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Second in a two-part series
In the Justice Department’s motion to dismiss the Jemez Pueblo lawsuit to reclaim tribal lands in Valles Caldera National Preserve, the government asserts that earlier land claims litigation divested the pueblo of its aboriginal title.
“Since around the beginning of the last century, popular understanding of Indian land rights has been based upon a political and cultural assumption that somehow or other all aboriginal Indian titles outside of BIA recognized reservation boundaries as somehow or other ‘taken,’” said Attorney Tom Luebben, who is representing Jemez Pueblo.
The government argument leans heavily on a claim that Jemez lost its aboriginal title in 1860 when Congress settled a claim by heirs of Luis Maria Cabeza de Baca by awarding them 500,000 acres within the New Mexico Territory. The Federal Land Department approved the 99,289-acre Baca Location No. 1, including the Valles Caldera, as part of that acreage.
Luebben counters that argument, as well as another assertion that “It is now well settled that the designation of land as a forest reserve or unit of the National Park Service is itself effective to extinguish a tribe’s aboriginal title” is inconsistent with a 1941 United States Supreme Court decision in United States v. Santa Fe Pacific Railroad.
“That case holds that aboriginal Indian title can only be extinguished in one of four different ways,” Luebben said. Those are:
A treaty of cessation.
Voluntary abandonment, which does not mean the tribe was simply pushed off its lands by settlers or the military. There must be a bilateral agreement between the tribe and authorized officials of the United States.
The lands can be taken by conquest (only acknowledged once in United States legal history).
An act of Congress expressly identifying the specific lands to be taken.
“If Congress wanted to extinguish Jemez’ aboriginal title in the Valles Caldera National Preserve Act, it would have had to say so,” Luebben said.
“Congress could pass a law today or tomorrow that purports to extinguish Jemez Pueblo’s aboriginal Indian title. I don’t think Congress will do that in the face of the United Nations Declaration on the Rights of Indigenous Peoples, which was recently endorsed by the United States. Article 26 says ‘Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.’ ”
Luebben also counters the assertion that the Pueblo should have acted when Congress first authorized the Baca settlement.
“As a historical reality, the government never contacted the Pueblo and said, ‘Is the Baca float OK with you?’ “Luebben said. “It’s virtually certain that no one in the Pueblo knew anything about the Baca grant. Just one day the Bacas showed up and turned loose their livestock.”
Luebben cites a history of the federal government violating its obligations as trustee of indigenous lands by allowing various forms of encroachment, backed up by court decisions that trivialize aboriginal Indian title.
“In complete disregard of the Supreme Court decision in Santa Fe Pacific in 1941, they proceeded to argue in the ICC that creation of a National Forest, creation of Taylor Grazing Districts and homesteading and mining locations, extinguished indigenous title,” Luebben said. He asks how people trespassing on Indian lands can possibly give the government title.
“It’s like my neighbor comes over and camps in my backyard and the next morning the BLM comes over and says you just lost your land to the federal government as the result of gradual encroachment by white settlers,” Luebben said.
“It’s preposterous, but everybody accepted it.”
The government also claims that the pueblo lost its property rights under the Treaty of Guadalupe Hidalgo, which ceded New Mexico to the United States. However, that treaty binds the United States government to honoring all existing property rights.
“The proposition that the pueblos lost any property rights under the Treaty of Guadalupe Hidalgo is directly contrary to the meaning and intent of the treaty,” Luebben said.
When the U.S. Government took over, Jémez held its ancestral lands pursuant to Indian title, which many courts have said “is as sacred as fee simple,” according to Luebben, as well as the Ojo Del Espiritu Santo grant, which the Spanish government awarded to Zia, Jemez and Santa Ana Pueblos in1766.
The Surveyor General of New Mexico, charged with investigating land claims, upheld the Ojo del Espiritu Santo Grant, but Congress failed to confirm it. Attempts to judicially rectify this failed. A Supreme Court decision denied the pueblos’ claim on the grounds that it was not a land grant but merely a grazing permit. The Court then held that the grazing permit was revoked by the Treaty of Guadalupe Hidalgo.
The government filing also declares that Jemez Pueblo cannot claim exclusive use and occupancy of the Valles Caldera since it did not assert its rights at the time of the Baca grant or in the Indian Claims Commission.
Luebben said that the pueblo’s aboriginal Indian title was established by exclusive use and occupancy over several centuries. Archeological evidence supports Jemez occupancy as early as the 12th century.
“The law of aboriginal Indian title is that once you establish it, you continue to hold it,” Luebben said. “If the military or settlers come in and push the tribe out, that does not extinguish aboriginal title because that doesn’t meet the standards of Santa Fe Pacific. And to say that they had to go to war or attack their neighbors to preserve their aboriginal title after the United States improvidently gave it to the heirs of Luis Maria Cabeza de Baca is a bit extreme.”
This lawsuit could break new ground in Indian land claims.
“This may be the first time that any Indian tribe has tried to prove its Indian title as against the United States under the Quiet Title Act. And that is a comment on this history going back to the early part of the last century, when attorneys representing tribes simply assumed that the government somehow stole all Indian land outside of BIA recognized reservation boundaries fair and square. Here, the government forgot to steal it.” Luebben said.
“It also reflects the fact that there was no waiver of sovereign immunity that would allow a suit against the United States to recover Indian title lands until 1976.”
The deadline for Jemez Pueblo to file a response to the government’s motion to dismiss is scheduled for the end of this month.