No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. HYDRO RESOURCES, INC., Petitioner, v.

Transcription

1 Case: Document: Date Filed: 12/01/2009 Page: 1 No IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT HYDRO RESOURCES, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Respondent, and NAVAJO NATION, Intervenor-Respondent. REHEARING EN BANC OF PETITION FOR REVIEW OF A DECISION OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY BRIEF OF PUEBLOS OF SANTA CLARA, SANDIA, ISLETA AND ZIA AS AMICI CURIAE IN SUPPORT OF RESPONDENT, URGING AFFIRMANCE ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP Richard W. Hughes Post Office Box 8180 Santa Fe, New Mexico (505) Attorneys for Amicus Pueblo of Santa Clara SONOSKY, CHAMBERS, SACHSE, MIELKE & BROWNELL David C. Mielke 500 Marquette Ave. NW, #1310 Albuquerque, New Mexico (505) Attorneys for Amici Pueblos of Sandia, Isleta and Zia December 1, 2009

2 Case: Document: Date Filed: 12/01/2009 Page: 2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii IDENTITY AND INTEREST OF AMICI CURIAE...1 ARGUMENT...3 I. A PROPER UNDERSTANDING OF THE DEPENDENT INDIAN COMMUNITY LANGUAGE OF 18 U.S.C. 1151(b) REQUIRES AN UNDERSTANDING OF THE CIRCUMSTANCES UNDERLYING UNITED STATES V. SANDOVAL, AND THE DISTINCTIVE HISTORY OF THE RELATIONSHIP BETWEEN THE UNITED STATES AND THE PUEBLO INDIANS UP TO THE DATE OF THAT CASE....3 A. Introduction...3 B. Historical Background...4 C. The Sandoval Decision and the Dependent Indian Community Concept D. The Dependent Indian Community as the Community of Reference E. The Public Domain Navajos F. The Status of Fee Land Within Dependent Indian Communities II. NOTHING IN VENETIE SUPPORTS THE CLAIM THAT THE INDIAN COUNTRY ANALYSIS SHOULD DISREGARD THE INDIAN COMMUNITY, OR SHOULD BE TRACT-BY-TRACT CONCLUSION...27 CERTIFICATE OF DIGITAL SUBMISSION...28 CERTIFICATE OF COMPLIANCE...29 CERTIFICATE OF SERVICE...29

3 Case: Document: Date Filed: 12/01/2009 Page: 3 I. CASES A. Federal Cases TABLE OF AUTHORITIES Alaska v. Native Village of Venetie, 522 U.S. 520 (1998)... passim Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, 101 F.3d 1286 (9 th Cir. 1996), reversed sub nom. Alaska v. Native Village of Venetie, 522 U.S. 520 (1998)...25 Cramer v. United States, 261 U.S. 219 (1923)...18 Hilderbrand v. Taylor, 327 F.2d 205 (10 th Cir. 1964)...23 HRI v. EPA, 198 F.3d 1224 (10 th Cir. 2000)...15 Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985)...9 Navajo Tribe v. New Mexico, 809 F.2d 1455 (10 th Cir. 1987)...18 Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10 th Cir. 1995)...15, 16 Pittsburgh & Midway Coal Mining Co. v. Yazzie, 904 F.2d 1419 (10 th Cir. 1990)...18 Seymour v. Superintendent, 368 U.S. 351 (1961)...23 United States v. Candelaria, 271 U.S. 432 (1926)...13 United States v. Chavez, 290 U.S. 357 (1933)...13 United States v. John, 437 U.S. 634 (1978)...15 United States v. Joseph, 94 U.S. 614 (1877)...7, 8, 9, 10, 13 United States v. McGowan, 302 U.S. 535 (1938)...14, 15, 17, 19 ii

4 Case: Document: Date Filed: 12/01/2009 Page: 4 United States v. Roberts, 185 F.3d 1125 (10 th Cir. 1999)...15 United States v. Sandoval, 231 U.S. 28 (1913)... passim United States v. Sandoval, 198 Fed. 539 (D.N.M. 1912), reversed, 231 U.S United States v. Tsosie, 92 F.3d 1037 (10 th Cir. 1996)...17 B. State Cases State v. Ortiz, 105 N.M. 308, 731 P.2d 1352 (Ct.App. 1986)...21 State v. Romero, 2006-NMSC-039, 140 N.M. 299, 142 P.3d passim State v. Romero, 2004-NMCA-012, 135 N.M. 53, 84 P.3d 670, reversed, NMSC-039, 140 N.M. 299, 142 P.3d , 23 Territory v. Persons, etc., in Delinquent Tax List, 12 N.M. 139 (1904)...9 United States v. Lucero, 1 N.M. 422 (1869)...7 United States v. Mares, 14 N.M. 1 (1907)...11 II. STATUTES 18 U.S.C , 15, 23, U.S.C. 1151(a)...21, U.S.C. 1151(b)... passim 18 U.S.C U.S.C. 177 (Nonintercourse Act)...6, 7, 8, U.S.C Act of Feb. 27, 1851, ch. 13, 9 Stat iii

5 Case: Document: Date Filed: 12/01/2009 Page: 5 Act of July 22, 1854, ch. 103, 10 Stat Act of Dec. 22, 1858, ch. 5, 11 Stat Act of Jan. 30, 1897, ch.109, 29 Stat , 11 Act of May 29, 1928, ch. 853, 45 Stat , 19 New Mexico Enabling Act, Act of June 30, 1910, ch. 310, 36 Stat Pueblo Lands Act, ch. 331, 43 Stat. 636 (1924)...1, 20, 21 III. OTHER AUTHORITIES Rule 29(a), Fed. R. App. P....2 Sen. Exec. Doc. No. 5, 24 th Cong., 2d Sess. (1856)...6 Treaty of Guadalupe Hidalgo, 9 Stat. 922 (July 4, 1848)...5 COHEN S HANDBOOK OF FEDERAL INDIAN LAW, R. Strickland, ed., 39 (1982) HANDBOOK OF NORTH AMERICAN INDIANS, SOUTHWEST, A. Ortiz, ed. (Smithsonian Inst., Washington, 1979)...4, 5, 8 L.C. Kelly, THE NAVAJO INDIANS AND FEDERAL INDIAN POLICY (1968)...17, 18 R. Underhill, THE NAVAJOS (1967)...17 iv

6 Case: Document: Date Filed: 12/01/2009 Page: 6 IDENTITY AND INTEREST OF AMICI CURIAE Amici curiae Pueblos of Santa Clara, Sandia, Isleta and Zia are federally recognized Pueblo Indian tribes situated in the State of New Mexico. Each Pueblo occupies lands that were granted to it by Spanish territorial authorities in the 17 th and 18 th centuries, which grants were confirmed by Congress following the American acquisition of New Mexico. In the case of United States v. Sandoval, 231 U.S. 28 (1913), the Supreme Court held that because Congress had asserted federal authority over those lands and the Pueblos had been consistently treated by Congress like other dependent Indian communities subject to the federal guardianship, Pueblo grant lands should be considered to be Indian country within the meaning of federal Indian law. In 1948, when Congress enacted 18 U.S.C. 1151, defining the term Indian country statutorily, it included the dependent Indian community language from Sandoval in subsection (b), as one of the categories of lands included in the definition. See Alaska v. Native Village of Venetie, 522 U.S. 520, 530 (1998). Pursuant to the Pueblo Lands Act, ch. 331, 43 Stat. 636 (1924) ( PLA ), thousands of non-indians who had been occupying Pueblo lands without valid title, but who satisfied certain criteria set forth in the Act, were issued patents to the tracts of Pueblo grant lands that they had occupied. Whether those lands

7 Case: Document: Date Filed: 12/01/2009 Page: 7 constituted Indian country was unsettled, until the recent decision of the New Mexico Supreme Court in State v. Romero, 2006-NMSC-039, 140 N.M. 299, 142 P.3d 887. Romero held that all lands within the exterior grant boundaries of the Pueblos (which the court acknowledged had been conclusively determined to be dependent Indian communities ) constitute Indian country, within the meaning of 18 U.S.C. 1151(b), regardless of the issuance of any patent. (The present amici, and other Pueblos, participated in the Romero case as amici curiae.) The instant case presents the same issue as was dealt with in Romero, but in a different context, and to a significant extent the case may turn on the meaning of the dependent Indian community phraseology from Sandoval, and its treatment by the Supreme Court in Venetie. Amici believe that an understanding of the distinctive and unusual history of their relationship with the federal government, which led directly to the Sandoval decision, would assist the Court in understanding how that phrase ought to be applied in the context of this case, and why the panel decision herein should be affirmed. Amici have sought leave of the Court to file this brief, pursuant to Rule 29(a), Fed. R. App. P. 2

8 Case: Document: Date Filed: 12/01/2009 Page: 8 ARGUMENT I. A PROPER UNDERSTANDING OF THE DEPENDENT INDIAN COMMUNITY LANGUAGE OF 18 U.S.C. 1151(b) REQUIRES AN UNDERSTANDING OF THE CIRCUMSTANCES UNDERLYING UNITED STATES v. SANDOVAL, AND THE DISTINCTIVE HISTORY OF THE RELATIONSHIP BETWEEN THE UNITED STATES AND THE PUEBLO INDIANS UP TO THE DATE OF THAT CASE. A. Introduction. The Supreme Court s decision in United States v. Sandoval, 231 U.S. 28 (1913), the source of the dependent Indian communities language of 18 U.S.C. 1151(b), see Alaska v. Native Village of Venetie, 522 U.S. 520, 530 (1998), marked a major turning point in the convoluted history of the relationship between the Pueblo Indian tribes of New Mexico and the United States government. Sandoval restored the status of the Pueblos as Indians in the eyes of the federal courts, and threw into question the titles of thousands of non-indians who had settled on Pueblo lands. In response, Congress enacted the PLA, under which thousands of non-indians received patents from the United States to tracts of land within the confirmed Pueblo land grants. That those non-indian-owned tracts, situated within dependent Indian communities, continue to be Indian country, was clearly established in State v. Romero, 2006-NMSC-039, 140 N.M. 299, 142 P.3d 887. The reasoning of Sandoval demonstrates that the Church Rock community 3

9 Case: Document: Date Filed: 12/01/2009 Page: 9 clearly qualifies as a dependent Indian community, and many of the factors that led the New Mexico Supreme Court to conclude that private tracts within such a community are Indian country should likewise support affirmance of the panel decision in this case. B. Historical Background. The Pueblo Indians have occupied their distinctive villages in the Rio Grande valley and elsewhere in what is now the State of New Mexico since long before the arrival of the first Europeans. They are believed to be directly descended from the so-called Anasazi, the builders of such wondrous structures as are found in Mesa Verde and Chaco Canyon. See, e.g., 9 HANDBOOK OF NORTH AMERICAN INDIANS, SOUTHWEST, A. Ortiz, ed. (Smithsonian Inst., Washington, 1979) (hereinafter, HANDBOOK ) at 1-3. Unlike the hunter-gatherer tribes of the Great Basin and the Great Plains, the Pueblo Indians have always been agriculturalists, residing in permanent villages, originally consisting of multi-story adobe- or stone-walled house blocks and including numerous ceremonial chambers, called kivas, each village having a population of hundreds or even thousands of persons. The first major Spanish expedition to this region, the Coronado expedition of , found dozens of these villages in the valley of the Rio Grande and its tributaries. The Pueblos highly developed irrigation systems, crafts and culture 4

10 Case: Document: Date Filed: 12/01/2009 Page: 10 were admiringly described by early Spanish chroniclers, even before the first permanent Spanish settlements were established in the territory in Id. at The arrival of the Spanish brought disease and social and political turmoil to the Pueblos, but during the near quarter-millenium of Spanish and (after 1821) Mexican territorial rule that they endured (interrupted, to be sure, by the 1680 Pueblo Revolt, in which hundreds of Spaniards were slaughtered and the rest fled the territory to El Paso, not to return for 12 years; see id. at , ), the Pueblos largely managed to maintain their culture and traditions, and, to a substantial degree, their core land holdings. Under the egalitarian Mexican regime, however, the protected status the Pueblos had enjoyed under Spanish law disappeared, and that era saw the beginnings of significant non-indian settlement on Pueblo lands that accelerated after New Mexico came under American rule. Id. at , When the United States acquired the American Southwest from Mexico by the Treaty of Guadalupe Hidalgo, 9 Stat. 922 (July 4, 1848), Congress acted quickly to assert the full measure of federal protection and supervision over the Pueblo Indians and their lands. By the Act of Feb. 27, 1851, ch. 13, 5, 7, 9 Stat. 574, 587, Congress extended the provisions of the Indian Nonintercourse 5

11 Case: Document: Date Filed: 12/01/2009 Page: 11 Act 1 to the newly organized Territory of New Mexico, and it authorized the appointment of four Indian agents for the territory. In 1854, as a first step in ascertaining the private titles that had been established under Spanish and Mexican rule, Congress created the office of Surveyor-General for New Mexico, and it directed the Surveyor-General, as one of his first tasks, to report on the location, population, and title status of each of the Pueblos and their land grants. Act of July 22, 1854, ch. 103, 8, 10 Stat. 308, 309. The first Surveyor-General, William Pelham, reported back to the Secretary of the Interior on September 30, 1856, recommending the confirmation of Spanish land grants to the Pueblos, Sen. Exec. Doc. No. 5, 24 th Cong., 2d Sess. (1856), at 411, and he added, [t]he Pueblo Indians are constantly encroached upon by Mexican citizens, and in many instances the Indians are despoiled of their best lands; I therefore respectfully recommend that these claims be confirmed by Congress as speedily as possible, and that an appropriation be made to survey their lands, in order that their boundaries may be permanently fixed. Id. at Congress accepted that recommendation, confirming all of the recommended Pueblo grants in Act of Dec. 22, 1858, ch. 5, 11 Stat Thereafter, Congress regularly included the Pueblo Indians of New Mexico among 1 The so-called Nonintercourse Act, enacted in 1834 and now codified at 25 U.S.C. 177, prohibits any loss or transfer of lands or any interest therein by any Indian tribe except with the approval of Congress. 6

12 Case: Document: Date Filed: 12/01/2009 Page: 12 the Indian tribes and bands being served by the federal Indian Service. It maintained agents to oversee their needs, appropriated funds for schools, agricultural implements and seed, irrigation works and other purposes, and, at least as early as 1898, employed a Special Attorney for the Pueblos to represent them in litigation in the courts of the territory. See Sandoval, 231 U.S. at and n.1. In 1877, however, the federal judicial branch took a very different course, one that was directly at odds with established federal policy and action. In an action brought by the United States under the authority of the Nonintercourse Act, to eject non-indians residing without valid title on Taos Pueblo lands, the Territorial Court ruled that Taos Pueblo did not constitute an Indian tribe within the meaning of the Nonintercourse Act, or of the 1851 Act by which that law had been extended over the Indian tribes in the Territor[y] of New Mexico. 2 The United States Supreme Court affirmed. United States v. Joseph, 94 U.S. 614 (1877). Justice Miller quoted at length from the Territorial Court s opinion, in which it praised the Pueblo people as a peaceable, industrious, intelligent, honest and virtuous people, unlike the more familiar nomadic and uncivilized Indians 2 See also United States v. Lucero, 1 N.M. 422 (1869), an extraordinary piece of rhetoric by the Supreme Court of the Territory, in which it held that the Nonintercourse Act was inapplicable to the lands of the Pueblo of Cochiti. 7

13 Case: Document: Date Filed: 12/01/2009 Page: 13 for whom, Justice Miller opined, the [Nonintercourse Act] was made. Id. at The Pueblos, the Court held, were thus not Indian tribes whose lands were subject to federal protection. The Court also viewed as material the fact that Pueblo lands were owned by the Pueblos themselves, pursuant to grants by the Spanish territorial authority a tenure wholly different from that of the Indian tribes to whom the act of Congress applies. Id. at 618. It is not too cynical to imagine that the adulatory praise showered on the Pueblos by the Territorial Court, that seemed so persuasive for the Supreme Court in Joseph, had less to do with the way in which the Pueblo Indians were actually regarded in the Territory 3 and rather more to do with the concern that Pueblo land might be found to be protected by federal law restrictions on alienation. Were that to be so, that land, which included (naturally, since the Pueblos were there first) some of the best irrigable farmland in the Territory, would be essentially off-limits to non-indian settlement, a very undesirable result from the standpoint of the rapidly arriving settlers and the development-hungry power structure of the Territory. See, e.g., HANDBOOK at 214 ( The [Joseph] decision clearly threw the Pueblos on their own meager defenses and opened the way for spoliation of their proprietary holdings. ) 3 It is telling that as early as 1854 the territorial legislature had passed a law excluding Pueblo Indians from voting. Sandoval, 231 U.S. at 40. 8

14 Case: Document: Date Filed: 12/01/2009 Page: 14 Whatever the motivation, accelerated encroachment was the result. During the decades after Joseph, thousands of non-indians, some with deeds obtained in various ways from the tribes, some without, established homes and farms on the Pueblo grants. See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, (1985). But as the Court explained in Sandoval, notwithstanding Joseph, Congress and the executive branch continued to treat the Pueblo Indians as Indians under federal authority and supervision, like all other Indian tribes. 231 U.S. at Thus, when the Territorial Supreme Court ruled in 1904 that Pueblo land was subject to taxation, Territory v. Persons, etc., in Delinquent Tax List, 12 N.M. 139 (1904), Congress swiftly annulled any such levies, and forbade taxation of Pueblo lands. Act of March 3, 1905, ch. 1479, 33 Stat. 1048, 1069; and see United States v. Candelaria, 271 U.S. 432, (1926). And when Congress enacted the New Mexico Enabling Act, Act of June 30, 1910, ch. 310, 36 Stat. 557, , preparatory to New Mexico s admission to the union as the 47 th state, it required that the new state s constitution contain several provisions for the protection of the Pueblos and their lands, including a specific declaration that the lands now owned or occupied by the Pueblo Indians were to be considered Indian country. Id. at 2, cl. 8, 36 Stat

15 Case: Document: Date Filed: 12/01/2009 Page: 15 C. The Sandoval Decision and the Dependent Indian Community Concept. Congress determination to continue to apply federal Indian country laws to the Pueblos and their lands, and the determination of the United States Attorney for New Mexico to enforce that policy, notwithstanding Joseph, ultimately led the Supreme Court to reconsider the Pueblos status. Sandoval was a prosecution of a non-indian under the Act of Jan. 30, 1897, ch.109, 29 Stat. 506, which prohibited the provision of intoxicants to any Indian a ward of the government or any Indian... over whom the government, through its departments, exercises guardianship. As noted above, in the New Mexico Enabling Act Congress had included language expressly forbidding the introduction of liquor into Indian country, and providing that the term Indian country shall also include all lands now owned or occupied by the Pueblo Indians of New Mexico. Sandoval, 231 U.S. at 37 n. 1. The federal district court, however, had ruled that Congress had no authority to infringe on the new state s police powers in such a fashion, inasmuch as the Pueblo Indians were not Indians subject to federal guardianship, and it dismissed the indictment. Id. at 36; and see United States v. Sandoval, 198 Fed. 539 (D.N.M. 1912), reversed, 231 U.S. 28. The principal question before the Court, thus, was whether Congress had the constitutional authority to impose such a limitation on state power by declaring the Pueblos to be subject to federal 10

16 Case: Document: Date Filed: 12/01/2009 Page: 16 guardianship and their lands to be Indian country, pursuant to its plenary power in Indian affairs. 4 The Court pointed out in Sandoval that although the Pueblos were considered to be more peaceable, sedentary and industrious than other Indians, Congress and the executive branch had consistently treated them as requiring special consideration and protection, like other Indian communities. 231 U.S. at 39. Though Congress could not, it noted, arbitrarily assume control over a group of people by calling it an Indian tribe, in respect of distinctly Indian communities, such as the Pueblos, it was up to Congress, not the courts, to determine whether, to what extent and for what time they would be regarded as requiring the guardianship and protection of the United States. Id. at 46. In a passage that would be drawn on directly by the drafters of 18 U.S.C. 1151(b), the Court explained that long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state. 4 An earlier, pre-enabling Act decision of the Territorial Supreme Court had already held that the Pueblo Indians were not within the terms of the 1897 Act. United States v. Mares, 14 N.M. 1 (1907). 11

17 Case: Document: Date Filed: 12/01/2009 Page: 17 Id. 5 Congress, the Court conceded, had plainly treated the Pueblo Indians as dependent communities entitled to [the government s] aid and protection, like other Indian tribes, and it held that that determination must be regarded as both authorized and controlling. Id. at In short, Congress constitutional authority over the Indian tribes was not subject to anthropological judgments as to the degree of civilization of any distinctly Indian community, as the territorial courts had insisted. Rather, all such communities were subject to the plenary power of Congress, and it was for Congress alone to determine the manner, extent and duration of the exercise of the government s guardianship. That being so, the Court upheld Congress authority to control the entry of liquor into Pueblo grant lands, that is, Pueblo Indian country. Id. at 48. The Court also considered the fact that Pueblo grants were held by the Pueblos in fee, rather than by the United States in trust, but it did not regard that as of any consequence, noting that the same was true of the lands held by the Five Civilized Tribes of Oklahoma. Id. The Court recognized that Congress could extend its authority over such fee lands in the exercise of the Government s 5 Compare 18 U.S.C. 1151(b): all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State. 12

18 Case: Document: Date Filed: 12/01/2009 Page: 18 guardianship over those tribes and their affairs. Id. 6 Not until 13 years later, in Candelaria, however, did the Court fully resolve the uncertainties created by Joseph. Candelaria held that the Pueblos are Indian tribes within the meaning of the Nonintercourse Act and the Act of 1851, whose lands were thus subject to federal guardianship and protection, specifically the protections imposed by the Nonintercourse Act. 271 U.S. at And see United States v. Chavez, 290 U.S. 357 (1933) (Pueblo of Isleta is dependent Indian community, whose lands thus constitute Indian country for purposes of statute punishing crimes committed within Indian country). The Court had thus established in Sandoval that all communities of dependent Indians are within the reach of Congress constitutional power over Indian affairs, and that it is Congress prerogative to determine whether and to what extent the fostering care and protection of the government would be extended over any such community; but that where Congress has made that determination, the community becomes fully subject to federal laws enacted for 6 The Court noted that in Joseph, there are some observations not in accord with what is said here of these Indians, 231 U.S. at 48, which it attributed to views of the territorial court which are at variance with other recognized sources of information. Id. at 49. That case, the Court said, cannot be regarded as holding that these Indians or their lands are beyond the range of Congressional power. Id. As noted in the text, Joseph s holding, that Pueblo lands were not protected by the Nonintercourse Act, was expressly reversed in Candelaria. 271 U.S. at

19 Case: Document: Date Filed: 12/01/2009 Page: 19 the protection of Indians, and lands set aside for it by the United States become Indian country. This principle was made even clearer in United States v. McGowan, 302 U.S. 535 (1938), which began as an action under what was then 25 U.S.C for forfeiture of a vehicle that had been used to transport alcoholic beverages into the Reno Indian Colony. The Colony consisted of acres of land outside of the city of Reno, Nevada, acquired by the United States pursuant to two separate acts of Congress, on which several hundred needy Indians who had been scattered across the state had been settled. 302 U.S. at 537. The statute provided for forfeiture of any vehicle used to introduce intoxicants into the Indian country, but the district court and the court of appeals both agreed that the Colony was not Indian country. The Supreme Court reversed. The fundamental consideration of both Congress and the Department of the Interior in establishing this colony, the Court held, has been the protection of a dependent people. That the Colony was not formally designated a reservation was, the Court said, immaterial. Id. at The Colony was validly set apart for the 7 Since repealed; matter now covered by 18 U.S.C Nowhere in the opinion does the Court state that the land was actually held in trust for the residents of the Colony, but one of the Acts that had appropriated funds for purchase of the lands stated that title to the land is to be held in the United States for the benefit of said Indians. 302 U.S. at 537 n.4. Under modern 14

20 Case: Document: Date Filed: 12/01/2009 Page: 20 use of the Indians. It is under the superintendence of the government. Id. at 539. The Court thus saw no basis to draw any distinction between this Indian colony and Indian country. Id. D. The Dependent Indian Community as the Community of Reference. It is significant that the drafters of 18 U.S.C. 1151, in defining Indian country, a term intended to delineate a geographical area, in addition to specifying Indian reservations and allotments (which can be precisely demarcated on a map), included in subsection (b) the dependent Indian community language of Sandoval and McGowan. The language clearly implies that the lands where such a community is located are to be considered Indian country (and it suggests that, as in subsection (a), title to each parcel within the community is not material); but it unmistakably requires that one must first determine that there is a community of dependent Indians for whom that land has been set aside, under the superintendence of the government. The need to identify that community gave rise to the community of reference doctrine, first adopted by this Court in Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, (10 th authority, such land would be considered a reservation, regardless of the lack of a formal designation as such. See, e.g., United States v. John, 437 U.S. 634, (1978) (land declared by Congress to be held in trust for Mississippi Choctaws ought to be considered a reservation); and see HRI v. EPA, 198 F.3d 1224, (10 th Cir. 2000); United States v. Roberts, 185 F.3d 1125, 1131 (10 th Cir. 1999). 15

21 Case: Document: Date Filed: 12/01/2009 Page: 21 Cir. 1995). The community of reference phraseology, however, appears to have led some parties astray from the concept from which it is derived that is, a community of dependent Indians for whom land has been set aside. This disconnect, in turn, has lead to some bizarre claims, such as that made by Pittsburgh & Midway ( P & M ) in Watchman, that the South McKinley Mine (a surface coal mine operated by P & M) should be the relevant community of reference. Watchman, 52 F.3d at As this Court noted, the mine was not even a community in any conventional sense of the word, much less one for dependent Indians. Similarly far off the track is the suggestion set forth in the Supplemental Brief of Petitioner HRI in this case ( HRI Supp. Br. ), that the City of Gallup should be considered as the community of reference in the instant case. HRI Supp. Br. at 13. The HRI tract is of course nowhere near Gallup, nor does it bear any relationship to that city. Gallup is not, moreover, and has never been, an Indian community, dependent or otherwise. The EPA determined, and the panel decision affirmed, that the Church Rock Chapter should be considered the community of reference in this case. Amici submit that that conclusion is fully supportable, and is well supported by the reasoning of EPA and the panel, but amici would point to factors not extensively discussed in those decisions but that, in the view of amici, further bolster that conclusion, and that demonstrate that the Chapter is part of a larger group, what 16

22 Case: Document: Date Filed: 12/01/2009 Page: 22 used to be referred to in BIA documents as the Public Domain Navajos, and as such clearly qualifies as a dependent Indian community under Sandoval and McGowan. E. The Public Domain Navajos. Following the execution of the 1868 Navajo Treaty at the Bosque Redondo, near Ft. Sumner, New Mexico, the Navajo joyously returned to their former homelands. Unfortunately for many of them, the lands that had been set aside in the treaty as their new reservation did not include large areas of the former Navajo homeland in New Mexico, but many of the returnees settled in those rugged areas regardless, oblivious to the lines on the white man s map. Being essentially squatters on the public domain, they were largely ignored by the Indian Service. See, e.g., United States v. Tsosie, 92 F.3d 1037, (10 th Cir. 1996); L.C. Kelly, THE NAVAJO INDIANS AND FEDERAL INDIAN POLICY ( KELLY ), (1968); R. Underhill, THE NAVAJOS ( UNDERHILL ), (1967). By the early 1900s, however, the poverty and desperation of this increasingly substantial population, and the pressure being placed on them by non-indian ranchers drawn to the area by the discovery of artesian water, had become a matter of grave concern to the Service. It was this situation that prompted President Roosevelt to add approximately 1.8 million acres to the Navajo Reservation in New Mexico by Executive Orders 709 and 744, in , so that allotments could be issued to 17

23 Case: Document: Date Filed: 12/01/2009 Page: 23 the squatter Navajo population. KELLY at 23; Pittsburgh & Midway Coal Mining Co. v. Yazzie, 904 F.2d 1419, (10 th Cir. 1990). But non-indian opposition to the addition quickly grew, and three years later President Taft issued an order returning the unallotted lands to the public domain. Navajo Tribe v. New Mexico, 809 F.2d 1455, (10 th Cir. 1987); and see Yazzie, 904 F.2d at The Indian Service did not give up. The record in this case contains abundant documentation of the continuing efforts made by various Indian agents, working closely with leaders of the Navajo Tribe, to get Congress to authorize the purchase of the lands that had been patented to the A.T. & S.F. Railroad in this region, much of which was already leased by or for the Navajos, to benefit what the Indian Service officials were referring to as the Public Domain Navajos. That effort finally succeeded with the enactment of the Act of May 29, 1928, ch. 853, 45 Stat.883, , by which about 75,000 acres of railroad lands were acquired by the United States, and taken into trust for the Navajo Tribe, specifically to provide for grazing lands and homesteads for the Public Domain 9 HRI argues that the revocation of the E.O. 709/744 reservation addition eliminated any Indian country status as to the unallotted land, but there is no basis for this claim. Land that is no longer within a reservation may still be within a dependent Indian community, and Indian country can be reestablished even after it has been extinguished. Cf. Cramer v. United States, 261 U.S. 219 (1923) (notwithstanding congressional extinguishment of all Indian country in California as of 1854, long and exclusive occupancy of land by Indians thereafter can give rise anew to individual aboriginal title). 18

24 Case: Document: Date Filed: 12/01/2009 Page: 24 Navajos. See R 13(b) App ; More than half of the Church Rock Chapter s land is tribal trust land acquired under the 1928 Act, and HRI s 160-acre tract is literally surrounded by such land. See Att. 1 to Navajo Nation Supp. Brief. Additionally, the vast majority of the public domain land within the Church Rock area that had not been conveyed to the railroad was allotted in trust to individual Navajos. Thus, 82% of the lands within the boundaries of the Church Rock Chapter are held in trust by the United States for the Navajo Tribe or individual Navajo Indians. The history of the Public Domain Navajos of the Church Rock community, thus, bears a strong similarity to that of the landless Washoe Indians that the government settled on the Reno Indian Colony, at issue in McGowan, with the marked and important exception that in the case of the Public Domain Navajos, rather than settle them on land it had acquired for them, far from their original homes, the government simply acquired the land on which they were already, and for a long time had been, residing or grazing their flocks, and set it aside permanently for their use. Unquestionably, thus, the Church Rock Navajos were, and remain, a community of dependent Indians under federal guardianship, 10 and it 10 HRI endeavors to show that the Church Rock Chapter is a creation of the Navajo government, not of the United States, HRI Supp.Br. at 17, but whether or not correct (and amici note that the Solicitor of the Department of the Interior has stated that the Chapter was organized by the United States government, R44 App. 19

25 Case: Document: Date Filed: 12/01/2009 Page: 25 is indisputable that Congress took steps expressly to set lands aside for their benefit, lands that completely embrace the HRI tract. F. The Status of Fee Land Within Dependent Indian Communities. As noted supra at 14 n. 8, modern case law from the Supreme Court and this Court establish that land taken into trust for an Indian tribe qualifies as reservation land, regardless of any formal reservation designation. But apart from that, as explained above, and as the panel decision correctly found, the Chapter is unquestionably a community of dependent Indians within the scope of 1151(b). The only question that remains under that subsection is whether patented lands within dependent Indian communities should be viewed as Indian country. This was the question that the New Mexico Supreme Court addressed in Romero, and amici submit that much of that analysis fully applies here. The Sandoval decision suddenly threw into doubt the titles of thousands of non-indians who were living within Pueblo grants, many of whom could trace their tenure to the Mexican period but none of whom had titles approved by the United States. Eventually, Congress enacted the PLA, under which such persons, 7), this is a red herring. The Pueblo Indians were not organized by the United States government, and never signed any treaty, yet the Supreme Court, as has been explained in detail, supra, had no difficulty in concluding that they are communities of dependent Indians, subject to the federal guardianship. The Church Rock Navajos are, in that respect, no different from the Pueblos. 20

26 Case: Document: Date Filed: 12/01/2009 Page: 26 if they could demonstrate that they met criteria set forth in the Act, were issued patents from the United States for the lands they occupied. The Pueblos received compensation for the land they lost. In 1986, the state court of appeals held that the private parcels patented under the PLA remained Indian country, State v. Ortiz, 105 N.M. 308, 731 P.2d 1352 (Ct.App. 1986), but in 2004 that court changed its mind, thinking that Venetie required a different view of the issue. State v. Romero, 2004-NMCA-012, 135 N.M. 53, 84 P.3d 670, reversed, 2006-NMSC-039, 140 N.M. 299, 142 P.3d 887. The New Mexico Supreme Court disagreed, and held that those patented parcels are part of Pueblo Indian country. The court acknowledged that the Pueblos, whose land grants had never been under federal ownership, and which the Pueblos owned in fee simple, had been found to be dependent Indian communities in Sandoval, and that their lands were thus Indian country under 1151(b), but it noted that the status of privately owned lands within such communities was not specifically addressed in subsection (b) as it was for reservations in 1151(a). The state argued, as HRI does here, that Venetie requires that the court consider the status of the specific tract of land where Romero s crime had occurred, not that of the community as a whole, but the court rejected that view, saying, [i]nstead, we look to the pueblo as a whole and determine if the pueblo is under federal government superintendence. Considering the pueblo as a whole is also consistent with congressional intent in 21

27 Case: Document: Date Filed: 12/01/2009 Page: 27 enacting 1151 because it discourages checkerboarding NMSC-039 at 16, 140 N.M. at , 142 P.3d at The court approvingly cited COHEN S HANDBOOK OF FEDERAL INDIAN LAW, R. Strickland, ed., 39 (1982), which states, patented parcels of land and rights-of-way within dependent Indian communities should also be within Indian country. The court explained, the terms of section 1151(b) refer to residential Indian communities under federal protection, not to types of land ownership NMSC-039 at 18, 140 N.M. at 305, 142 P.3d at 893. HRI argues that Romero s reasoning is not applicable here, because the Romero court considered Pueblo grant lands to be sufficiently similar to a reservation in 1151(a) to merit identical treatment. HRI Supp.Br. at 18 and n.8 (quoting Romero, 2006-NMSC-039 at 19, 140 N.M. at 306, 142 P.3d at 894). HRI argues that neither the panel nor any party in this case had analogized the Chapter to a reservation, meaning, apparently, that Pueblos must be a different kind of dependent Indian community than Church Rock. But HRI fails to explain that the passage of the Romero opinion it quotes was simply a response to the court of appeals facile contention that 1151(a) s notwithstanding the issuance 11 In the next section of this brief, amici will explain why Venetie, in any event, does not support any argument that the Indian country tests must be applied to specific tracts of land, rather than to the entire community. 22

28 Case: Document: Date Filed: 12/01/2009 Page: 28 of any patent language should not be read into 1151(b), solely because a Pueblo land grant is not a reservation NMCA-012, 25, 135 N.M. at 59, 84 P.3d at 676. The supreme court noted that Congress has repeatedly and virtually without exception treated Pueblo land the same as reservation land, and that there was therefore no logical reason for assuming that fee lands within dependent Indian communities should be treated any differently for purposes of 1151 than fee lands within reservations NMSC-039 at 19, 140 N.M. at 306, 142 P.3d at 894. That reasoning should apply here at least as forcefully, since the land that was set aside for the Church Rock community is actually held in trust by the United States, and looks much more like a conventional reservation than do the lands of some Pueblos. Such treatment moreover accords fully with one of the main purposes of 1151, to avoid checkerboarded jurisdiction. Seymour v. Superintendent, 368 U.S. 351, 358 (1961); Hilderbrand v. Taylor, 327 F.2d 205, 207 (10 th Cir. 1964). In short, the Church Rock Chapter is plainly a dependent Indian community, in the same sense and for much the same reasons that the Pueblos and the Reno Indian Colony were found to be. The Church Rock community and its lands are under federal superintendence, and those lands were set aside by the government for its use. HRI s patented parcel is completely within the lands of the community. Consistent with the purposes of 18 U.S.C. 1151, that parcel should 23

29 Case: Document: Date Filed: 12/01/2009 Page: 29 be considered to be part of Church Rock Indian country. II. NOTHING IN VENETIE SUPPORTS THE CLAIM THAT THE INDIAN COUNTRY ANALYSIS SHOULD DISREGARD THE INDIAN COMMUNITY, OR SHOULD BE TRACT-BY-TRACT. At bottom, HRI s argument, like that of the state in Romero, is that the Supreme Court decision in Venetie completely eliminates any consideration of the community in making an Indian country determination under 1151(b), and that the focus must be solely on the status of the particular tract of land at issue. Even apart from Venetie s actual language and holding to the contrary, it must be said that that argument writes the dependent Indian community language completely out of the statute, and it guarantees a pattern of checkerboarded jurisdiction, which the statute was designed to avoid. More strikingly, it pre-ordains the result: plainly, no tract of land that isn not within a reservation and is patented to non- Indians would ever be found to have been set aside for dependent Indians, under federal superintendence, if the Indian community within which it is situated cannot be considered. That feature of the argument, alone, should raise eyebrows. In fact, Venetie s holding is fully compatible with the panel decision. It must be remembered that the main question in Venetie was not whether some small tract of land constituted Indian country, but rather, whether the Native Village of Venetie Tribal Government, or its components, the traditional Neets aii 24

30 Case: Document: Date Filed: 12/01/2009 Page: 30 Gwich in villages of Venetie and Arctic Village, could be said, after enactment of the Alaska Native Claims Settlement Act, 43 U.S.C et seq. ( ANCSA ), to be dependent Indian communities. See Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, 101 F.3d 1286, 1290 (9 th Cir. 1996) (noting that district court held that while Venetie was a dependent Indian community before 1971, Congress extinguished that status when it passed ANCSA ), reversed sub nom. Alaska v. Native Village of Venetie, 522 U.S. 520 (1998). The Ninth Circuit, in an elaborate analysis, concluded that because Congress had not expressly indicated an intention to extinguish all Indian country and all federal superintendence over Alaskan natives in ANCSA, Venetie is a dependent Indian community and... accordingly, its territory qualifies as Indian country. 101 F. 3d at While it tends to focus on the status of Venetie s land, the Supreme Court opinion clearly recognizes that that status depends on the status of the community. Indeed, the Court summarizes its view of dependent Indian community status as follows: The federal set-aside requirement ensures that the land in question is occupied by an Indian community ; the federal superintendence requirement guarantees that the Indian community is sufficiently dependent on the Federal Government that the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question. Id. at 531 (emphasis added; footnotes omitted). In a footnote, the Court responded 25

31 Case: Document: Date Filed: 12/01/2009 Page: 31 to an argument put forth by Venetie that for the community to be politically dependent on the government meets the dependency requirement. The Court emphasized that political dependence was not enough, that it was the land, and not merely the Indian tribe inhabiting it, that must be under the superintendence of the Federal Government. Id. at 531 n.5 (emphasis added). Thus there must be a community of dependent Indians inhabiting the land, and the land must be under federal authority. Importantly, moreover, in Venetie the Court had no need to determine what the appropriate community was, or thus to consider the community of reference doctrine: it was undisputed that if there were a dependent Indian community, it had to be Venetie (and Arctic Village). HRI and its amici urge that the Court s repeated references in Venetie to the importance of the land in question having been set aside by the government and being under federal superintendence compel reversal of the panel decision here, because it is plain that HRI s 160-acre parcel meets neither test. This argument is completely baseless. The Court s references to the land were not to the parcel where the school, whose construction Venetie sought to tax, was being constructed, or to any other specific tract, but to the entire 1.8 million acres owned by Native Village of Venetie, as Justice Thomas made clear in the opening sentence of the opinion. Id. at 523. There was simply no issue in the case as to the Indian country status of a particular tract of land, as here; the question was 26

32 Case: Document: Date Filed: 12/01/2009 Page: 32 whether the form of land tenure created by Congress in ANCSA, and applicable to all land held by Alaskan native villages, met the federal set-aside or superintendence tests. Nor did the Court in any way suggest that it would apply those tests to particular tracts, rather than to the entire community; indeed, it characterized as more relevant factors in the dependent Indian community analysis the degree of federal ownership of and control over the area, and the extent to which the area was set aside for the dependent community. 522 U.S. at 531 n.7 (quoting opinion below, 101 F.3d at 1301; emphasis added). That language necessarily means that the character of the community as a whole is determinative, not the status of particular lots, and that some of the land within the community may not be under federal superintendence. In short, there is nothing in Venetie that compels any change in the decision of the panel, and as is explained above, that decision is fully consistent with the principles underlying 18 U.S.C It should be affirmed. CONCLUSION For all of the foregoing reasons, amici urge the Court to affirm the decision of the panel, and find that HRI s property is Indian country by virtue of being situated within a dependent Indian community, the Church Rock community. 27

33 Case: Document: Date Filed: 12/01/2009 Page: 33 Respectfully submitted, ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP By: s/richard W.Hughes 12/1/09 Richard W. Hughes Post Office Box 8180 Santa Fe, New Mexico (505) Attorneys for Amicus Pueblo of Santa Clara SONOSKY, CHAMBERS, SACHSE, MIELKE & BROWNELL David C. Mielke Gary Brownell 500 Marquette Ave. NW, #1310 Albuquerque, New Mexico (505) Attorneys for Amici Pueblos of Sandia, Isleta and Zia CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that a copy of the foregoing Brief of Pueblos of Santa Clara, Sandia, Isleta and Zia as Amici Curiae as submitted in digital form is an exact copy of the written document filed with the Clerk and has been scanned for viruses with the Symantec Anti-Virus program, version , Virus Definitions File Dated 11/30/2009, rev. 4, and, according to the program, is free of viruses. 28

34 Case: Document: Date Filed: 12/01/2009 Page: 34 s/ Lynne E. Stroud 12/1/09 Legal Assistant CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief complies with the type-volume limitation set forth in Rule 32(a)(7)(B), Fed.R.App.P., in that according to the word count of the Word Perfect word processing system by which it was created it contains 6663 words, exclusive of the portions exempted by Rule 32(a)(7)(B)(iii). s/richard W. Hughes 12/1/09 CERTIFICATE OF SERVICE I hereby certify that on the 1 st of December, 2009, I caused two true copies of the foregoing Brief of Pueblos of Santa Clara, Sandia, Isleta and Zia as Amici Curiae to be sent by United States Mail to the following: Paul E. Frye Frye Law Firm, P.C Academy N.E., Suite 310 Albuquerque, New Mexico Marc D. Flink Baker & Hostetler, LLP 303 E. 17 th Street, Suite 1100 Denver, Colorado Jon J. Indall Comeau, Maldegen, Templeman & Indall, LLP 29

35 Case: Document: Date Filed: 12/01/2009 Page: East Palace Ave. Santa Fe, New Mexico David A. Carson U.S. Dept. of Justice Environment & Natural Resources Div Stout Street 8th Floor Denver, Colorado Christopher D. Coppin Special Asst. Attorney General State of New Mexico 111 Lomas, N.W., Suite 300 Albuquerque, New Mexico Robert W. Lawrence Davis, Graham & Stubbs, LLP th Street, Suite 500 Denver, Colorado Additionally, on the same date a copy of the digital submission in electronic form was ed to: pef@fryelaw.us david.a.carson@usdoj.gov ccoppin@ago.state.nm.us mflink@bakerlaw.com jindall@cmtisantafe.com rober.lawrence@dgslaw.com s/richard W. Hughes 12/1/09 ROTHSTEIN, DONATELLI, HUGHES, DAHLSTROM, SCHOENBURG & BIENVENU, LLP 30