Pueblo of Jemez v. United States, CIV 12-0800 JB\JHR

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Citation350 F.Supp.3d 1052
Docket NumberNo. CIV 12-0800 JB\JHR,CIV 12-0800 JB\JHR
Parties PUEBLO OF JEMEZ, a Federally Recognized Indian Tribe, Plaintiff, v. UNITED STATES of America, Defendant, and New Mexico Gas Company, Defendant-in-Intervention.
Decision Date25 October 2018

Thomas E. Luebben, Jr., Law Offices of Thomas E. Luebben, Sandia Park, New Mexico and Randolph H. Barnhouse, Justin J. Solimon, Christina S. West, Veronique Richardson, Dianna Kicking Woman, Karl E. Johnson, Tierra Marks, Barnhouse Keegan Solimon & West LLP, Los Ranchos de Albuquerque, New Mexico, Attorneys for the Plaintiffs

Jeffrey Wood, Acting Assistant Attorney General, Peter K. Dykema, Matthew Marinelli, Jacqueline M. Leonard, Amarveer Brar, Kenneth Rooney, Kristofor R. Swanson, United States Department of Justice, Environment & Natural Resources Division. Natural Resources Section, Washington, D.C., Attorneys for the Defendant United States of America

Kirk R. Allen, Elizabeth Reitzel, Miller Stratvert P.A., Albuquerque, New Mexico, Attorneys for the Intervenor Defendant



THIS MATTER comes before the Court on the Plaintiff's Motion in Limine to Exclude Certain Evidence, filed August 17, 2018 (Doc. 236)("MIL 1"). The Court held a hearing on September 14, 2018. The primary issue is whether evidence of land use by other than Plaintiff Pueblo of Jemez after 1848 -- the year when the Pueblo Indians can under United States jurisdiction -- is relevant to whether Jemez Pueblo holds continuing aboriginal title to the Valles Caldera.1 The Court denies MIL 1, because the United States Court of Appeals for the Tenth Circuit has expressly instructed the Court to consider such evidence. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1165 (10th Cir. 2015) ("Whether the Jemez Pueblo can establish that it exercised its right of aboriginal occupancy to these lands in 1860 and thereafter is a fact question to be established on remand, where it will have the opportunity to present evidence to support its claim."). Specifically, the Tenth Circuit has instructed the Court to consider evidence necessary to determine whether Jemez Pueblo's use of the Valles Caldera was exclusive as to other Indian Tribes. See 790 F.3d at 1165 ("[T]he ‘exclusive’ part of the test mean[s] ... that in order to establish aboriginal title, a tribe must show that it used and occupied the land to the exclusion of other Indian groups. " (internal quotation marks omitted)(emphasis in original) ). The Tenth Circuit also has instructed the Court to consider whether Jemez Pueblo's use of the Valles Caldera suffered interference by others after Congress granted the land to the Baca family in 1860. See 790 F.3d at 1166 ("[I]f there was actually substantial interference by others with these traditional uses before 1946, the Jemez Pueblo will not be able to establish aboriginal title."). Furthermore, because the expert report authored by Dr. Terence Kehoe contains relevant evidence of multiple Pueblos' use of the Valles Caldera, the Court will not exclude the substance of Dr. Kehoe's report. See Expert Report of Dr. Terence Kehoe at 19-20, filed August 31, 2018 (Doc. 249-1)("Kehoe Report"). The Court declines to ignore the Tenth Circuit's express directives, will therefore deny MIL 1, and will consider relevant evidence of land use by other than Jemez Pueblo after 1848.


The following facts are taken in large part from the Opinion of the Court of Appeals for the Tenth Circuit and supplemented with additional facts from the initial pleadings and subsequent briefs of both parties. The Court recognizes that some of these facts may be in dispute, and the Court is not making any findings of fact in this Memorandum Opinion and Order.

1. The Jemez Pueblo.

The Tenth Circuit summarized the relevant facts as follows:

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.[2 ] 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." [3]... 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 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, and roots for medicine; aspen and willow for drums and ritual objects; oak, cherry, and mahogany for bows and ritual objects; rosewood, plums, and reeds for arrows; obsidian and chert for stone tools; minerals for paint and pigments; spring water and evergreens for ceremonial rites; large and small game for ceremonial use; and feathers for ceremonial use and for arrows. The Jemez Pueblo alleges that by this native occupancy and use it has established aboriginal title to the lands at issue in the Valles Caldera National Preserve.

790 F.3d at 1148-49.

2. Treaty of Guadalupe Hidalgo and the Baca Land Grant.

In 1848, the United States signed the Treaty of Guadalupe Hidalgo, thereby ending the Mexican-American war and acquiring the territory of New Mexico.4 See Treaty of Guadalupe Hidalgo, U.S.-Mex., Feb. 2, 1848, art. VIII, 9 Stat. 922, 928. In the Treaty of Guadalupe Hidalgo, the United States agreed to respect pre-existing property rights within the territory. See 9 Stat. at 929-930. Congress thereafter established the office of Surveyor-General for New Mexico and ordered the Surveyor-General "to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico," and to make a full report on the validity of the various claims. Act of July 22, 1854, 10 Stat. 308 ("1854 Act"). Congress also ordered a report "in regard to all pueblos existing in the Territory, showing the extent and locality of each, stating the number of inhabitants in the said pueblos, respectively, and the nature of their titles to the land." 10 Stat. at 308. The report "shall be laid before Congress for such action thereon as may be deemed just and proper, with a view to confirm bona fide grants, and give full effect to the treaty." 10 Stat. at 308.

Based in part on this report, Congress passed an act confirming land claims that several pueblos, including Jemez Pueblo, made, thereby relinquishing "all title and claim of the United States to any of said lands." Pueblo Lands Act of 1924, 43 Stat. 636 (1924), as amended by Act of May 31, 1933, 48 Stat. 108. See Survey of Conditions of the Indians in the United States: Hearings Before the Subcomm. of the S. Comm. on Indian Affairs, 71st Cong. 11,081-11,317 (1930) (analyzing reasons for Pueblo...

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