909 F.2d 1387 (10th Cir. 1990), 88-2413, Pittsburg & Midway Coal Min. Co. v. Yazzie

Docket Nº:88-2413, 88-8071.
Citation:909 F.2d 1387
Party Name:PITTSBURG & MIDWAY COAL MINING COMPANY, Plaintiff-Appellant, v. Kee Ike YAZZIE, Roselyn D. John, Romero Brown, Lewis Calamity, Peter J. Korth, and David C. Brunt, Defendants-Appellees.
Case Date:May 30, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1387

909 F.2d 1387 (10th Cir. 1990)



Kee Ike YAZZIE, Roselyn D. John, Romero Brown, Lewis

Calamity, Peter J. Korth, and David C. Brunt,


Nos. 88-2413, 88-8071.

United States Court of Appeals, Tenth Circuit

May 30, 1990

As Amended Aug. 3, 1990.

Page 1388

Christopher Lane, Sherman & Howard, Denver, Colo. (Mary J. Kelly and G. Sonny Cave, Sherman & Howard, Denver, Colo., James G. di Zerega and Kent R. Olson, Englewood, Colo., with him on the briefs), for plaintiff-appellant.

Paul E. Frye, Nordhaus, Haltom, Taylor, Taradash & Frye, Albuquerque, New Mexico (Michael P. Upshaw, Atty. Gen., and Paull Mines, Navajo Nation Dept. of Justice, Window Rock, Arizona, with him on the brief), for defendants-appellees.

Lynn H. Slade, Walter E. Stern, William C. Scott and George R. McFall, Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico, on the brief, for amici curiae, Santa Fe Pacific R.R. Co. and Cerrillos Land Co.

Hal Stratton, Atty. Gen., and Christopher D. Coppin, Asst. Atty. Gen., Santa Fe, N.M., on the brief, for amicus curiae, the State of N.M.

Melody L. McCoy and Robert T. Anderson, Native American Rights Fund, Boulder, Colo., on the brief for amici curiae, Cheyenne-Arapaho Tribes and Native Village of Venetie.

Before MOORE, ANDERSON and BALDOCK, Circuit Judges.


This case raises the question of whether a 1907-08 addition to the Navajo Reservation of nearly 1.9 million acres in northwestern New Mexico was terminated by two Executive Orders issued in 1908 and 1911. [*] The plaintiff-appellant is the Pittsburg and Midway Coal Mining Company ("P & M"), whose South McKinley mine is on the land in question and whose "source gains" from the mine's coal sales are taxed by the defendant Navajo Tribe Tax Commission ("Tribe"). P & M has paid the tax under protest since 1986. Reply Brief at 20 n. 17. P & M filed an action in federal court for an injunction and declaratory judgment that the Tribe lacked jurisdiction under federal law to tax the mine. The Tribe replied that the area in question was

Page 1389

still part of the Navajo Reservation and that, therefore, the federal court should abstain pursuant to the "Indian abstention doctrine" and allow the taxation question to be heard first in Tribal forums. The Tribe asserted that, even if the mine were not on the Reservation, the Indian abstention doctrine should still apply because the mine was within "Indian country" as defined by 18 U.S.C. Sec. 1151. After a two-week evidentiary hearing, the trial court ruled that the mine was located within the Reservation boundaries and that, therefore, abstention properly precluded the court from ruling initially on the tax question. It dismissed P & M's causes of action without prejudice and did not reach the issue of whether the mine, even if outside the Reservation boundaries, was nonetheless within Indian country. P & M appeals this final order. 1 We conclude that the mine is not within the Reservation boundaries. Therefore, we reverse the decision of the trial court and remand for consideration of whether the mine, although outside the Reservation boundaries, is nonetheless within Indian country and, if so, whether the district court should abstain and allow the Navajo legal system to address the taxation issue first. The remainder of this opinion is organized as outlined:

I. Background

A. History of the 1907-08 Addition to the Navajo Reservation

B. The District Court Opinion

II. Legal Analysis

A. Legal Standards

B. General Intent of Executive Orders 709/744 and Subsequent Language "Restoring" Unallotted Lands "to the Public Domain"

i. Restoration Language as Operative Language of Section Twenty-five and Executive Orders 1000/1284: Other Federal Court Cases Distinguished

ii. Meaning of Restoration Language in Historical Context

a. Interpretation of Congressional Restoration Language by the Federal Courts

b. Executive Branch Interpretation of Restoration Language Prior to Executive Orders 1000/1284

iii. Restoration Language in the Context of Executive Orders 709/744, Section Twenty-five, and Executive Orders 1000/1284: Legislative History and Surrounding Circumstances

iv. Subsequent Congressional and Executive Action

v. Summary

C. Subsequent Demographics

D. Specific Intent of Restoration Language with Respect to Allotted Lands

E. Conclusion


A. History of the 1907-08 Addition to the Navajo Reservation.

The original Navajo Reservation in Arizona and New Mexico was created by the Treaty of 1868 and expanded by subsequent Executive Orders ("EOs"), particularly those of 1878, 1880, 1882, 1884, and 1900. Between 1868 and 1907, the Reservation grew from the three million acres provided in the Treaty to more than eleven and one-half million acres in Arizona, New Mexico, and Utah. Ex. 64 at 1-2. 2 Although

Page 1390

extensive in area, the Reservation in 1907 represented far less land than the Navajos had used and occupied in previous centuries. The Reservation and land surrounding it were largely desert with limited water supplies, and the Navajos needed large amounts of territory to graze their sheep successfully. See, e.g., Ex. 10 at 3-4.

In March 1907, the Superintendent of the Navajo Agency at Fort Defiance, Arizona, W.H. Harrison, raised with Interior Department officials the plight of Navajos living on public domain lands to the east and south of the Reservation, whose livelihood as sheep grazers was threatened by the encroachment of white and Mexican stockmen who were appropriating the limited water holes for themselves. See Exs. 6 at 2-3, 7 at 5-6, 10 at 4. Harrison asked the General Land Office to withdraw some 131 townships from general entry to allow Navajos on the land to receive 160-acre allotments in severalty without interference from white and Mexican stockmen. Ex. 6 at 2-3. The Commissioner of the General Land Office, R.A. Ballinger, declined to do so, Ex. 11 at 2-3, stating that the Navajos were sufficiently protected by the allotting process established under section four of the General Allotment Act of 1887, ch. 119, 24 Stat. 388, 389, as amended by the Act of February 28, 1891, ch. 383, 26 Stat. 794, 795 ("the General Allotment Act"). 3 Alternatively, Superintendent Harrison suggested to Francis Leupp, the Commissioner of Indian Affairs, 4 that the grazing problem be solved either by (1) extending the Reservation into townships south and east of the existing Reservation and convincing the Santa Fe Railroad Company to exchange its holdings therein for others elsewhere, or (2) allotting the Indians all of the public lands near existing or potential water storage facilities. Ex. 7 at 6.

By the time of the Harrison correspondence, the conflict between the public domain Navajos and white and Mexican stockmen was already sharply drawn. On March 6th of the same year, the Territorial Governor of New Mexico had written to Interior Secretary James Garfield, enclosing a joint memorial of the New Mexico Territorial Legislature urging the federal government to keep the Navajos within the boundaries of their Reservation and to stop them from appropriating water for their sheep on public domain lands. Ex. 10 at 7-10. On July 9, 1907, New Mexico Territorial Delegate to Congress W.H. Andrews wrote to the Acting Commissioner of Indian Affairs C.F. Larrabee protesting any enlargement or extension of the Reservation. Ex. 12 at 2. Larrabee responded that current Indian Office 5 policy was to break up tribal relations and integrate the Indians into the communities in which they lived by alloting them lands in severalty as provided for by the General Allotment Act. Id. at 6. In this way, Larrabee said, the Office could secure permanent homes for off-reservation Indians on public domain land. Id. In other words, he evaded the issue of whether any extension to the Reservation was under consideration.

Over the summer, Commissioner of Indian Affairs Leupp met with the Navajos in Council. It appears that Leupp--in contrast to Ballinger--accepted the view that withdrawal of the lands from the public domain was needed. See Exs. 13, 14. Leupp, however, told both the Navajos in Council and their staunch advocate Father Anselm Weber, a Franciscan priest at St. Michael's Mission near the Arizona-New Mexico line, that any recommendation to

Page 1391

the President would be for only a temporary extension to the existing Reservation, limited to the purpose of completing the public domain allotments to the off-reservation Navajos without competition from other stockmen. Id. In August 1907, Leupp shared the same information with Superintendent Harrison, rejecting a permanent extension of the Reservation but supporting an extension for temporary purposes. Ex. 13. On November 6, 1907, Leupp recommended to Interior Secretary Garfield an EO temporarily withdrawing lands and adding them to the Reservation in order to protect the off-reservation Indians until they could receive the allotments to which they were entitled. Leupp noted that the Indians had lived in the area for generations and had abstained from violence even though they were being driven from their homes and watering sites by whites. An EO was seen as the appropriate mechanism to secure their grazing lands and watering holes, free from the competing demands of non-Indians. Ex. 15 at 3. Leupp's letter to Garfield contained a draft EO which became EO 709. Ex. 15 at 5-6.

Secretary Garfield wrote to President Theodore Roosevelt, recommending Leupp's proposed EO. Ex. 16. Garfield enclosed Leupp's November 6th recommendation, along with a...

To continue reading