Feds seek Jemez Pueblo claim dismissal

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Jemez Pueblo > Plans to vigorously defend indigenous title to Preserve

By Arin McKenna

First of a two-part series.

The Justice Department has filed a motion in U.S. District Court in Albuquerque to dismiss the Jemez Pueblo lawsuit to reclaim tribal lands which encompass much of the Valles Caldera National Preserve.

The government’s motion focuses on a claim settled under the 1946 Indian Claims Commission Act called Pueblo of Zia, et al v. United States, in which Zia, Jemez and Santa Ana Pueblos sought compensation for an alleged “taking” of approximately 520,000 acres of land. Attorneys argued that the United States had allowed others to take possession of those lands “in derogation of the rights of the petitioners.”

The Valles Caldera land was not part of that lawsuit or settlement, but federal attorneys are now claiming that the ICC’s authority to “hear and determine all tribal claims against the United States that accrued before Aug. 13, 1946” — and a five-year window to file those claims —precludes any later claims. The motion argues that “Congress vested the ICC with expansive and exclusive jurisdiction to litigate all pre-1946 Indian-claims.”

Another statement reads, “Having slept on their claims that were clearly within the jurisdiction of the ICC, Plaintiff cannot, nearly 160 years later, bring a quiet title action ‘without violating both the letter and the intent of the Indian Claims Commission Act.’ ”

The government case leans heavily on the ICCA’s “finality provision,” which reads: “(1) payment of any claim after a determination under the Act shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy. (2) a final determination against a claimant made and reported in accordance with the Act shall forever bar any further claim or demand against the United States arising out of the matter involved in the controversy.”

Attorney Tom Luebben, representing Jemez Pueblo, notes that the specific wording about “matters involved in the controversy” limits the decision to claims brought before the ICC.

“Jemez never sought compensation for the Valles Caldera, and compensation was never awarded,” Luebben said. “The three pueblos’ attorneys conceded a ‘taking’ by the government only of the lands specifically identified in that case. They did not allege a ‘taking’ of, or seek compensation for, any other lands.”

Luebben also pointed out that the second clause is not applicable, since the settlement was in favor of the three pueblos, not against them.

Another point in the pueblo’s favor is that indigenous claims against the government were not ended by the Indian Claims Commission Act. Luebben points to the 1971 Alaskan Native Claims Settlement Act and ongoing Indian water rights adjudications and settlements as proof that the ICC was not the exclusive forum or remedy for all tribal claims.

“How could that happen if the ICCA itself extinguished all claims not filed there? It would have extinguished all Alaska Native claims and all unquantified Indian water rights now being adjudicated in the West,” Luebben said.

Two developments prompted Jemez to file suit. One was the federal government’s purchase of 94,761 acres of the Baca Ranch from the Dunnigan family on July 25, 2000, to create the Valles Caldera Preserve.

That purchase allowed a lawsuit under the 1976 Quiet Title Act, which gives plaintiffs the right to sue the government for title to real property in which the government claims an interest. Jemez Pueblo is suing for repossession of its traditional lands under the federal common law of Indian title.

“Jemez Pueblo did not have a claim against the United States until the United States occupied the Baca Ranch after purchasing grant title in the year 2000,” Luebben said. “Although Congress allowed the heirs of Luis Maria Cabeza de Baca to select 500,000 acres of land anywhere in New Mexico Territory in settlement of conflicting Spanish grant claims in the area of Las Vegas, N.M., Congress did not intend to extinguish Jemez Pueblo’s Indian title to the Valles Caldera.”

The federal filing claims that “The United States is immune from suit, unless it consents to be sued.” However, both the ICCA and the Quiet Title Act waive the government’s sovereign immunity for certain claims.

One distinguishing factor between the ICC and the QTA is that the ICC only allowed for monetary compensation, not return of Indian land. The Act received no funding from Congress, so tribal lawyers worked on a contingency basis and they were motivated to claim the government took Indian land, whether or not the government actually did, in order to get money judgments, often for only pennies an acre, from which the lawyers were paid. Many tribes and tribal claims lawyers were compensated for land “takings” that never actually occurred.

Luebben noted that Jemez Pueblo has sent letters to Secretary of the Interior Ken Salazar informing him of the lawsuit and asking him to meet with them. Salazar has not responded to either letters or phone calls.

In the meantime, Jemez Pueblo continues to prepare its case.

“We will vigorously defend this motion to dismiss by the United States, and we think that we are very right on the law,” Luebben said. “That doesn’t mean that we don’t have hurdles to jump over. Just look at the history of Indian land litigation.”

Look for the second part of this series in an upcoming edition of the Los Alamos Monitor to learn more about that litigation history as it relates to this current claim.