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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 472 U.S. 237

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0051%3A14. Public record. Not legal advice.