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

Office Supreme Court, UA

FIL ED a,

SAM 7 1805

No. 84-262 ALEXANDER &. STEVAS,

CLERK

’

- _— ————

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

MOUNTAIN STATES TELEPHONE AND

TELEGRAPH COMPANY,

Petitioner,

Vv.

PUEBLO OF SANTA ANA,

Respondent

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE

PUEBLO OF TAOS IN SUPPORT

OF PUEBLO OF SANTA ANA

WILLIAM C. SCHAAB

Rodey, Dickason, Sloan,

Akin & Robb, P.A.

P.O. Box 1888

Albuquerque, NM 87103

Telephone: 505-765-5900

Attorney for the

Pueblo of Taos,

amicus curiae

January 7, 1985

——

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST

SUMMARY OF ARGUMENT

ARGUMENT

1. SECTION 17 OF THE 1924

ACT CANNOT REASONABLY BE

CONSTRUED TO AUTHORIZE

GRANTS OF PUEBLO LAND

SUBJECT ONLY TO APPROVAL

BY THE SECRETARY OF THE

INTERIOR.

2. CONGRESS CONFIRMED RESPON-

DENT'S CONSTRUCTION OF § 17

BY ENACTING SPECIFIC RIGHT-

OF-WAY STATUTES FOR PUEBLO

INDIAN LAND IN 1926 AND

1928.

3. PETITIONER'S CONSTRUCTION OT

§ 17 IS REPUGNANT TO THE

1926, 1928 and 1948 ACTS.

4. TAOS PUEBLO ENDORSES THE

ADDITIONAL ARGUMENTS PRESENTED

BY RESPONDENT AND THE OTHER

AMICI PUEBLOS.

CONCLUSION

21

24

27

30

APPENDICES:

APPENDIX A:

October 31, 1984 Letter from

Solicitor Frank K. Richardson,

United States Department of

the Interior, to Hon. F. Henry

Habicht, Assistant Attorney

General, Department of Justice

CONSENT TO FILE TAOS PUEBLO'S

BRIEF AMICUS CURIAE

PROOF OF SERVICE

ii

EBEEFEEFERS ERE E

TABLE OF AUTHORITIES

CASES:

Alonzo v. U.S.,

249 F.2d 189 (10th Cir. 1957)

Cramer v. U.S.,

261 U.S. 219 (1938)

Garcia v. U.S.,

43 F.2d 873 (10th Cir. 1930)

New Mexico v. Aamodt,

537 F.2d 1102 (10th Cir. 1976)

Plains Electric G & T Coop.

v. Pueblo of Laguna,

542 F.2d 1375 (10th Cir. 1977)

United States v. Algodones

Land Co.,

~ §2 F.2d 359 (10th Cir. 1931)

United States v. Brown,

No. 1814 Equity (D.N.M. 1927)

United States v. Candelaria,

271 U.S. 432 (1926)

United States v. Chavez,

290 U.S. 354 (1933)

United States v. Herrera,

No. 1720 Equity (1928)

United States v. Joseph,

94 U.S. 614 (1876)

iii

Page

13

7,22,23

7,9

13

United States v. Mountain

States Tel. & Tel. Co., et al.,

No. 82-1513 (D.N.M.)

United States v. Rio Grande Dam and

Irrigation Co.,

174 U.S. 690 (1899)

United States v. Sandoval,

231 U.S. 28 (1913)

United States v. Woodford,

No. 1630 Equity (D.N.M.)

United States v. Wooten,

No. 1784 Eq., 40 F.2d 882

(10th Cir. 1930)

STATUTES

Nonintercourse Act of 1834,

25 ¥U.8.C. § 177

Act of February 27, 1851,

ch. 14 § 7, 9 Stat. 25

Act of July 22, 1854,

10 Stat. 308

Act of December 22, 1858,

ll Stat. 374

Act of March 2, 1899,

25 U.S.C. §§ 312-314

Act of March 3, 1901,

25 U.S.C. § 318

iv

7,9

Page

26

26

New Mexico Enabling Act of

June 20, 1910, 36 Stat. 557

Pueblo Lands Act

of 1924, 43 Stat. 636

Act of May 10, 1926,

44 Stat. 498

Act of April 21, 1928,

ch. 400, § 1, 45 Stat. 442,

25 U.S.C. § 322

Act of February 5, 1948,

c. 45 § 1, 62 Stat 17,

25 U.S.C. § 323

25 U.S.C. §§ 311, 312-314, 319,

399, 406-407

25 U.S.C. § 402

25 U.S.C. §§ 322, 328

REGULATIONS :

25 C.F.R. § 169.1 et seq.

OTHER AUTHORITIES:

Kelly, John Collier and the

Pueblo Lands Board Act,

58 N.M. Hist Rev. 5 (1983)

Vv

10

25

25

28

SSESEESSSEESEEEEE

No. 84-262

IN THE

SUPREME COURT OT THE UNITED STATES

October Term, 1984

MOUNTAIN STATES TELE?HONE AND

TELEGRAPH COMPANY,

Petitioner,

Vv.

PUEBLO OF SANTA ANA,

Respondent

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE

PUEBLO OF TAOS IN SUPPORT

OF PUEBLO OF SANTA ANA

The Pueblo of Taos, New Mexico, files

this brief amicus curiae in support of

Respondent pursuant to Rule 36 of the Supreme

Court Rules.

STATEMENT OF INTEREST

The Pueblo of Taos has a direct interest

in the Court's disposition of this proceed-

ing. Petitioner owns and operates a tele-

phone line installed on Taos Pueblo lands

(the "§ 17 Line"), the right-of-way for which

was obtained under § 17 of the Pueblo Lands

Act of 1924, 43 Stat. 636 (the "1924 Act").

On December 29, 1982, the United States sued

the Petitioner on behalf of Taos Pueblo to

obtain a judgment that such right-of-way was

null and void, that Petitioner be ejected

trom Taos Pueblo lands and be required to pay

damages for its unauthorized use of the

Pueblo's lands. U.S. v. Mountain States Tel.

& Tel. Co., et. al., No. 82-1513. The Pueblo

is not a party to that suit, but it supports

the position of the United States therein.

The suit is held in suspense by order based

on the agreement of the parties pending the

oe 2 «

SESEEEESSEESZEAEE EE

Outcome of this appeal.

The § 17 Line was obtained by Petitioner

for a recited consideration of $48 under an

instrument dated February 3, 1927, executed

by representatives of the Pueblo, which

purported to grant an easement on Pueblo

lands for a telephone and telegraph "pole

line" then in existence. The instrument does

not contain a precise survey description of

the land affected, the acreage covered by the

purported easement, or the term of the rights

granted. The instrument referred to an

earlier, possibly defective instrument, which

apparently purported to grant ae similar

right-of-way for a consideration of $194.50.

The instrument was approved by the

Commissioner of Indian Affairs on March 8,

1927, and by the Assistant Secretary of the

Interior on March 10, 1927, "in accordance

with the provisions of section 17" of the

=3o

1924 Act.

Petitioner was named a defendant in U.S.

v. Wooten, No. 1784 Eq. (40 F.2d 882, 10th

Cir. 1930), the quiet title suit brought

under § 3 of the 1924 Act with respect to

Taos Pueblo lands. After approval of the

right-of-way for the § 17 Line by the Secre-

tary, the Wooten complaint against petitioner

was dismissed pursuant to stipulation on

November 18, 1927.

SUMMARY OF ARGUMENT

l. Section 17 of the 1924 Act cannot

reasonably be construed to authorize grants

of Pueblo Indian land subject only to

approval by the Secretary of the Interior.

2. Congress confirmed Respondent's

construction of § 17 by enacting specific

right-of-way statutes for Pueblo Indian land

on May 10, 1926, 44 Stat. 498 (the "1926

Act"), and April 21, 1928, ch. 400, § 1, 45

~~

FSZSZREE PERSE EGE

Stat 442, 25 U.S.C. § 322 (the "1928 Act").

36 Petitioner's construction of § 17

is repugnant to the 1926 and 1928 Acts and to

the Act of February 5, 1948, c. 45 § l, 62

Stat. 17, 25 U.S.C. § 323 to 328 (the "1948

Act").

4. Taos Pueblo endorses the additional

arguments presented by Respondent and the

other amici Pueblos.

ARGU™ENT

1. SECTION 17 OF THE 1924 ACT CANNOT REASON-

ABLY BE CONSTRUED TO AUTHORIZE GRANTS OF

PUEBLO LAND SUBJECT ONLY TO APPROVAL BY THE

SECRETARY OF THE INTERIOR.

Taos Pueblo endorses and supports the

interpretation of § 17 set forth at length in

Respondent's briefs herein and in the amicus

briefs filed by other Pueblos in support

thereof.

The 1924 Act expressly stated in its

introductory section that Congress acted "in

its sovereign capacity as guardian of said

-5—

Pueblo Indians." That capacity had been

established with respect to the Pueblo

Indians by (a) the Act of February 27, 1851,

ch. 14, § 7, 9 Stat. 25, which extended to

the Indian tribes of New Mexico the protec-

tion of the Nonintercourse Act of 1834, 25

U.S.C. § 177; (b) the Act of July 22, 1854,

10 Stat. 308, which created the office of the

Surveyor General of New Mexico with specific

instructions to determine the location and

extent of Pueblo lands; (c) the Act of

December 22, 1858, 11 Stat. 374, which

confirmed the Surveyor General's surveys of

Pueblo grant lands subsequently patented to

them in 1864; and (d) the New Mexico Enabling

Act of June 20, 1910, 36 Stat. 557, which

recognized that the Pueblo Indians were under

exclusive federal jurisdiction. The

authoritative decisions of this Court relied,

in addition, upon an unbroken succession of

ato

SEER ER RE REESE

Congressional acts in fulfillment of the

government's guardianship role. O.8. Ws

Sandoval, 231 U.S. 28 (1913); U.S. Vv.

Candelaria, 271 U.S. 432 (1926); U.S. Vv.

Chavez, 290 U.S. 354 (1933).

In the Tenth Circuit, the federal courts

have uniformly held that Pueblo lands have

always been inalienable, under the federal

guardianship, without Congress' authority.

U.S. v. Algodones Land Co., 52 F.2d 359 (10th

Cir. 1931); Alonzo v. U.S., 249 F.2d 189

(10th Cir. 1957); N.M. v. Aamodt, 537 F.2d

1102 (10th Cir. 1976); Plains Electric G& T

Coop. v. Pueblo of Laguna, 542 F.2d 1375

(10th Cir. 1977). The decision below is

merely the most recent in an unbroken series

of precedents. Only certain decisions of the

territorial and state courts deviated from

the consistent federal recognition of the

guardianship of the Pueblo Indians and the

oJoa

concomitant restraint on alienation of their

lands. Territorial law, however, was not

part of governing federal law. See U.S. v.

Rio Grande Dam-& Irrigation Co., 174 U.S.

>

690, 704 (1899). For that reason, tnis

Court's acceptance of the territorial court's

description of the Pueblos in U.S. v. Joseph,

94 U.S. 614 (1876)7, was not considered

authoritative or binding when the question of

Congress* power to establish the federal

The Joseph decision recognized that a

non-Indian in possession of Pueblo land

"without the seed the inhabitants. .

. May be -eirehel® + or punished civilly,

by a suit for trespass,” 94 U.S. 614, 619.

The case sustained demurrers to defective

petitions to collect the penalty imposed by

§ 11 of the Nonintercourse Act on persons

wrongfully occupying Taos Pueblo land. The

Court's opinion did not consider whether

Congress had the authority or intent to

protect Pueblo lands against unauthorized

alienation under § 12 of the Nonintercourse

Act, and it did not deny the existence of

the federal guardianship recognized by

later decisions since the beginning of

American sovereignty.

-8-

PEER REE RERSEEEESE

guardianship of the Pueblos was presented in

the Sandoval case or in the Candelaria case

when the origin of the guardianship was

established. No federal court has ever held

that the Pueblos were not under the federal

guardianship or that the Pueblos were free to

dispose of their lands without authority from

Congress.

The 1924 Act was enacted in fulfillment

and in furtherance of the federal guardian-

ship of Pueblo lands. Non-Indians then in

possession of Pueblo grant lands claimed

ownership under purported “sales, grants,

leases of various kinds, and other convey~

ances" by a Pueblo or an individual Pueblo

Indian. Some of those instruments had been

approved by the Secretary of the Interior

under existing laws: tribal farming leases

had been authorized in 1894, 25 U.S.C. § 402,

mining leases in 1919 and 1921, 25 U.S.C.

==

§ 399, rights-of-way for highways, railways

and telephone lines in 1899, 1901, 1904, and

1909, 25 U.S.C. §§ 311-321, grazing leases in

1891, 25 U.S.C. § 397, oil and gas or mining

leases in 1909 and 1924, 25 U.S.C. §§ 396 and

398, contracts for farm lands in 1916 and

1921, 25 U.S.C §§ 393-394, and timber

stumpage in 1910 and 1921, 25 U.S.C.

§§ 406-407.

Congress' solution to the tangled titles

and conflicting claims within Pueblo grants

was to create the Pueblo Lands Board to

determine which "private claims" should be

confirmed and the Pueblos' title

extinguished. The criteria for confirmation

were set forth in § 4: continued possession

with color of title since 1902 or without

color of title since 1889.

The language of § 17 seems clear and

unambiguous in the context of its enactment

-1@<

SERRE EE SEES

on June 7, 1924. The first clause “here-

after" prohibited any "right, title, or

interest" in Pueblo lands "in any. . .manner"

except "as may hereafter be provided by Con-

gress.” The second clause invalidated any

"Sale, grant, lease of any character, or

other conveyance of lands, or any title or

claim thereto" by a Pueblo or individual

Indian "unless the same be first approved by

the Secretary of the Interior." The second

clause was an instruction to the Pueblo Lands

Board and the federal courts with respect to

instruments that might be offered in support

of "private claims~ under the 1924 Act.

Congress intended thereby to protect any

non-Indian interests properly approved by the

Secretry in accordance with preexisting law

against invalidity in the quiet title suits

authorized in § 3. The first clause of § 17

looks forward; the second looks back. In the

oie

future, no interest can be acquired unless

Congress "“hereafter" legislates. In the

past, however, when Congress had failed to

repudiate the erroneous judgments of the

territorial and state courts, a variety of

Pueblo and Indian instruments had _ been

issued. Those were expressly invalidated by

the second clause, unless "first approved" by

the Secretary. Unspoken was the implied

reference to the Secretary's extensive

existing authority to approve various

interests in Indian lands. If “first

approved" an Indian grant was not necessarily

valid. Approval under existing law saved the

instrument from invalidity under § 17, but

§ 17 did not validate any pre-enactment

action. Valididty was to be decided by the

Board or the federal court, but they had no

jurisdiction under the Act to _ consider

post-enactment actions.

-l|2-

SEEEREEE

The Board determined that non-Indian

claimants to lands within the Pueblo grants

had acquired no rights of any kind under

territorial or state law; their claims could

be validated only under § 4 of the Act. The

federal courts sustained that determination

of the Board's in quiet title suits filed

under § 3 of the Act. U.S. V. Woodford, No.

1630 Eq. [Tesuque Pueblo], Order entered

December 5, 1928; U.S. v. Herrera, No. 1720

.Eq. [Nambe Pueblo], Per Curiam Order entered

May , 1928; Garcia v. Y.S., 43 F.2d 873,

878 (10th Cir. 1930) [San Juan Pueblo].

Congress' intent in § 17 was

erroneous

,

decisions of the Board's attorney, Special

nevertheless frustrated by

Assistant Attorney General George Fraser, who

first concluded that existing statutes

relating to Indian lands did not apply to the

Pueblos because Congress had confirmed their

o13<

grants and had not concluded treaties with

them. His erroneous decision required the

Board to invalidate any pre-enactment

rights-of-way or other interests in Pueblo

lands previously approved by the Secretary.

The Board's action was later cited by

Congress as the reason for its enactment of

the 1926 Act. To escape that harsh--and

completely unnecessary and unwarranted--

result, Mr. Fraser decided to treat as valid

post-enactment rights-of-way approved under

§ 17. This was an obvious nonsequitur

because the second clause of § 17 was

intended only to invalidate pre-enactment

Indian grants (unless approved by the

Secretary under existing law); post-enactment

interests were expressly barred except as

authorized under later statutes, like the

1926 and 1928 Acts.

Petitioner, and the United States as

oig-

amicus, distorts this clear interpretation of

§ 17 by concocting the "yvyoluntary-involun-

tary" distinction. Nowhere in § 17 or its

legislative history, or in any document con-

nected with the contemporaneous 1926 and 1928

Acts, did Congress suggest such a distinction

between the first and second clauses of § 17.

George Fraser tentatively suggested such a

distinction in his explanatory letter as a

way of resolving the "seeming contradiction"

between the two clauses, but the “seeming

contradiction” only existed because he

erroneously concluded the Secretary had no

preexisting authority over Pueblo lands. The

present parties, seeking to sustain Fraser's

error, argue that no other interpretation of

§ 17 is plausible. Instead, the obvious

interpretation set forth above not only con-

forms to the facts of 1924, the language of

the Act, and the mechanism created to resolve

= {=

the title problems of the Pueblos, but it

proves how wrong Mr. Fraser was with respect

to pre-enactment easements approved by the

Secretary. The Court should not accept this

effort to perpetuate an ancient error.

Congress by the second clause of § 17

did not intend to authorize the Secretary of

the Interior at any time in the future to

grant rights-of-way or other interests in

Pueblo lands. The analyses of § 17 by Peti-

tioner and the United States as amicus ignore

the opening prohibition against any interest

in Pueblo land being acquired "hereafter,"

after the date of enactment. If the

Secretary, acting in accordance with existing

law, had approved instruments before the date

of enactment “made by any Pueblo as a

community, or any Pueblo Indian living in a

community of Pueblo Indians,” they could be

accepted by the Board and the federal courts

-16- ,

SER EEERSEER ERE EEE ES

as having "validity in law or in equity” for

purposes of validating a claim uncer § 4 or

§ 5. But the first clause of § 17 barred any

post-enactment action by the Secretary except

in accordance with subsequent legislation.

The construction urged by Petitioner asks the

Court to ignore the effect of the first

clause -- by treating it as "separate" from

the second clause and limited to

"involuntary" transactions -- and the fact

that Congress did not in § 17 expressly

delegate power to the Secretary as it did in

§ 16 of the Act.

The language of the second clause says

that no purported conveyance of land by a

Pueblo or Pueblo Indian shall be valid unless

first approved by the Secretary. Giving

effect to the first “hereafter" in the first

clause requires the second clause to be

limited to pre-enactment periods, not

ol7e

extended into the indefinite future

regardless of laws "hereafter [to] be

provided by Congress." The negative language

of the second clause does not imply the

converse. Subsequent authorization was a

precondition for acquisition of any interest

in Pueblo lands "in any. . .manner,"

including a voluntary transfer by a Pueblo.

There is no principle of logic or statutory

construction under which an affirmative grant

of power may be inferred from an express

denial of the power. The analogy to § 12 of

the Nonintercourse Act drawn by Francis

Wilson, who drafted the language, does not

Suggest a waiver of restraints on alienation

for post-enactment periods. Wilson stated

that he had adapted the language of § 12 of

the Nonintercouse Act to conform to

conditions peculiar to the Pueblo. Those

conditions included improvident conveyances

-18-

by a individual Indians, which were

expressly invalidated by the second clause of

§ 17, saving only those instruments that had

been approved by the Secretary under existing

law.

In that context, the first clause of

§ 17 served as general notice of the

requirement for congressional authority

before any acquisition of an interest in

Pueblo lands could be acquired after June 7,

1924. The second clause gave specific notice

that the Pueblos and their individual members

could no longer consent to conveyances of

interests in their lands without first

obtaining the approval of the Secretary, who

would then, under the first clause, have to

determine whether or not congressional

authority for such conveyances existed. The

second clause thus ensured that the

Secretary, rather than the Indians, would be

-19-

responsible for determining what their rights

were with respect to land transactions. Such

control was intended to prevent a recurrence

of the conditions that left the Pueblos for

over half a century dependent upon their own

uninformed judgment with respect to land

transactions.

Unfortunately, Congress’ intent was

frustrated by George Fraser's mistake. Once

begun, his error was repeated and, perpetu-

ated, but like any error, it was baseless,

and the Court should now correct it by

affirming the court below. Perpetuation of

an error by subordinate employees is not

entitled to the dignity of an official

administrative interpretation intended by

Congress to flesh out the bare bones of its

statutory language. Here, it is obvious that

Mr. Fraser's error defeated Congress' intent,

which was clearly expressed in the language,

-20-

TER RERERERERERBERERERE ES

as the courts below held, and its subsequent

actions with respect to Pueblo lands were

consistent with that interpretation and

inconsistent with the Petitioner's contention

that § 17 was a general, unrestricted grant

of authority to the Secretary to approve any

disposition of Pueblo Indian lands at any

time in the future. Their argument claims

too much. Like the contention that negative

terms constitute an affirmative grant of

authority, Petitioner would have the Court

approve what Congress took pains to prevent.

2. CONGRESS CONFIRMED RESPONDENT'S CONSTRUC-

TION OF § 17 BY ENACTING SPECIFIC RIGHT-

OF-WAY STATUTES FOR PUEBLO INDIAN LAND IN

1926 AND 1928.

Congress passed the 1926 Act after it

was advised that the Pueblo Lands Board had

decided that existing statutes for acquiring

rights-of-way over Indian land did not apply

to the Pueblos. In the legislative history

a2ie

of that Act, Congress did not suggest that it

was authorizing condemnation of Pueblo lands

under state law because a right-of-way was

not obtainable under § 17. The suggestion in

the govefnment's amicus brief (pp. 24-25),

that "it seems reasonable to assume that

Congress was apprised of the circumstances"

that two Pueblos approved’ rights-of-way

"under Section 17" while a third refused, is

completely unwarranted. Congress responded

to an apparent need to provide a means for

acquiring rights-of-way for legitimate

projects. Had it believed § 17 authorized

such a grant, no further legislation would

have been necessary. Its opposite conclusion

and passage of the 1926 Act prove that

Congress did not construe § 17 as Petitioner

now contends.

As stated in Plains Electric G & T Corp.

v. Pueblo of Laguna, 542 F.2d 1375, 1377

=220

SEER ERREREREREEE

(10th Cir. 1977), the federal district court

later held the 1926 Act defective because it

failed to authorize joinder of the United

States, the Pueblo's guardian, as a party

defendant in the condemnation action.

Congress then passed the 1928 Act making

applicable to Pueblos the existing right-

of-way statutes, under which the Secretary

had previously granted rights-of-way oon

Pueblo lands. Congress thus’ repudiated

George Fraser's fundamental error, and by

implication, his erroneous construction of

§ 17.

The Tenth Circuit held in Plains

Electric that the 1926 Act was repugnant to

the 1928 Act and that the earlier law was

therefore repealed by implication. The only

possible inference from that action is

Congress' understanding that, pursuant to

§ 17 of the 1924 Act, Secretarial authority

=23<

to grant rights-of-way over Pueblo lands must

be given by new legislation. Congress

obviously did not construe § 17 as an

effective grant of authority to the Secretary

to appy“ye interests in Pueblo lands.

3. PETITIONER'S CONSTRUCTION OF § 17 IS REPUG-

NANT TO THE 1926, 1928, AND 1948 ACTS.

The legislative history of the 1926,

1928, and 1948 Acts, not considered by

Petitioner or the United

States amicus,

contains no suggestion that § 17 previously

authorized grants of rights-of-way by the

Secretary with tribal consent. Had Congress

understood § 17 to have that effect, it

surely would have commented

upon its

relationship to the later statutes. Section

17 was not mentioned because Congress did not

believe it had the legal effects erroneously

attributed to it by Mr. Fraser originally and

latterly by Petitioner and its supporters.

=24-

SEER ERE REREBREERERE

———w eS =

—— Oe

In the 1926, 1928, and 1948 Acts

Congress provided specific me thods of

acquiring rights-of-way on Pueblo lands. In

each case, an applicant had to meet stated

requirements. In the short-lived 1926

condemnation Act, state requirements’ for

condemnation actions were mandated, and the

1928 and 1948 Acts contemplated regulations

to protect Indian interest. 25 U.S.C. §§

322, 328. Petitioner's construction of § 17

proposes an evasion of such requirements by

Secrtarial approval outside regularly

established procedures.

The proposed construction is

unsatisfactory because it infers affirmative

authority from negative language, is not

supported by even the slightest indication of

creates an

Congressional approval, and

exception for the the Pueblos from the

general system of protection applicable to

=25-

Indian tribes generally. Petitioner's § 17

Line on Taos Pueblo land, for instance, does

not comply with the requirements of the

regulations authorized by Congress. 25

C.F.R. § 169.1 et seq. Congress surely did

not intend to accord the Pueblos less

protection than other Indian tribes by

permitting an evasion of the safeguards of

the 1926, 1928, and 1948 Acts and their

attendant regulations and requirements. Any

post-1926 right-of-way approved under § 17

without compliance with the requirements of

the 1926, 1928, or 1948 Acts should, there-

fore, be held void for failure to satisfy the

specific protective requirements of those

statutes. In 1927, Petitioner could have

acquired its right-of-way by condemnation

under the 1926 Act or from the Secretary

under the Acts of March 2, 1899, or March 3,

1901 [25 U.S.C. §§ 312-314, 318]. Consensual

@26<

agreements with the Pueblos were never

prohibited or discouraged. There was

obviously no need for Mr. Fraser's attempted

circumvention under § 17, and the consruction

of that provision required to justify the

attempt was repugnant to Congress' actions in

1926, 1928, and 1948, which were clearly

consistent with § 17.

4. TAOS PUEBLO ENDORSES THE ADDITIONAL ARGU-

MENTS PRESENTED BY RESPONDENT AND THE OTHER

AMICI PUEBLOS.

The other principle arguments presented

in opposition to Petitioner's claims are (a)

the irrelevancy of administrative practice

that is inconsistent with a statute, and (b)

the non-binding effect of the dismissai of

Petitioner from the quiet title suits

instituted pursuant to § 3 of the 1924 Act.

With respect to the first argument, the

record discloses that the original error of

George Fraser's was perpetuated by various

o2J<

officials without further legal opinion,

ruling or regulation. The history of these

actions is less a “course of administrative

interpretation" than an uncertain, rather

sheepish repetition of the original error, as

if to avoid impeaching the earlier actions by

further unauthorized approvals. After the

1948 Act, only a few rights-of-way for

irrigation or drainage works were approved

unaer § 17, and no instruments have been

approved since 1959. [Kelly Report, p. 68.]

Congress’ intent and the underlying purpose

of § 17 are clear, and the inconsistent

actions of subordinate employees of the

executive branch may properly be ignored upon

the authorities cited in Respondent's briefs.

The second argument refers to judicial

actions, rather than executive, that also

followed from Mr. Fraser's’ error. The

dismissal of Petitioner from the Brown case

-28-

SEER ERR ERBRERBSEE BS

involving Respondent's lands was repeated in

the district court's dismissal of the

Petitioner in the Wooten case pertaining to

Taos Pueblo's lands. Those actions obviously

did not involve any adjudication on the

merits (although Petitioner had filed an

answer in Wooten shortly before entry of the

"decree" of dismissal); nor did the Court

have jurisdiction under § 3 of the 1924 Act

to review, consider, and approve Mr. Fraser's

erroneous construction of § 17. Cf. Cramer

v. U.S., 261 U.S. 219, 230-234 (1923). The

court entered the dismissal because the

government was willing to drop its claims

against Petitioner. There was no “consent

decree" sufficient to validate Petitioner's §

17 Line under § 5 of the 1924 Act. The

government merely dropped its challenge of

Petitioner's claims because the Secretary had

approved the right-of-way. For the reasons

-29-

stated in Respondent's briefs, and in the

United States' amicus brief, the court's

action had no res judicata effect. The

pending action instituted by the United

States to recover damages for Taos Pueblo

based upon Petitioner's unauthorized use of

its property for telephone purposes should go

forward in the district of New Mexico.

CONCLUSION

For the foregoing reasons, Taos Pueblo

prays as amicus curiae that the decision of

the Tenth Circuit Court of Appeals below be

affirmed. The practical consequences of this

action are not significant, the Secretary of

the Interior no longer considers § 17 a valid

basis for approving Pueblo grants’ of

rights-of-way or other interests as indicated

by the Solicitor's letter dated October 31,

1984, attached as an appendix hereto, and the

language and intent of the 1924 Act plainly

-30-

BEERERSERERBEEERESE

justify the decision below.

January 7,

Respectfully submitted,

WILLIAM C. SCHAAB

Rodey, Dickason, Sloan, Akin

& Robb, P.S.

Post Office Box 1888

Albuquerque, New Mexico 87103

Telephone: (505) 765-5900

William C. Schaab

Attorney for the Pueblo of

Taos, Amicus Curiae

1985

-3l-

IN THE

SUPREME COURT OF THE UNITED STA7ES

October Term, 1984

No. 84-262

THE MOUNTAIN STATES TELEPHONE AND

AND TELEGRAPH COMPANY, PETITIONER

Ve

PUEBLO OF SANTA ANA

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

CONSENT TO FILING OF TAOS PUEBLO

BRIEF AMICUS CURIAE

The undersigned hereby consent to the

filing on behalf of Taos Pueblo of a brief

amicus curiae in support of the respondent

herein.

KATHRYN MARIE KRAUSE

Attorney for Petitioner

931 14th Street, Room 1300

Denver, Colorado 80202

LUEBBEN, HUGHES & TOMITA

Attorneys for Respondent

201 Broadway S.E.

Albuquerque, New Mexico 87102

By Lest , Be

Scott E. Borg (/

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

No. 84-262

THE MOUNTAIN STATES TELEPHONE AND

AND TELEGRAPH COMPANY, PETITIONER

Vv.

PUEBLO OF SANTA ANA

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PROOF OF SERVICE OF TAOS PUEBLO

BRIEF AMICUS CURIAE

I, WILLIAM C. SCHAAB, attorney for Taos

Pueblo, amicus curiae herein, and a member of

the Bar of the Supreme Court of the United

States, hereby certify that, on the 5th day

of January, 1985, I served copies of the

foregoing Brief Amicus Curiae on the several

parties thereto, as follows:

1. On the United States, by leaving a

copy thereof at the office of William L.

Lutz, Esq., United States Attorney for the

District of New Mexico, at the Federal

Building, 500 Gold S.W., 12th Floor, and by

mailing a copy in a duly addressed envelope,

with air mail postage prepaid, to The

Solicitor General, Department of Justice,

Washington, D.C. 20530.

2. On the Petitioner and other amici

curiae, by mailing copies in duly addressed

envelopes, with first class postage prepaid,

to their respective attorneys of record, as

follows:

KATHRYN MARIE KRAUSE

Attorney for Petitioner

SCOTT E. BORG

Attorney for Respondent

PAUL BARDECKE, Attorney General

Attorney for State of New Mexico,

Amicus Curiae

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L. LAMAR PARRISH

Attorney for The All Indian Pueblo Council,

Pueblos of Isleta, Sandia, Santa Clara,

San Juan, Laguna and Jemez,

Amicus Curiae

PETER C. CHESTNUT

Attorney for Pueblo of Acoma

Amicus Curiae

JOHN R. COONEY

Attorney for Atchison, Topeka

& Santa Fe Railway,

Amicus Curiae

ROBERT H. CLARK

Attorney for Public Service Co.

of New Mexico,

Amicus Curiae

a ee

WILLIAM C. SCHAAB

Attorney for Taos Pueblo

P.O. Box 1888

Albuquerque, NM 87103

(505) 765-5900