Jemez Pueblo continues push to reclaim Caldera

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By Arin McKenna

The Jemez Pueblo people are disappointed by federal district court Judge Robert C. Brack’s decision to dismiss the Pueblo’s quiet title lawsuit seeking the return of the Valles Caldera, but remain determined to continue the fight. An appeal of the Sept. 24 decision is currently underway and will be heard in the 10th Circuit Court of Appeals.


.”We shared this information directly with the overall supreme council and there was major consensus that we will continue to move forward and not give up on this initiative that we have started,” Governor Vincent Toya said. 

The supreme council is a large group comprised of religious leaders and tribal council that convenes when the Pueblo has major issues to resolve.

“This land is the heart of our religion and who we are as a community,” Toya continued. “The vast majority of that area has religious sites, with Wavema, Redondo Peak, at the heart of it. Everything about that particular peak has an activity that our survival is based on, for carrying on the life and livelihood of our people.”

In an earlier statement, Toya said, “Wavema, Redondo Peak, is just as precious to us as Blue Lake is to Taos Pueblo…The people of Taos Pueblo fought for 64 years to recover Blue Lake. We are just as committed.”

Judge Brack based his decision on two points of law.  

On the first point, Brack ruled that the 1946 Indian Claims Commission Act was enacted to “draw [ ] in all claims of ancient wrongs, respecting Indians, and to have them adjudicated once and for all,” and that the Pueblo should have filed a claim prior to the 1951 deadline. 

Brack’s reasoning is unclear on this point, since his opinion states that Jemez Pueblo may or may not have lost its claim to the land when the federal government awarded the Valles Caldera to the heirs of Luis Maria Cabeza de Baca as part of a land dispute settlement in 1860. 

Brack contends that whether or not the Pueblo lost its title due to that action, it should have filed a claim with the ICC. 

“Back then, our people thought, why do we want to put in a claim when it’s already ours?” Toya said. “It has traditionally been occupied by the Jemez people, evidenced by 62 major pueblos within that region.

“From time immemorial activities have occurred there with our forefathers that have been handed down to the younger generations. 

“We thought it would continue that way forever, but now we have these land claim concerns. We’re still trying to explain it to our elders.”

Brack’s opinion acknowledges that Jemez Pueblo people have strong evidence of their long occupation of the Valles Caldera and that “Plaintiff’s members continue to rely on the Valles Caldera for many critical resources.”

“The Pueblo’s position is that in 1860 the United States created the Baca float, and where the Baca float landed, if it was aboriginal title land, that aboriginal title continued to exist. And that is solid Supreme Court law. That was the decision in U.S. v. Santa Fe Pacific,” said attorney Tom Luebben, who is representing the Pueblo.

The Supreme Court’s 1941 decision in U.S. v. Santa Fe Pacific identified only three ways original Indian title can be lost: by treaty, by intentional tribal abandonment, or by express Act of Congress. None of those apply to the Jemez Pueblo title. 

“Supreme Court law is clear that the Baca float did not extinguish aboriginal Indian title,” Luebben said. “So if title was never extinguished, then when did the claim accrue? And the pueblo’s position is that it didn’t accrue until the United States took possession of this parcel. 

“The court assumes that because congress passed the Indian Claims Commission Act and created a jurisdiction for compensation for takings, that all land was taken, even though it wasn’t. It’s just this assumption that the ICC was the only remedy the Indians ever had to sue the United States for taking, even if the taking never happened.”

Luebben also points out that indigenous claims against the government were not ended by the Indian Claims Commission Act, citing examples such as 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. 

Brack also stated that he lacked jurisdiction, since “Defendant is immune from suit unless it consents to be sued.”

Luebben argues that the federal government’s purchase of the land allows 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.

Since Brack did not allow oral arguments, many of the Pueblo’s supporting arguments were not taken into consideration.

 Space limitations on court briefs restrict the amount of detail that can be included.

One point Luebben hopes to bring out in the appeal is the United State’s support for the United Nations Declaration on the Rights of Indigenous Peoples, which states that “indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

The Pueblo’s first brief on the appeal is due in early December, although they can request an extension if they feel more time is needed to prepare their case. 

The Pueblo is firmly committed to pursuing its case. 

“The religious leaders are counting on us as secular leaders to continue with this. If the results are negative, we’ll look at taking it to the Supreme Court,” Toya said. “We understand our strengths. It’s going to take time, money and resources. We don’t have much in terms of cash flow and revenue, but whatever we have we’ll use.”