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Pueblos Amicus Brief Case: 07-9506 Document: 01018322618 Date Filed: 12/01/2009 Page: 1 No. 07-9506 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 87504-8180 (505) 988-8004 Attorneys for Amicus Pueblo of Santa Clara SONOSKY, CHAMBERS, SACHSE, MIELKE & BROWNELL David C. Mielke 500 Marquette Ave. NW, #1310 Albuquerque, New Mexico 87102-5335 (505) 247-0147 Attorneys for Amici Pueblos of Sandia, Isleta and Zia December 1, 2009 Case: 07-9506 Document: 01018322618 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. .........................10 D. The Dependent Indian Community as the “Community of Reference.” .....................................15 E. The “Public Domain Navajos.” ..........................17 F. The Status of Fee Land Within Dependent Indian Communities. .....................................20 II. NOTHING IN VENETIE SUPPORTS THE CLAIM THAT THE INDIAN COUNTRY ANALYSIS SHOULD DISREGARD THE INDIAN COMMUNITY, OR SHOULD BE TRACT-BY-TRACT. ............24 CONCLUSION ...................................................27 CERTIFICATE OF DIGITAL SUBMISSION ...........................28 CERTIFICATE OF COMPLIANCE ...................................29 CERTIFICATE OF SERVICE .......................................29 Case: 07-9506 Document: 01018322618 Date Filed: 12/01/2009 Page: 3 TABLE OF AUTHORITIES I. CASES A. Federal Cases 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 (9th 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 (10th Cir. 1964) .....................23 HRI v. EPA, 198 F.3d 1224 (10th 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 (10th Cir. 1987) ...............18 Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531 (10th Cir. 1995) ...................................................15, 16 Pittsburgh & Midway Coal Mining Co. v. Yazzie, 904 F.2d 1419 (10th 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 Case: 07-9506 Document: 01018322618 Date Filed: 12/01/2009 Page: 4 United States v. Roberts, 185 F.3d 1125 (10th 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. 28 10 United States v. Tsosie, 92 F.3d 1037 (10th 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 887 ........ passim 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 ......................21, 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. § 1151 ..........................................1, 15, 23, 27 18 U.S.C. § 1151(a) .............................................21, 22 18 U.S.C. § 1151(b) ................................................... passim 18 U.S.C. § 3669 .......................................................... 14 25 U.S.C. § 177 (Nonintercourse Act) ...........................6, 7, 8, 13 25 U.S.C. § 247 ...................................................14 Act of Feb. 27, 1851, ch. 13, 9 Stat. 574 .................................5 iii Case: 07-9506 Document: 01018322618 Date Filed: 12/01/2009 Page: 5 Act of July 22, 1854, ch. 103, 10 Stat. 308 ...............................6 Act of Dec. 22, 1858, ch. 5, 11 Stat. 374 ................................6 Act of Jan. 30, 1897, ch.109, 29 Stat. 506 ...........................10, 11 Act of May 29, 1928, ch. 853, 45 Stat.883 ...........................18, 19 New Mexico Enabling Act, Act of June 30, 1910, ch. 310, 36 Stat. 557 ........9 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, 24th 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) ..22 9 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 Case: 07-9506 Document: 01018322618 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 17th and 18th 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 Case: 07-9506 Document: 01018322618 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 Case: 07-9506 Document: 01018322618 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
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