790 F.3d 1143 (10th Cir. 2015), 13-2181, Pueblo of Jemez v. United States

Docket Nº:13-2181
Citation:790 F.3d 1143
Opinion Judge:SEYMOUR, Circuit Judge.
Party Name:PUEBLO OF JEMEZ, a federally recognized Indian Tribe, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. THE NATIONAL CONGRESS OF AMERICAN INDIANS; THE ASSOCIATION ON AMERICAN INDIAN AFFAIRS; AMERICANS FOR INDIAN OPPORTUNITY; INDIAN LAND TENURE FOUNDATION; NATIVE LANDS INSTITUTE, Amici Curiae
Attorney:Karl E. Johnson (Randolph H. Barnhouse, on the briefs) of Johnson Barnhouse & Keegan LLP, Los Ranchos De Albuquerque, New Mexico, for Plaintiff-Appellant. Robert P. Stockman, Attorney, Environment & Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Sam Hirsch, Acting Assis...
Judge Panel:Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.
Case Date:June 26, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

The Pueblo of Jemez brought suit against the United States under the federal common law and the Quiet Title Act (QTA), seeking to quiet its allegedly unextinguished and continuing aboriginal title to the lands of what was known as Valles Caldera National Preserve. The government filed a motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The district court held it lacked subject matter... (see full summary)

 
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790 F.3d 1143 (10th Cir. 2015)

PUEBLO OF JEMEZ, a federally recognized Indian Tribe, Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA, Defendant - Appellee.

THE NATIONAL CONGRESS OF AMERICAN INDIANS; THE ASSOCIATION ON AMERICAN INDIAN AFFAIRS; AMERICANS FOR INDIAN OPPORTUNITY; INDIAN LAND TENURE FOUNDATION; NATIVE LANDS INSTITUTE, Amici Curiae

No. 13-2181

United States Court of Appeals, Tenth Circuit

June 26, 2015

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of New Mexico. (D.C. No. 1:12-CV-00800-RB-RHS).

Karl E. Johnson (Randolph H. Barnhouse, on the briefs) of Johnson Barnhouse & Keegan LLP, Los Ranchos De Albuquerque, New Mexico, for Plaintiff-Appellant.

Robert P. Stockman, Attorney, Environment & Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Sam Hirsch, Acting Assistant Attorney General; Mark R. Haag and Kenneth D. Rooney, Attorneys, Environment & Natural Resources Division, U.S. Department of Justice, Washington, D.C., with him on the brief; Cassandra Casaus Currie, Office of the General Counsel, U.S. Department of Agriculture, and Michael Williams, Office of the Solicitor, U.S. Department of the Interior, Washington, D.C., Of Counsel on the brief) for Defendant-Appellee.

Kim Jerome Gottschalk, Susan Y. Noe, and Matthew L. Campbell, of Native American Rights Fund, Boulder, Colorado, filed an Amici brief for The National Congress of American Indians and The Association on American Indian Affairs.

Gregory P. Barbee of Sheppard Mullin Richter & Hampton, LLP, Los Angeles, California, filed an Amici brief for Americans for Indian Opportunity, Indian Land Tenure Foundation, and Native Lands Institute.

Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.

OPINION

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SEYMOUR, Circuit Judge.

The history of Indian law and in particular " decisions of the Supreme Court recognizing the validity of original Indian title1 make the existence and extent of such aboriginal ownership a relevant issue in title examinations whenever a chain of title is traced back to a federal grant or patent." Felix S. Cohen, Original Indian Title, 32 Minn. L.Rev. 28, 43 (1947).2 Not surprisingly, then, " [g]rantees who have relied on the Great Seal of a federal department as assuring the validity of land grant titles have not infrequently discovered

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to their sorrow the truth of the old French saying, 'Meme le plus belle fille du monde ne peut donner que ce que l'a.' Not even the Federal Government can grant what it does not have." Id.

The Pueblo of Jemez brought this action against the United States under the federal common law and the Quiet Title Act (QTA), 28 U.S.C. § 2409a, et seq., seeking to quiet its allegedly unextinguished and continuing aboriginal title to the lands of what is now the Valles Caldera National Preserve. The government filed a motion to dismiss for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The district court held it lacked subject matter jurisdiction as a matter of law and dismissed the action pursuant to Rule 12(b)(1). It reasoned that sovereign immunity barred the action based on its conclusion that the Jemez Pueblo's title claim against the United States accrued in 1860 when the United States granted the lands in question to the heirs of Luis Maria Cabeza de Baca (the Baca heirs). The claim thus fell within the exclusive jurisdiction of the Indian Claims Commission Act (ICCA),3 which waived sovereign immunity and provided a cause of action to all Indian claims against the government that accrued before 1946 so long as they were filed within a five year statute of limitations period. ICCA § 12, 25 U.S.C. § 70k (1976). Because the claim was not so filed, it became barred by sovereign immunity.

The Jemez Pueblo appeals, contending that its aboriginal title was not extinguished by the 1860 grant to the Baca heirs and that its claim for interference with its Indian title did not accrue until 2000, after the United States acquired an interest in the Valles Caldera and began interfering with the Jemez Pueblo's access to the land. Therefore, it argues, it has a current claim against the United States under the QTA.

We reverse and remand for further proceedings. This appeal is not about whether the Jemez Pueblo holds aboriginal title. On remand, the Jemez Pueblo will have to prove that it had, and still has, aboriginal title to the land at issue in the case. This appeal concerns whether the 1860 Baca grant extinguished the Jemez Pueblo's alleged aboriginal title to the lands which are the subject of this action. We hold it did not and the district court erred in concluding, as a matter of law, that the 1860 Baca grant itself provided a pre-1946 claim against the United States the Jemez Pueblo could have brought under the ICCA. Accordingly, we reverse the district court's dismissal of this action for lack of subject matter jurisdiction.

We also decline the government's alternative invitation to dismiss the action for failure to state a claim under Rule 12(b)(6), an issue the district court did not address. We are not persuaded the Complaint fails as a matter of law to state a claim.

On remand, the Jemez Pueblo will have the burden to establish, as a matter of fact, that it has aboriginal title. In so doing, it will also necessarily be establishing that it did not have a pre-1946 claim against the United States for permitting interference with its aboriginal title.

I

BACKGROUND

A. The Jemez Pueblo

The following facts are taken directly from the Complaint, which we accept as true and view in the light most

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favorable to the plaintiff. See Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (Rule 12(b)(6)); Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (Rule 12(b)(1)).4

The ancestral Jemez people have used and occupied the lands of the Valles Caldera National Preserve and the surrounding areas in the Jemez Mountains of New Mexico since at least 1200 CE.5 The ancestral Jemez, whose descendants comprise the modern Jemez Pueblo, a federally recognized tribe, have for more than 800 years been the predominant and primary occupants and land users of the Jemez Mountains, including the Valles Caldera National Preserve and the greater Rio Jemez watershed. The Valles Caldera is a dormant crater of a supervolcano located at the center of the Jemez Mountains. The crater rim itself is twenty miles in diameter and is surrounded by four high-mountain valleys and eleven resurgent volcanic domes. The crater rim, high-mountain valleys, and volcanic domes are located within the exterior boundaries of the Valles Caldera National Preserve.

The Jemez Pueblo is made up of the ancestral Jemez populations of Towa-speaking pueblos, including the Pecos Pueblo and the Jemez Pueblo village of Walatowa. The ancestral Jemez Pueblo's aboriginal title allegedly included the Rio Jemez drainage and the Valles Caldera, an area known to the Pueblo Jemez as the " western Jemez homeland." 6 Aplt. App. at 9 ¶ 17. The western Jemez homeland includes a portion of the land at issue in this case within the Valles Caldera National Preserve and covers an area of more than 1,100 square miles in and around the Jemez Mountains. It includes the entire Rio Jemez drainage system above Walatowa, the modern Jemez Pueblo village, and sections of the Rio Puerco drainage west of the Jemez Mountains.

The western Jemez homeland contains ancestral Jemez Pueblo villages, sacred areas, and ceremonial shrines where the ancestral Jemez have lived since migrating from the mesa and canyon country to the northwest prior to 1200 CE. The Jemez Pueblo's oral history refers to the area to the northwest and describes the great southern migration to its western Jemez homeland. Archeological investigations in the western homeland have found at least sixty pueblo villages linked with a network

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of trails and many thousand farmhouse sites, agricultural fields, ceremonial sites, sacred areas, mineral procurement areas, camp sites, and other areas associated with the ancestral Jemez. The ancestral Jemez population in the western homeland has ranged from about 10,000 to 15,000 during the prehistoric period and from 7,000 to 10,000 during the Spanish colonial period.

The ancestral Jemez maintained an extensive network of agriculture and farming practices in the Valles Caldera and Jemez Mountains. The Valles Caldera contains many important sacred areas and religious sites of the traditional ancestral Jemez culture and the area is greatly valued by the Jemez Pueblo as a spiritual sanctuary. The ceremonial sites and gathering areas are still actively used by the Jemez Pueblo today and are crucial to the continuing survival of traditional Jemez Pueblo culture and religion. Ancient religious pilgrimage trails link Walatowa to sites within the Valles Caldera, including Redondo Peak and sacred springs, and the Jemez Pueblo members continue to make religious pilgrimages to these sites to leave prayer offerings and conduct rituals. The Jemez Pueblo hunt societies make lengthy visits to the Valles Caldera to hunt and conduct religious ceremonies and initiations of new members. Moreover, the mineral and hot springs within the Valles Caldera are used by the Jemez Pueblo's medical societies for healing.

The Jemez continue to rely on the Valles Caldera for many critical resources, as they have done for more than 800 years, including the land and water for livestock; plants and animals on the land for subsistence living; timber for construction and firewood; mountain and forest shelter from the elements; plants, herbs...

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