Pueblo of Santa Ana v. Mountain States Tel. and Tel. Co., 83-1220

• Decision Date: 14 May 1984
• Docket Number: No. 83-1220,83-1220
• Citation: 734 F.2d 1402
• Parties: PUEBLO OF SANTA ANA, Plaintiff-Appellee, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Defendant-Appellant. The Atchison, Topeka & Santa Fe Railway Company, Amicus Curiae Pueblo De Acoma, Amicus Curiae Public Service Company of New Mexico, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1402

734 F.2d 1402

PUEBLO OF SANTA ANA, Plaintiff-Appellee, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY Defendant-Appellant The Atchison, Topeka & Santa Fe Railway Company, Amicus Curiae Pueblo De Acoma, Amicus Curiae Public Service Company of New Mexico, Amicus Curiae.

No. 83-1220.

United States Court of Appeals Tenth Circuit.

May 14, 1984.

Scott E. Borg of Luebben & Hughes, Albuquerque, N.M., for plaintiff-appellee.

Kathryn Marie Krause, Denver, Colo. (Stuart S. Gunckel, Denver, Colo., with her on the brief), for defendant-appellant.

Gary Crosby, Santa Fe Industries, Inc., Chicago, Ill. and John R. Cooney, Lynn H. Slade, John S. Thal and Walter E. Stern, III of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, N.M., filed briefs on behalf of amicus curiae The Atchison, Topeka & Santa Fe R. Co. Public Service Co. of New Mexico joined in the Amicus Briefs of The Atchison, Topeka & Santa Fe R. Co.

Arturo G. Ortega of Ortega & Snead, P.A., Albuquerque, N.M., and Peter C. Chestnut, Albuquerque, N.M., filed a brief on behalf of amicus curiae Pueblo de Acoma.

Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This is an interlocutory appeal from the United States District Court for the District of New Mexico which we permitted to be filed. The court granted partial summary judgment to the plaintiff-appellee, Pueblo of Santa Ana, and against the defendant-appellant, Mountain States Telephone and Telegraph Company, Mountain Bell. The dispute involves a right of way for a telephone and telegraph line across Pueblo lands. The trial court held in favor of the Pueblo and Mountain Bell appeals. We affirm.

The Pueblo was the owner of a tract of land situated in New Mexico which was a part of the El Ranchito Grant. In November, 1927, the United States pursuant to the Pueblo Lands Act, 43 Stat. 636, filed an action in the federal district court for the district of New Mexico entitled United States as Guardian of the Pueblo of Santa Ana v. Brown, No. 1814 Equity (D.N.M.1928), seeking to quiet title to this tract in the Pueblo. Mountain Bell was party to that suit. During the course of that litigation, the Pueblo entered into a right-of-way agreement with Mountain Bell, dated February 23, 1928, granting an easement to construct, maintain, and operate a telephone and telegraph line, the same line that is in controversy here. Acting pursuant to Sec. 17 of the Pueblo Lands Act of June 7, 1924, 43 Stat. 636, 641-642, the Secretary of the Interior approved the agreement. The United States then moved to have Mountain Bell dismissed from the action on the ground that it had obtained title to the right of way through the easement agreement. In granting this motion, the court noted that it appeared "that since the institution of this suit said defendant has secured good and sufficient title to the right of way and premises in controversy...."

In the present action Mountain Bell argues that it obtained a valid right of way across the Pueblo's land in 1928 and under Sec. 17 of the Pueblo Lands Act of June 7, 1924, 43 Stat. 636. It argues further that the Pueblo's claims are barred by the 1928 dismissal of the case involving the same parties and issues. On these grounds, Mountain Bell moved for summary judgment that no trespass existed from 1928 to the present. The district court held, however, that Sec. 17 did not authorize conveyance of lands by the Pueblo with the approval of the Secretary. The district court accepted the Pueblo's argument that Sec. 17 was intended as a prohibition against the alienation of Pueblo lands except as Congress may provide in the future. Its requirements of Congressional authorization and Secretarial approval paralleled and were intended to extend to the Pueblo the Nonintercourse Act's requirement of a treaty or convention entered into pursuant to the Constitution. See Acts of June 30, 1834, 4 Stat. 729, 730 Sec. 12 (codified at 25 U.S.C. Sec. 177), and February 27, 1851, 9 Stat. 574, 587 Sec. 7. The court further held that the Pueblo's claims were not barred by the 1928 dismissal order because that order did not constitute a final judgment.

Section 17 of the Pueblo Lands Act provides:

"No right, title, or interest in or to the lands of the Pueblo Indians of New Mexico to which their title has not been extinguished as 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 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." [Emphasis supplied.]

Mountain Bell challenges the argument of the Pueblo, upheld by the trial court, that Sec. 17 was intended as an extension to the Pueblos of the Nonintercourse Act, in prohibiting alienation of Pueblo lands except as Congress may provide in the future and as approved by the Secretary. Mountain Bell argues that the first clause of Sec. 17 requires Congressional approval for condemnations and other similar takings of Pueblo lands and that the second clause authorizes a Pueblo to alienate its lands if it obtains Secretarial approval. Analysis of these arguments requires an examination of the language, the historical background, the legislative history, and the administrative history of the Act.

The Nonintercourse Act required a treaty or convention to alienate Indian Lands, Act of June 30, 1834, 4 Stat. 729, 730 Sec. 12 (codified at 25 U.S.C. Sec. 177). The Act of February 27, 1851, 9 Stat. 574, 587 Sec. 7, extended all laws then in force regulating trade and intercourse with the Indian tribes to include Indian tribes in the Territory of New Mexico.

In State of New Mexico v. Aamodt, 10 Cir., 537 F.2d 1102, cert. denied 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572, a water rights case, we reviewed the historical background of the controversy, pp. 1105 and 1109, and pointed out, p. 1105, that the efforts of federal officials to protect the Pueblos' property were frustrated by the New Mexico territorial courts which held that the Pueblos were outside the protection of federal laws. This rationale was upheld by the Supreme Court in United States v. Joseph, 94 U.S. 614, 24 L.Ed. 295.

We noted, at p. 1105, that the 1910 New Mexico Enabling Act, 36 Stat. 557, 558-559, defined "Indian country" to include "all lands now owned or occupied by the Pueblo Indians" and stated that such lands are "under the absolute jurisdiction and control of the Congress of the United States." The constitutionality of this provision was upheld in United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107, which specifically overruled United States v. Joseph. The Court said, Id. at 39, 34 S.Ct. at 3, that,

"The people of the pueblos, although sedentary rather than nomadic in their inclinations, and disposed to peace and industry, are nevertheless Indians in race, customs, and domestic government."

The Court noted that the United States has treated the Pueblos "as requiring special consideration and protection, like other Indian communities." Id.

Because in the Joseph decision the Supreme Court decided that the Pueblo lands were not subject to the protective laws earlier passed by Congress, non-Indians were free to acquire Pueblo lands. The validity of titles so acquired became questionable when in Sandoval the Court held that the protective federal statutes did apply and presumably always had applied. Congress responded with the passage in 1924 of the Pueblo Lands Act, 43 Stat. 636. The Act established a "Pueblo Lands Board" to investigate the Pueblo lands and determine those cases in which the Indian title should be extinguished. The United States as guardian of the Pueblos was required to institute quiet title actions to settle adverse claims to Pueblo lands. Non-Indians claiming title could plead adverse possession and the statute of limitations, defenses not ordinarily available against the United States.

In 1926, the Court in United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023, reaffirmed Sandoval. In so doing, it said after referring to the 1834 and 1851 acts, p. 441, 46 S.Ct. p. 563:

"While there is no express reference in the provision to the Pueblo Indians, we think it must be taken as including them. They are plainly within its spirit and, in our opinion, fairly within its words, 'any tribe of Indians.' "

We echoed this language, noting the application of the Nonintercourse Act to the Pueblo Indians in Aamodt, supra. In Plains Elec. Gen. & Tr. Co-op. v. Pueblo of Laguna, 10 Cir., 542 F.2d 1375, 1376, we cited Candelaria as authority for the statement that "Lands of the Pueblos cannot be alienated without the consent of the United States." In United States v. University of New Mexico, 10 Cir., 731 F.2d 703, we noted that Congress extended the Nonintercourse Act to the Pueblos in 1851 and said that Sec. 17 of the Pueblo Lands Act of 1924 "reaffirmed that the Pueblos and their lands were fully under the guardianship of Congress and the protection of the Nonintercourse Act." At 706. In so doing we noted the following statement in United States v. Chavez, 290 U.S. 357, 362, 54 S.Ct. 217, 219, 78 L.Ed. 360:

"[T]he status of the Indians of the several Pueblos in New Mexico is that of dependent Indian tribes under the guardianship of the United States and that by reason of this status they and their lands are subject to the legislation of Congress enacted for the protection of tribal Indians and their property."

Thus we have three times held that the Pueblo's lands were under the protection of the Nonintercourse Act.

Mountain Bell argues that Sec. 17 was not a...