Pittsburg & Midway Coal Min. Co. v. Yazzie
Decision Date | 30 May 1990 |
Docket Number | 88-8071,Nos. 88-2413,s. 88-2413 |
Parties | 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. |
Court | U.S. Court of Appeals — Tenth Circuit |
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.
A. History of the 1907-08 Addition to the Navajo Reservation
B. The District Court Opinion
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 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.
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.
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 Secretary Garfield wrote to President Theodore Roosevelt, recommending Leupp's proposed EO. Ex. 16. Garfield enclosed Leupp's November 6th recommendation, along with a copy of Superintendent Harrison's letter of September 14, 1907 describing the lands involved. He also enclosed a copy of Father Weber's letter of September 5, 1907 to Superintendent Harrison, in which Father Weber reiterated his and Harrison's common understanding that the extension was to be made "only for the purpose of allotment, and is to last only till the allotments are made." Id.; Ex. 14 at 3. The EO was signed on November 9, 1907 by President Roosevelt and issued as Executive Order 709, "withdrawing from sale and settlement" certain lands in New Mexico and Arizona to the east and south of the Navajo Reservation and setting them apart "as an addition to the present Navajo reservation." 6 Exec. Order No. 709 (1907) reprinted in 3 C. Kappler, Indian Affairs: Laws and Treaties, 669 (1913).
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...
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