On June 26, 2015, in Pueblo of Jemez v. the United States,1 the United States Court of Appeals for the Tenth Circuit reversed a district court ruling that had dismissed the Pueblo of Jemez' (Pueblo) claim seeking the return to the Pueblo ownership of lands within a Spanish land grant recently acquired by the United States on jurisdictional grounds. The Court of Appeals' reversal allows Pueblo to present the merits of its claims that it retains aboriginal title to the lands.
The Case: In 2012, the Pueblo filed suit in federal district court under the federal Quiet Title Act (QTA) seeking to quiet title to roughly 95,000 acres that had been the subject of a Spanish land grant, referred to as the Baca Location No. 1, confirmed by the United States Congress in 1860 after the Territory of New Mexico was acquired from Mexico through the Treaty of Guadalupe-Hidalgo. The United States originally acquired title to the Baca Location No. 1 lands in 2000. The lands passed back into private ownership until 2015, when the lands were again transferred to the United States. The United States moved to dismiss the case claiming that the Pueblo's claim arose in 1860 and consequently should have been presented pursuant to the Indian Claims Commission Act (ICCA), which waived federal immunity from suit for tribal claims against the United States arising before 1946 for the taking of lands, but required any such claim to be presented to the Indian Claims Commission (ICC), a tribunal created by the Act, by 1951. The district court, having found that the ICCA provided the exclusive remedy for the Pueblo's claim, dismissed the claims because the action was not timely filed and the United States was, therefore, immune from suit and had not waived its immunity.
A unanimous panel of the Tenth Circuit concluded that if the Pueblo holds unextinguished aboriginal title to the lands, then no claim needed to be presented to the ICC, and the Pueblo is free to pursue its aboriginal title claims under the QTA. In addition, the Pueblo has the burden to establish that the actions of the United States in granting the lands to the Baca family did not interfere with its exercise of rights protected under aboriginal title prior to 1946. In the event the Pueblo cannot meet that burden, the Pueblo's claims may yet be barred due to the exclusive remedy provisions of the ICCA.
Historical Backdrop: From Time Immemorial to Sovereign Roles of Spain, Mexico and the United States. According to the Pueblo's Complaint, Pueblo members have used and occupied the lands in dispute since at least 1200, over 800 years ago. The area was used for agricultural purposes, mineral collection, hunting, medicinal and healing activities, and religious and traditional ceremonies. The Pueblo alleges that its members pursued these activities uninterrupted since 1200. In 1860, the United States confirmed the Baca Location No. 1 lands as belonging to the Baca family, after the Surveyor General concluded that the lands were "vacant." The Pueblo alleged, however, that the rights given to the Baca family pursuant to Baca Location No. 1 were subject to the Pueblo's prior and paramount aboriginal rights. In addition, the Pueblo alleges its members continued their traditional uses without interference from the Baca family and its successors.
In 2000, the United States acquired the Baca Location No. 1 lands from the Dunnigan family, successors to the Baca family. In its complaint, the Pueblo alleged that only after the United States acquired the lands in 2000 were actions taken that interfered with the Pueblo's access to the area in dispute. Therefore, the Pueblo contended that its claims only arose in 2000, and should be heard under the QTA since the claims were filed within its twelve year statute of limitation and are not barred by the ICCA's five year statute of limitations.
Tenth Circuit's Legal Analysis: The Pueblo Should Have an Opportunity to Prove that Interference with its Rights Arose Only After 2000, and to Prove Aboriginal Use and Occupancy. The Tenth Circuit held that the 1860 Baca Grant did not extinguish the Pueblo's claimed aboriginal title. The court noted, however, on remand that the Pueblo had to establish, as a matter of fact, that it has aboriginal title, and that its aboriginal uses were not disturbed until after the United States acquired title in 2000. An important point underlying the Tenth Circuit's analysis arises from historical laws, treaties, and international law principles applicable beginning during the period when Spain had sovereignty over what is now the State of New Mexico, extending through the 1821-1848 period that Mexico exercised sovereignty over the area, and continuing to the present under principles Chief Justice John Marshall established in his early trio of Indian law cases in the 1820s and 1830s: To the extent Native American groups have used and occupied areas, those aboriginal rights will be respected.2 Against this backdrop, the court reiterated that the "Indian right of occupancy is considered as sacred as the fee-simple of whites," and can only be "extinguished by Congress's plain and unambiguous intent, which will not be lightly implied."3 The court found no language in the 1860 Baca Grant demonstrating Congress' unambiguous intent to extinguish the Pueblo's aboriginal title. The court rejected the argument that the Surveyor General's conclusion that the land was "vacant" extinguished aboriginal title, because the Surveyor General lacked authority to extinguish title. In sum, the court concluded that the Baca heirs were granted fee title subject to any Pueblo aboriginal rights.
The court also rejected the United States' argument that, even if the Baca Grant did not extinguish the Pueblo's aboriginal title, it placed a cloud on the title, such that the Pueblo's claim accrued in 1860. The court reasoned that "simultaneous occupancy and use of land pursuant to fee title and aboriginal title could occur because the nature of Indian occupancy differed significantly from the occupancy of settlers . . . ."4 Thus, held the court, the Baca's use of the land was not necessarily inconsistent with the Pueblo's aboriginal title. The court noted that, on remand, the Pueblo would need to demonstrate "actual, exclusive, and continuous use" of the land, although the court reasoned that the exclusive use element is limited to a showing that the Pueblo excluded other Indian groups, and not the Baca heirs.
Before remanding to the district court, the Tenth Circuit had to address one final hurdle: the fact that federal courts, including the Tenth Circuit, have consistently held that claims that accrued prior to 1946 were subject to the exclusive jurisdiction of the ICC.5 The Pueblo of Jemez court distinguished the Tenth Circuit's earlier Navajo opinion, in which the court held that the Navajo Nation's quiet title claim against the United States were time barred under the ICCA, on three grounds. First, the Pueblo of Jemez court noted that the claim in Navajo was based on a claim of title granted by Executive Order, and not aboriginal title. The court explained that, at the time of the Executive Order, the President's authority was limited to granting transitory, possessory rights to tribes. Second, the Navajo Nation conceded that certain Executive Orders were intended to extinguish the Nation's aboriginal title. Third, the Pueblo of Jemez court stated that the final Executive Order at issue in Navajo expresses clear intent to extinguish the Nation's claim to the lands at issue. The Tenth Circuit reasoned that Navajo could not and did not trump Supreme Court case law holding that aboriginal title cannot be extinguished "except by clear and unambiguous congressional intent."6 Thus, the Tenth Circuit held that, on the record before it, the United States had failed to show that the Pueblo was required to bring a claim against the United States by 1951 under the statute of limitations of the ICCA.
Take Away: The United States has not yet filed a petition for a writ of certiorari and its time to do so has not yet run. The Tenth Circuit's decision, if not challenged or not overturned upon review by the United States Supreme Court, may lead to some uncertainty as to the status of title for lands claimed to be subject to aboriginal title. The unique factual and historical circumstances giving rise to the decision, however, should minimize that uncertainty. It is noteworthy that the United States did not assert a laches as a defense in this case. In a case involving laches, City of Sherrill v. Oneida Indian Nation,7 the United States Supreme Court reasoned that "longstanding observances and settled expectations are prime considerations," when a party asserts a right to sovereign control over lands. It is unclear how the Tenth Circuit would have ruled if a laches claim was presented to it.