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Pueblo of Jemez v. United States

United States Court of Appeals, Tenth Circuit

June 26, 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

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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 title[1] 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, 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.

The Jemez Pueblo acknowledges that Congress enacted legislation in 1860 authorizing the Baca heirs to select up to five square tracts of vacant land totaling up to 496,447 acres anywhere within the Territory of New Mexico in order to settle a Mexican land grant dispute with the town of Las Vegas. An Act to confirm Private Land Claims in the Territory of New Mexico of June 21, 1860, Pub. L. No. 36-197, 12 Stat. 71 (1860 Act). The Baca heirs' first selection, Baca Location No. 1, included approximately 99,289 acres of land in and adjacent to the Valles Caldera, which was subsequently confirmed by both the Surveyor General's Office and the federal land department without notice to the Jemez Pueblo. Aplt. App. at 17.

Notwithstanding a determination by the Surveyor General of New Mexico that the land was " vacant," the Jemez Pueblo alleges the lands included in the Baca Location No. 1 were " exclusively possessed, used and occupied by Jemez Pueblo pursuant to the Pueblo's aboriginal Indian title," id. at 18 ¶ 82, and that the " Baca heirs received these lands subject to the continuing aboriginal Indian title of Jemez Pueblo," id. at 18 ¶ 83. Moreover, the Jemez Pueblo alleges that it continued to use and occupy the Valles Caldera for traditional purposes without any opposition or interference from the Baca family.

In 2000, pursuant to the Valles Caldera Preservation Act of 2000 (Preservation Act), Pub. L. No. 106-248, § 102, 114 Stat. 598, codified at 16 U.S.C. § § 698v to 698v-10,[7]

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the United States purchased the property interests of the Baca heirs' successors in interest -- the Dunnigan family -- in approximately 94,761 acres of the land in the Baca Location No. 1 in order to establish the Valles Caldera National Preserve. The Jemez Pueblo alleges that the United States purchased this property interest subject to its continuing aboriginal Indian title, and that shortly thereafter the government began limiting the Jemez Pueblo's access to the land.

B. Procedural History

The Jemez Pueblo filed suit under the QTA, 28 U.S.C. § 2409a, to quiet title to its interest in the lands of the Valles Caldera National Preserve. The government filed a motion to dismiss, essentially arguing the district court lacked subject matter jurisdiction because the Jemez Pueblo's claim accrued prior to 1946 and was therefore barred by the ICCA's five year statute of limitations. In response, the Jemez Pueblo contended that its aboriginal title was not extinguished by the Baca grant, and that its quiet title claim arose only when the United States began to interfere with and limit its use of the land in 2000. Accordingly, it contended, the QTA is applicable and the district court has jurisdiction to hear the case.

The district court granted the government's motion to dismiss, relying primarily on Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455 (10th Cir. 1987), to conclude that it lacked subject matter jurisdiction. Specifically, it held the Jemez Pueblo had a claim against the United States that accrued as a matter of law before 1946, and therefore its sole remedy was to have brought an action before the ICC before the claim became barred by the statute of limitations. It further concluded that the Jemez Pueblo was required by § 22 of the ICCA to litigate this claim in its prior ICC proceedings when it sought compensation and received money for a taking and extinguishment of aboriginal title to other Jemez lands.[8] Accordingly, the district court held the Jemez Pueblo's QTA action was barred by sovereign immunity.

C. Arguments on appeal

The Jemez Pueblo contends it continues to hold aboriginal title to the land within the Valles Caldera National Preserve, which includes the Baca Location No. 1, because neither the land transfer to the Baca heirs in 1860 nor the United States' purchase of the land in 2000 extinguished its aboriginal title. The district court therefore erred in concluding the ICCA barred its claim and in failing to exercise jurisdiction over the claim under the QTA's sovereign immunity waiver. The government responds that the district court correctly held pursuant to Rule 12(b)(1) that it lacks subject matter jurisdiction under the QTA because the Jemez Pueblo's claim is barred by § § 12 and 22 of the ICCA and is foreclosed by our decision in Navajo, 809 F.2d 1455. The government argues alternatively that the Complaint fails to state a claim under Rule 12(b)(6).

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II

STANDARD OF REVIEW AND THE ICCA

Federal Rules of Civil Procedure 12(b)(1) allows a court to dismiss a complaint for lack of subject matter jurisdiction. If the district court did so without taking evidence, as the court did here, our review is de novo. Becker v. Ute Indian Tribe of the Uintah and Ouray Reservation, 770 F.3d 944, 946 (10th Cir. 2014).

" 'Federal courts are courts of limited jurisdiction,' possessing 'only that power authorized by Constitution and statute.'" Gunn v. Minton, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). To be sure, " [f]ederal subject matter jurisdiction is elemental . . . and its presence must be established in every cause under review in the federal courts." Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1022 (10th Cir. 2012). " Indeed, '[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.'" Becker, 770 F.3d at 947 (quoting Kokkonen, 511 U.S. at 377); see also Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (" If jurisdiction is challenged, the burden is on the party claiming jurisdiction to show it by a preponderance of the evidence." ). " A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013).

The district court ruled that sovereign immunity barred the Jemez Pueblo's claim. " The concept of sovereign immunity means that the United States cannot be sued without its consent." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992). " The defense of sovereign immunity is jurisdictional in nature, depriving courts of subject-matter jurisdiction where applicable." Normandy Apartments, Ltd. v. United States Dep't of Hous. & Urban Dev., 554 F.3d 1290, 1295 (10th Cir. 2009). Thus, " [b]ecause general jurisdictional statutes, such as 28 U.S.C. § 1331, do not waive the Government's sovereign immunity, a party seeking to assert a claim against the government under such a statute must also point to a specific waiver of immunity in order to establish jurisdiction." Id. Consequently, the Jemez Pueblo may not " proceed without establishing that the United States has agreed to answer to [its] claims in court." See Sydnes v. United States, 523 F.3d 1179, 1182-83 (10th Cir. 2008).

The Jemez Pueblo contends the United States has waived sovereign immunity in this case under the QTA, 28 U.S.C. § 2409a, which provides in relevant part: " The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest." The QTA contains a twelve year statute of limitations in which a party other than a state is barred from filing suit unless " it is commenced within twelve years of the date upon which it accrued." § 2409a(g). An action under the QTA accrues when the party " knew or should have known of the claim of the United States." Id. It is undisputed, and the government concedes, that the Jemez Pueblo filed this quiet title action within twelve years of when, according to the Pueblo, the claim accrued. That is, the Jemez Pueblo contends its claim accrued only when the United States acquired an interest in the Valles Caldera in 2000 and began limiting the Jemez Pueblo's access to the land in a manner inconsistent with

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its aboriginal title. The government counters that the ICCA is a jurisdictional bar to the Jemez Pueblo's claim because the Jemez Pueblo had a pre-1946 claim against the United States regarding its aboriginal title to this land, which became barred when it failed to file suit within the five year statute of limitation period.

Until Congress enacted the ICCA in 1946, Pub. L. No. 79-726, 60 Stat. 1049, Indian tribes were not permitted to litigate claims " against the federal government without express congressional authorization." Oglala Sioux Tribe of Pine Ridge Indian Reservation v. United States Corps of Eng'rs, 570 F.3d 327, 331, 386 U.S.App.D.C. 417 (D.C. Cir. 2009); Navajo, 809 F.2d at 1460. To sue the government, Indian tribes had to petition Congress " for special jurisdictional acts authorizing the [Court of Claims] to hear their grievances against the United States; yet few of them succeeded," and " [f]or those who did succeed, the process was costly, burdensome, and time-consuming." Navajo, 809 F.2d at 1460.

As a result, Congress enacted the ICCA in 1946, which created the Indian Claims Commission, " a quasi-judicial body to hear and determine all tribal claims against the United States that accrued before August 13, 1946." [9] Id. ; ICCA § 2, 60 Stat. 1050. The ICCA imposed a five year statute of limitations period " on Indian claims in law and equity then existing and arising under the Constitution, federal law, and treaties between Indian tribes and the United States." Oglala Sioux Tribe, 570 F.3d at 331; ICCA § 12. " Congress deliberately used broad terminology in the Act in order to permit tribes to bring all potential historical claims and to thereby prevent them from returning to Congress to lobby for further redress." Oglala Sioux Tribe, 570 F.3d at 331. But the ICCA only " bars claims involving allotments or other property, claims involving title, claims to equitable relief, claims for damages, and related constitutional and procedural claims that accrued before 1946 and were not brought by August 13, 1951." Id. at 331-32. (emphasis added).

Before turning to the applicable legal standards and addressing the parties' arguments, an explanation of the history and legal concepts that govern aboriginal title and Indian land is necessary to understand the nature of the claims and to place in proper perspective the contested historical facts advanced by the parties. This history includes Supreme Court decisions and several 19th and 20th century developments between Spain, Mexico, and the United States.

III

THE HISTORY OF INDIAN LAW AND ABORIGINAL TITLE

The problem of recognizing possessory rights claimed by Indians has engaged the attention of jurists since European settlement of the Americas. In fact, the decisions concerning Indian law and aboriginal title cannot be understood without recognizing that the " dealings between the Federal Government and the Indian Tribes have regularly been handled as part of our international relations." Cohen, supra at 43. The main concepts of aboriginal title can be traced back to " Spanish origins, and particularly to doctrines developed by Francisco de Victoria, the real founder of modern international law." Id. at 44. The doctrine of Victoria essentially proposed that discovery of new lands gave " title to lands not already possessed," but because

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the " Indians were true owners, both from the public and the private standpoint, the discovery of them by the Spanish had no more effect on their property than the discovery of the Spaniards by the Indians had on Spanish property." Id. at 45.

Pope Paul III provided support for the doctrine of Victoria in 1537 when he said that " Indians are truly men" and that " Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property." Id. (internal quotation marks omitted). This declaration of human rights was affirmed by the United States in the Northwest Ordinance of July 13, 1787, " the first important law of the United States on Indian relations, . . . adopted two years before the Federal Constitution." Id. The Northwest Ordinance declared our national policy towards Indians, stating:

The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them

Id. at 41.

Just as the doctrine of respect for Indian possession first proposed by Victoria " became the guiding principle of Spain's Laws of the Indies," so too would the " promise of the Northwest Ordinance" become " the guiding principle of our Federal Indian Law." Id. at 45. Yet, before the Supreme Court's first important case concerning aboriginal title was decided, see Johnson v. M'Intosh, 21 U.S. 543, 5 L.Ed. 681 (1823), several historical events between Spain and Mexico took place that would impact the relationship between the pueblos and the United States Government.

A. Spain and Mexican Independence (1821)

In 1821, the Mexican revolutionary government adopted the Plan of Iguala, a revolutionary proclamation, in the final stage of the Mexican War of Independence from Spain. It declared that " [a]ll inhabitants of New Spain, without any distinction between Europeans, Africans, or Indians, are citizens of this Monarchy . . . and that the person and property of every citizen will be respected and protected by the government." United States v. Ritchie, 58 U.S. 525, 538, 15 L.Ed. 236 (1854) (quoting Plan of Iguala) (internal quotation marks omitted); see also Susan Scafidi, Native Americans and Civic Identity in Alta California, 75 N.D. L.Rev. 423, 432 (1999).

The Treaty of Cordova between Spain and Mexico, ratified on August 24, 1821, adopted the principles set forth in the Plan of Iguala and established Mexican Independence. See Ritchie, 58 U.S. at 538; Placido Gomez, The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants, 25 Nat. Resources J. 1039, 1059 (1985). Specifically, sections six, seven, and twelve created a provisional government which was to govern according to existing laws, so long as they were not contrary to the Plan of Iguala. See Ritchie, 58 U.S. at 538; Zia I, 11 Ind.Cl.Comm. at 133. The Mexican declaration of independence, issued on September 28, 1821, reaffirmed the principles of the Plan of Iguala. Zia I, 11 Ind.Cl.Comm. at 133. Three ...


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