Act of May 10, 1926, ch. 282, 44 Stat.

498, Congress passed the Federal condemnation legislation

providing for involuntary alienations of Pueblo land. This

Act was repealed by implication in 1928, and the resultant

right-of-way bill, the Act of April 21, 1928, ch. 400, 45 Stat.

442, 25 U.S.C. 322-322a, thereby extended the provisions of

the earlier right-of-way acts to the Pueblos. By the Act of

February 5, 1948, ch. 45, 62 Stat. 17-18, 25 USC 323-28,

consensual right-of-way provisions were added. Today, the

land of both Pueblos and other Indians may be alienated,

both voluntarily and involuntarily, pursuant to Con-

gressional enactments subsequent to and as contemplated

by Section 17.

F. The administrative interpretation contradicts both the

language and purpose of the Pueblo Lands Act and is ¢

violation of the trust responsibility of the United

States.

Although a history of administrative interpretation may

be considered by a court in deciding the meaning of a

statute, such administrative interpretation is not controll-

ing. Zuber v. Allen, 396 U.S. 168, 192 (1969). In particular, if

that interpretation is incorrect, either in its construction or

in its frustration of Congressional policy, it should be ig-

nored. S.E.C. v. Sloan, 4386 U.S. 103, 117-18 (1978); Federal

Maritime Commission v. Seatrain Lines, Inc., 411 U.S.

726, 745-46 (1973); Plateau, Inc. v. Department of Interior,

603 F.2d 161, 164 (10th Cir. 1979). A history of improper or

incorrect administrative action is not precedent and does

not obligate the Supreme Court of the United States to

condone such practices. The fact that the Federal Govern-

ment consistently disclaimed its fiduciary duty and failed to

protect the Pueblos—a fact which, ironically, is now offered

17

to show its longstanding contemporaneous administrative

interpretation of Section 17—does not mean the fiduciary

obligation does not exist, and does not mean that Pueblo

land alienation can occur without compliance with Federal

law. See Mohegan Tribe, 638 F.2d at 623.

This case presents one of the starkest examples in Indian

law history of the Federal Government’s treacherous conflict

of interest. Although obligated to safeguard Indian lands,

the Federal Government has treated its obligations as fic-

titious, seeking, through administrative channels, to expe-

dite the improper alienation of Pueblo lands, not only for

third parties but also for the benefit of itself. [ts sanction of

the use of Section 17 to validate existing invalid rights-of-

way and to grant new rights-of-way was an unforgivable.

abuse of its fiduciary role. This betrayal of its trust respon-

sibility was recognized by the Government when, in 1982, it

filed Section 17 lawsuits on behalf of various Pueblos.'' The

very Goverrment currently involved with the resolution of

those suits and charged with zealous advocacy on behalf of

its charges, is, in the instant case, advocating the opposite

view! This on-again, off-again trust obligation and the atten-

dant conflicts of interest have resulted in a pattern of double-

dealing and faithless advocacy.

Traditionally, the Federal Government is held to the stan-

dards of a fiduciary in administering Indian affairs. Semi-

nole Nation v. United States, 316 U.S. 286 (1942). The

"E’.g., United States of America on behalf of the Pueblos of Santa

Clara and San Ildefonso, Plaintiffs, v. Jemez Mountain Electric

Coop. Defendant, No. CIV-82-1482M; United States of America on

behalf of the Pueblos of Acoma, Isleta, Jemez, Laguna, Picuris,

Pojoaque, San Felipe, San Ildefonso, San Juan, Sandia, Santa

Clara, Santo Domingo, Tesucue, Taos, and Zia, Plaintiffs, v. Moun-

tain States Telephone and Telegraph Co., Inc.. and Continental

Telephone Company of the West, Defendants, No. CIV-82-1513C.

18

Federal obligation was specifically described by the Non-

Intercourse Act, which extended the trust relationship to

protect the lands of all federally-recognized tribes. See Mor-

rison v. Work, 266 U.S. 481 (1924). The Pueblo Lands Act

itself characterized the United States as acting “in its sov-

ereign capacity of guardian of said Pueblo Indians.” Section

1, Pueblo Lands Act. As the trustee, the Federal Govern-

ment has certain unique obligations to the tribes and is

required to act in good faith and to use reasonable skill and

care in exercising its powers as trustee. Seminole Nation,

supra; U.S. v. Kagama, 118 U.S. 375 (1886); Cherokee

Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). The duty to

protect tribal property is even greater when the Federal

Government itself is involved in transactions with the trib-

es. See Navajo Tribe of Indians v. United States, 364 F.2d

320 (Ct.Cl. 1966).

It is clear that, at the time of the Pueblo Lands Act,

several entities, including Petitioner, were in trespass on

tribal lands and needed a means of validating their existing

rights-of-way. No Federal statutes permitting the grant of

rights-of-way existed. Section 17 was the only existing stat-

ute which could even be stretched to pretend to allow volun-

tary conveyances of Pueblo land. And so, without further

Congressional authorization or action, as required specifi-

cally by Section 17, the Federal Government, acting

through an agent of the Secretary of Interior, approved the

illegal transfers of land.

The Federal Government was well aware that Secretarial

approval alone was insufficient to validate Pueblo con-

veyances, but it failed to step in for the protection of the

Pueblos. In the instance of the railway at Jemez, for exam-

ple, the fact that the railway company had already tres-

passed, had constructed its lines, and was “impossible to get

rid of’ was sufficient to cause Federal acquiescence rather

19

than Federal adherence to Section 17.'* Such nonchalance

and lack of concern about its wards is by itself a gross breach

of duty, but the treason was further compounded when, in

the 1950's, the Secretary of Interior again utilized Section 17

to the Government's benefit in conveying interest in Pueblo

lands to the Bureau of Reclamation.'* These rights-of-way

were granted pursuant to Section 17, despite the fact that

alternative valid laws existed, providing exclusive pro-

cedures by which interest in the lands of Pueblos may be

acquired. '*

G. Section 17 is not limited to rights-of-way.

The Pueblo Lands Act, Section 17, is not limited to rights-

of-way. It specifically refers to “sale, grant, lease of any

character, or other conveyance of lands” as the acts which

require prior Secretarial approval. The United States would

have its cake and eat it too, claiming that Secretarial ap-

proval can validate Section 17 rights-of-way but cannot vali-

date any other conveyance. This position is unsupportable

“See generally Appendices 1 and 2 hereto and Appendix 1 to

Petitioner's Brief in Chief.

. ‘See Pueblo of Isleta, Plaintiff, v. James Watt, Secre*ary of Inte-

rior; Garrey Carruthers, Assistant Secretary of Interior—Land and

Water Resources; Robert N. Broadbent, Corimissioner of the Bureau

of Reclamation; U.S. Department of Interior; Midde Rio Grande

Conservancy District, Defendents, CIV-82-1504C; and Pueblo of

Sandia, Plaintiff, v. James Watt, Secretary of Interior; Garrey Ca I

ruthers, Assistant Secretary of Interior-—Land and Water Re-

sources; Robert N. Broadbent, Commissioner of the Bureau of Re-

clamation; U.S. Department of Interior; Middle Rio Grande

Conservancy District, Defendants, C1V-82-1536M.

‘*Act of May 10, 1926, 44 Stat. 498 (repealed by the 1928 Act); Act of

April 21, 1928, ch. 400, 45 Stat. 442, 25 USC 322; Act of February 5,

1948, ch. 45, 62 Stat. 17-18, 25 USC 323-28. All of these acts were

codified and regulations promulgated thereunder to ensure protec-

tion of the tribal lands.

oe |

“~~

20

by the statutory language or by logic, and is only under-

stood when one recognizes the contradictory position into

which the United States has gotten itself by its two-faced

advocation.

The United States, as a fiduciary obligated to protect

tribal lands, cannot in any way justify the sale of Pueblo

lands with only the undefined and unregulated Secretarial

approval as a prerequisite. But, because the United States

benefited itself with Section 17 rights-of-way, and because

the United States has actively acquiesced in the grant of

Section 17 rights-of-way to others, it now argues to this

Court that Section 17 permits the grant of rights-of-way

with Secretarial approval, but does not permit any other

sort of conveyance, Secretarial approval notwithstanding.

Such a self-serving, shameful position inevitably results

when a synthetic protector and fiduciary deals for its own

benefit to the detriment of its wards. Either all sales,

grants, leases, and conveyances of lands by Pueblos are

valid if approved by the Secretary of Interior, or no sale,

grant, lease, or conveyance of lands by Pueblos is valid, even

with such approval. There is no middle ground and no

exception for rights-of-way.

CONCLUSION

Petitioner would have this Court resurrect the anomalous

period existing at the turn of the century when Pueblo

Indians were not considered by many to be Indians or to be

entitled to Federal protection. Seventy years ago, in Sand-

oval, this Court recognized the error of such thinking and

righted the course of the law. Congress did so as well by

passing the Pueblo Lands Act requiring Pueblo Indians to

be treated as other Indians. The proper construction and

application of Section 17 are clear, and the rulings of the trial

court and of the Federal appellate court should be sus-

Pe

21

tained. Amici curiae respectfully request that this Court

hold that Section 17 did and does not permit New Mexico

Pueblos to alienate or convey interests in their lands without

statutorily-designated Federa supervision.

Respectfully submitted,

\

L. Lamar Parrish

Catherine Baker Stetson

USSERY & PARRISH, PA.

P. O. Box 487

Albuquerque, New Mexico 87103

(505) 247-0145

Attorneys for Amici Curiae

APPENDIX

la

APPENDIX 1

DEPARTMENT OF JUSTICE

Washington, D.C.

Santa Fe, N.M.

Nov. 4, 1925.

BMP No. 210663

Department of Justice File 210663-135

Record Group 60 (Section 3)

PUEBLO LANDS BOARD

The Attorney General,

Washington, D.C.

Sir:

As a matter of information and record, I wish to follow up my

last letter (undated, but written about October 30th) on the

question of suits to quiet title and other matters arising under

the Pueblo Lands Act of June 7, 1924. Also, you may wish to

approve or disapprove my tentative views on the proper course

to pursue.

1. As stated in that letter, I fear that, even if the objection of

multifariousness is overruled, the suit to quiet title may be

dismissed against any defendants who prove that they are in

possession and raise the objection that a suit in equity deprives

them of their constitutional right to a jury trial. If so, there will

be tracts the Indian titles to which have been held by the Board

to be unextinguished and of which defendants yet retain pos-

session. If such cases occur, I judge that it will be the duty of

the United States under its general power of guardianship,

2a

apart from the Act, to bring separate suits in ejectment

against such defendants.

Since the Act is mandatory in the matter of a suit to quiet

title, [assume that that course must be tried first, whatever we

may think as to its soundness.

In the case of Tesuque, it is possible that no defendants will

raise the constitutional question, in spite of their announced

intention to do so; but in the long run, it is hardly conceivable

that this point will not be raised somewhere at some time.

_ I find that under local State practice, in suits to quiet title, it

: irons to add to the defendants named “all unknown

persons claiming any interest or title adverse to the plaintiff.

This is authorized by early acts and by an amendatory act of

1925. Service is then had by publication. I am unable to find any

Federal statute or rule authorizing the inclusion of unknown

persons as defendants, although there is a familiar statute

providing for service by publication on defendants not found.

While of course a State act cannot enlarge Federal equity

jurisdiction, yet various Supreme Court eases say that a

Federal Court may, if it please, enforce a right created by State

law. Service by publication in English and Spanish for the

statutory six weeks would probably cost about $100.00. It is

possible that there are persons not in possession and who have

placed no deeds on record who yet have deeds from a Pueblo or

some Mexican living thereon which might later form the basis

of a claim. A very large number of the earlier deeds presented

to the Board as color of title have never been recorded.

The question then is whether it is worth while to make

“unknown persons” defendants and to incur the expense of

service by publication, in view of the uncertainty whether this

will do any good. Considering that this is the regular practice in

New Mexico and that it apparently effects a completeness

otherwise wanting, I am inclined to follow it. Please give me

your instructions as to this.

3a

3. This same difficulty becomes acute in the case of the Pueblo

of Jemez, where only three non-Indian claims were presented.

I do not know how the Board will decide them, but having

listened to the evidence would expect it to uphold them. If so,

there would be no known claimants at all to the Indian lands

title to which the Board finds unextinguished, and if the suit to

quiet title is brought, the only possible defendants would be

“unknown defendants. Yet, under the provisions of the Act, the

suit is mandatory.

If this turns out to be the situation, I would be inclined to

bring the suits against “unknown defendants” for what it may

be worth.

4. But Jemez will probably produce still another complication.

On July 11, 1924, the Secretary of the Interior approved an

application of the Santa Fe & Northwestern Railway Company

for a right-of-way across the Jemez Pueblo lands, a distance of

about 14 miles (incidentally, a similar right-of-way was ap-

proved across two other Pueblo grants,- Zia and Santa Ana).

This was in pursuance of surveys and negotiations beginning

about July, 1921. The Indians were very loath to permit the

rai'way to cross their grant, but were finally persuaded or

gently forced to do so. No court proceedings were had. An

informal appraisal of damages was made by H.F. Robinson,

Supervising Engineer, Indian Irrigation Service, Albuquer-

que, F.C.H. Livingston, then Special Attorney for the Pueblo

Indians, Belen, and Louis R. McDonald, Agency Farmer,

Jemez Pueblo, aggregating 2,946.55. This amount was appor-

tioned and distributed among the individual Indians whose

lands were taken, or damaged, although part went to the

Pueblo as an entity. The money was accepted, although appar-

ently with some demur. Mr. Robinson, who is an experienced

and conscientious man, assures me that the damages awarded

were adequate. The whole matter was engineered by H.P.

Marble, Superintendent of the Southern Pueblos, Albuquer-

que, who recommended approval to the Commissioner of Indi-

an Affairs, who, in turn, recommended it to the Secretary. The

railway was originally a private carrier—a logging railway—

4a

i carrier by the

but has recently been recognized as a common

Interstate Commerce Commission. It was constructed across

the Pueblo during 1923 and 1924; probably had trains running

in 1924, and is still in operation.

The Act by which it is attempted to justify all this is _ :

March 2, 1899, 30 Stat. L. 990, as amended June 25, 191 i

Stat. 859, Compiled Statutes, Sec. 4181. This authorizes, un

der certain conditions,

“A ri way for a railway, telegraph, and telephone

mi pn pn Reservation in any State nda Ter-

ritory, or through any lands held by an Indian tn 7

nation in Indian Territory, or through any lands —

for an Indian Agency or for other purposes In ow —

with the Indian service, or through any lands whic _

been allotted in severalty to any individual Indian —

any law or treaty, but which have not been conveyed to the

allottee with full power of alienation.”

ible portion of the above which could authorize

ee pdm of this right-of-way is the —

any lands held by an Indian oo p me argh *."

ions 22 and 23 of an Act of Feb. 20, ». 50,

ae above Act insofar as it applies to Indian oe

and Oklahoma, make clear to my mind that the — =

“Indian Territory” means the territory now embrac Sy _

state of Oklahoma and not Indian territory in gene! a “

statute relied on, therefore, seems to me to furnish no jus : <4

tion for the grant or approval of this right-of-way “ier =

owned in fee by the Pueblo. This view Is emphasized y ve

17 of the Pueblo Lands Act of June 7, 1924, reading in part:

" ight, title or interest, in or to the lands of the

seme pe col of New Mexico to which their title has ~

been extinguished as hereinbefore ——— sha :

hereafter be acquired or initiated by virtue of the laws :

the State of New Mexico, or in any other manner excep

as may hereafter be provided by Congress.

5a

This was passed prior to the Secretary's approval. If the forego-

ing is correct, the railway is a trespasser, and indeed could only

have acquired a right-of-way by special act of Congress in view

of Section 2, paragraph 2, of the New Mexico Enabling Act,

whereby the Pueblo lands are declared to be “subject to the

disposition and under the absolute jurisdiction and control of

the Congress of the United States.”

The Railway Company did not present its claim to the Board.

which informally advises me that it intends to return the land

over which the railway passes, as Indian land the title to which

has not been extinguished.

The question will then be squarely presented as to what

course we must take. Section 3 of the Pueblo Lands Act re-

quires a suit to quiet title to all Indian lands so returned, but as

above stated, the only known defendant so far will probably be

this Railway Company, which is unmistakably in possession, so

that a suit to quiet title will not lie. By the weight of authority,

ejectment will lie against a railway which has come on a man’s

land as a trespasser, but as a practical matter it is impossible to

get rid of a Railway once in operation, and a court would go far

to defeat such action in a case like this, where development of

the State is promoted and influential local interests are

involved.

An action in trespass for damages will also lie, and in this

case the amounts actually paid the Indians could be coun-

terclaimed. If they were adequate, plaintiff would have no

recovery.

Although satisfied that the Appraisers acted in good faith

and believed the award to be adequate, I doubt if it is really so

for this reason: In the way these people live, two or three acres

will support a family all their lives. An award of $300 or $450

producing a theoretical income of $18.00 or $27.00 a year, is

obviously a totaliy inadequate equivalent.

After much reflection, I recommend two proceedings in

Jemez, in case the situation develops as hereinabove indicated.

6a

(a) A suit to quiet title against all unknown defendants.

(b) An action in trespass against the Railway Company,

in which we may hope to recover some additional

damages.

While one is reluctant to criticize the course of the Department

of the Interior, it seems to me that if the land over which the

Railway runs is returned by the Board as Indian land with

unextinguished title, the Lands Board Act leaves no alter-

native but to sue. This is especially appropriate where the

Department has acted without any opinion from the Attorney

General and apparently without authority of law.

5. There will be still another difficulty at Jemez. On Sep-

tember 28, 1878, an agreement was made between the Gover-

nor and Principals of Jemez and B.M. Thomas, then Indian

Agent, reading as follows:

“It is hereby agreed by and between the Pueblo of

Jemez, represented by the Governor and officers and prin-

cipals thereof, on the one part; and B.M. Thomas, U.S.

Indian Agent on the other part, that a certain piece of land

situated at the northeast side of the Pueblo of Jemez,

extending from the house now being built thereupon, for

Mission and School purposes, distances and directions

herein described, viz: To the north seventy-five yards; to

the east thirty-five yards; to the south seven yards; to the

west ten yards; be and hereby is devoted to school pur-

poses for the benefit of said Pueblo, so long as the parties

building the house shall maintain a school upon said prem-

ises for the benefit of said Pueblo.

“In testimony whereof we, the parties of both parts, here-

by sign our names at the Pueblo of Jemez this twenty-

eight day of September, one thousand eight hundred and

seventy-eight.”

(Signed by the Governor and 12 other officials and Ben M.

Thomas, U.S. Indian Agent. )

7a

Although no mention is made of the real party in interest

this agreement was for the use of the Presbyterian Mission,

which proceeded to construct a building on the premises de-

scribed. I am told that it might cost $1500 or $2000 at present

prices to reproduce it. \

This agreement is not a lease and may probably be classified

as a license to occupy the land. The Mission presented no claim

to the Board, which therefore took no official cognizance of the

situation and will probably return the land in question as

Indian land the title to which is not extinguished. Since the Act

requires suit to quiet title to such land, at first glance it would

appear that the Mission should be made a defendant; but it is

obviously in possession and therefore a suit to quiet title is not

appropriate, at least if objection on that ground is made. Fur-

ther, insofar as the above agreement has any legal effect, it

shows that the Mission’s possession is not adverse, for which

reason also a suit to quiet title is inappropriate.

Probably the Mission is technically maintaining a school, as

the agreement provides, since it has the building with a person

ready and willing to teach. In fact, however, there is not a single

pupil in attendance, nor has there been for a long time back

and the Indians, or some of them, would like to have the land,

and more especially the building.

After attempting to balance the faces, my opinion is that the

Mission should not be made a party to the suit to quiet title, nor

otherwise sued, because its possession is not adverse. If the

Indians are dissatisfied with the situation, they should first

give notice to the Mission of the termination of the license, and

then proceed, independently, or ask their official attorney, to

proceed to recover possession in any appropriate way. If you

disagree with the foregoing, please inform me.

6. You are aware from this and previous letters that the Lands

Board Act is a well meaning but ill constructed measure which

develops difficulties at every step. Mr. Jennings intends to

submit to you before long an amendment to Section 2, designed

to clarify the financial situation, and naturally the desirability

8a

of amending the Act in various other particulars has been

under discussion. There seems to be much hesitation, however,

in suggesting any change to Congress because the difficulty of

procuring the passage of the Act in its present shape was so

great that there is fear lest it be emasculated ir the attention of

Congress is again directed to it.

So far as the suit to quiet title goes, it is doubtless desirable

to try out the working of this requirement before suggesting

any change. There is, however, one matter which seems to me

of immediate importance. The valuation report required by

Section 6 is given the effect of a judicial sinding and final

judgment. The primary report required by Section 2, which

separates the Indian from the non-Indian lands, is not express-

ly given any weight whatever, although it is the most important

of the four reports provided for. So far as the Act shows, its only

effect is to describe the Indian land which is to be the subject of

the suit to quiet title and in a way to designate the defendants in

such suit, or some of them. I think at least that this report

should be prima facie evidence in the suit of the matters and

things therein decided, and I also think that it should be

permissible to introduce in the suit the evidence taken before

the Board, or any part of it, subject, of course, to be rebutted or

supplemented by other evidence. If you agree with me in this, I

will be glad to submit a draft of a proposed amendment to

Section 3 along these lines.

Respectfully,

Special Assistant to the

Attorney General

GAHF-S

9a

APPENDIX 2

SANTA FE, NEW MEXICO,

February 24, 1926.

E.W. Dobson, Attorney at Law,

P.O. Box 650,

Albuquerque, N.M.

U.S. ex rel. Pueblo of Jemez vs. Santa Fe

& Northwestern Railway Company.

Dear Mr. Dobson:

Pursuant to our telephone talk yesterday, I write to set forth

my position and theory as to this case.

1. The Pueblo Lands Board, in its re

Lani ' port on Jemez Pueblo,

filed in the U.S. District Court November 24, 1925, and headed

“Title to Lands Granted or Confirmed to Pueblo Indians not

Extinguished,” says the following regarding this railroad:

“The Board further finds that the lands, the title to

which has not been extinguished, are burdened with what

is known as the

SANTA FE & NORTHWESTERN RAILROAD

The constructed line of this road crosses the entire

Pueblo from north to south, following the bed of the Jemez

River, and occupies a location in some places fifty feet, in

others one hundred feet in width.

The Indian title in the lands embraced in this location

has not been extinguished, but such lands are subject to

whatever servitude or burden may be constituted by the

construction and operation of this railroad and the right of

way granted to the Santa Fe & Northwestern Railway

Company by the Department, July 11, 1924, under th

of March 2 1899, (30 Stat. L, 90."

10a

In view of this finding, Sections 1 and 3 of the Pueblo Lands Act

of June 7, 1924, made imperative a suit to quiet title against the

Railway Company. Section 1, you will observe, requires such

suit to cover “any claims of any kind whatsoever adverse to the

claim of said Pueblo Indians as hereinafter determined.” The

reason why the Railway Company is the only defendant is that

there were only four other claims in Jemez adverse to the

Pueblo title and all of these were upheld by the Board. There-

fore, under the Act, they do not come within the scope of the

suit to quiet title.

2. Of course no title by adverse possession }sas had time to

accrue in favor of the Railway Company and its claim rests

alone on the Act of March 2, 1899, 30 Stat. L, 990, as amended

36 Stat. 859; U.S. Compiled Stat. Sec. 4181, et seq. This

authorizes under certain conditions, “a right of way********

through any Indian Reservation in any state or territory, or

through any lands held by an Indian tribe or nation in Indian

Territory, or through any lands reserved for an Indian Agency,

or for other purposes in connection with the Indian Service, or

through any lands which have been allotted in severalty to any

individual Indian under any law or treaty but which have not

been conveyed to the allottee with full power of alienation.”

The only portion of the above which could possibly authorize

the allowance of this right of way through Pueblo lands held in

fee by the Indians and to which the United States has never had

title, is the expression “through any lands held by an Indian

tribe or nation in Indian Territory.” The remainder of the Act,

especially compiled Statutes 4183 and 4185, make it perfectly

clear, however, that “Indian Territory” means the country in-

cluded now within the State of Oklahoma; as also does the Act

of February 27, 1902. 32 Stat. pp. 45-51, in part repealing the

above Act. This being true, said Act furnishes no justification

whatever for a grant of this right of way over Pueblo land.

This is emphasized by the familiar language of the New

Mexico Enabling Act, to the effect that such lands “shall be and

remain subject to the disposition and under the absolute juris-

lla

diction and control of the Congress of the United States.” This

I take to mean that thereafter, in view of the peculiar status of

the Pueblos and their lands, no disposition of the same, or of

any right therein, could be made with

Seen out express approval of

All this is made absolutely certain by Section 17 of th

Lands Act of June 7, 1924, reading in part: sco yaiangy

“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 hereinbefore determined shall hereafter

be acquired or initiated by virtue of the laws of the State of

New Mexico, or in any other manner except as may here-

after be provided by Congress.”

This was passed before the Secretary of the Interior approved

your right-of-way.

There are also some minor objections, e.g. Section 4161,

supra, provides that “in case objection to the granting of such

right of way shall be made, said Secretary shall afford the party

so objecting a full opportunity to be heard.” As you know, the

Indians seriously objected to the granting of this right of way,

but no opportunity whatever of hearing before the Secretary

was granted.

Again, Section 4185 provides for the payment of an annual

charge of not less than $15.00 a mile on the mileage of the line

through the Indian land, in addition to other compensation. I

am not informed that this payment has been made.

These two things, however, are trivial as compared with the

fundamental weakness first outlined.

Having made a full disclosure of my reasons for considering

this grant invalid, I am sure you will reciprocate by similarly

informing me of any reasons you may have for maintaining it.

3. Noting your desire for an early trial, in which I join, I

assume that you will there produce your permit from the

Secretary of the Interior, with my supporting documents.

12a

\

’

Please inform me whether you will also admit the purpose of

the Company to continue to maintain and operate its railroad if

not prevented, and whether you will prove or state in open

court, or stipulate, the date when the railroad was con-

structed? The proof, on either side, will, I imagine, be very

slight, since the case will turn on the law rather than the facts.

4. The following is a statement of my personal and unofficial

views as to this situation. I am informed that this railroad is a

valuable public utility and should be favored rather than dis-

couraged. If the case should be decided in plaintiffs’ favor, I

would not attempt to obtain a decree ousting the Company or

hindering the operation of its road, but would ask merely for

the quieting of the Pueblo title as against it, leaving it to seek

protection by an Act of Congress which, in my judgment, is the

only way in which it can obtain a legal right across the Pueblo.

This is inevitable, in view of Section 17 of the Pueblo Lands Act

above quoted. Please understand clearly that the foregoing

represents merely my individual views, and does not in any

way bind the Department of Justice.

Please let me hear from you within the next few days,

addressing me as above at Santa Fe, and letting me know when

you wish this case taken up, and giving me an outline of your

defense, if any. I will be glad to meet your wishes in any way

that I properly can.

Very truly yours,

Special Assistant to the

Attorney General.

CAHF-S