PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation, Plaintiff - Appellant,
LORRAINE BARBOAN, a/k/a, Larene H. Barboan; BENJAMIN HOUSE, also known as, BENNIE HOUSE; ANNIE H. SORRELL, also known as, ANNA H. SORRELL; MARY ROSE HOUSE, also known as, MARY R. HOUSE; DOROTHY HOUSE, also known as, DOROTHY W. HOUSE; LAURA H. LAWRENCE, also known as, LAURA H. CHACO; JONES DEHIYA; JIMMY A. CHARLEY, also known as, JIM A. CHARLEY; MARY GRAY CHARLEY, also known as, MARY B. CHARLEY; BOB GRAY, Deceased, also known as, BOB GREY; CHRISTINE GRAY BEGAY, also known as, CHRISTINE G. BEGAY; THOMAS THOMPSON GRAY, also known as, THOMAS GREY; JIMMIE GREY, also known as, JIMMIE GRAY; MELVIN L. CHARLES, also known as, MELVIN L. CHARLEY; MARLA L. CHARLEY, also known as, MARLA CHARLEY; KALVIN A. CHARLEY; IRENE WILLIE, also known as, IRENE JAMES WILLIE; CHARLEY JOE JOHNSON, also known as, CHARLEY J. JOHNSON; ELOUISE J. SMITH; LEONARD WILLIE; SHAWN STEVENS; GLEN CHARLES CHARLESTON, also known as, GLEN C. CHARLESTON; GLENDA BENALLY, also known as, GLENDA G. CHARLESTON; NAVAJO NATION; UNITED STATES OF AMERICA, Defendants - Appellees, and APPROXIMATELY 15.49 ACRES OF LAND IN MCKINLEY COUNTY, NEW MEXICO; NAVAJO TRIBAL UTILITY AUTHORITY; CONTINENTAL DIVIDE ELECTRIC COOPERATIVE, INC.; TRANSWESTERN PIPELINE COMPANY, LLC; CITICORP NORTH AMERICA, INC.; CHEVRON USA INC., as successor in interest to Gulf Oil Corp.; HARRY HOUSE, Deceased; PAULINE H. BROOKS; LEO HOUSE, JR.; NANCY DEHEVA ESKEETS; LORRAINE SPENCER; LAURA A. CHARLEY; MARILYN RAMONE; WYNEMA GIBERSON; EDDIE MCCRAY, also known as, EDDIE R. MCCRAE; ETHEL DAVIS, also known as, ETHEL B. DAVIS; WESLEY E. CRAIG; HYSON CRAIG; NOREEN A. KELLY; ELOUISE ANN JAMES, also known as, ELOUISE JAMES WOOD, also known as, ELOISE ANN JAMES, also known as, ELOUISE WOODS; ALTA JAMES DAVIS, also known as, ALTA JAMES; ALICE DAVIS, also known as, ALICE D. CHUYATE; PHOEBE CRAIG, also known as, PHOEBE C. COWBOY; NANCY JAMES, also known as, NANCY JOHNSON; BETTY JAMES, Deceased; LINDA C. WILLIAMS, also known as, LINDA CRAIG-WILLIAMS; GENEVIEVE V. KING; LESTER CRAIG; FABIAN JAMES; DAISY YAZZIE CHARLES, also known as, DAISY YAZZIE, also known as, DAISY J. CHARLES; ROSIE YAZZIE, Deceased; KATHLEEN YAZZIE JAMES, also known as, CATHERINE R. JAMES; VERNA M. CRAIG; JUANITA SMITH, also known as, JUANITA R. ELOTE; ALETHEA CRAIG, SARAH NELSON, LARRY DAVIS, JR.; BERDINA DAVIS; MICHELLE DAVIS; STEVEN MCCRAY; VELMA YAZZIE; GERALDINE DAVIS; LARRISON DAVIS, also known as, LARRISON P. DAVIS; ADAM MCCRAY; MICHELLE MCCRAY; EUGENIO TY JAMES; LARSON DAVIS; CORNELIA A. DAVIS; CELENA DAVIS, also known as, CELENA BRATCHER; FRANKIE DAVIS; VERNA LEE BERGEN CHARLESTON, also known as, VERNA L. CHARLESTON; VERN CHARLESTON; KELLY ANN CHARLESTON, also known as, KELLY A. CHARLESTON; SHERYL LYNN CHARLESTON, also known as, SHERYL L. CHARLESTON; SPENCER KIMBALL CHARLESTON, JR., Deceased; EDWIN ALLEN CHARLESTON, also known as, EDWIN A. CHARLESTON; CHARLES BAKER CHARLESTON, also known as, CHARLES B. CHARLESTON; SAM MARIANO; HARRY HOUSE, JR; MATILDA JAMES; DARLENE YAZZIE; UNKNOWN OWNERS, CLAIMANTS AND HEIRS OF THE PROPERTY INVOLVED; UNKNOWN HEIRS OF HARRY HOUSE, Deceased; UNKNOWN HEIRS OF BOB GRAY (BOB GREY), Deceased; UNKNOWN HEIRS OF BETTY JAMES, Deceased; UNKNOWN HEIRS OF ROSIE C. YAZZIE, Deceased; UNKNOWN HEIRS OF SPENCER KIMBALL CHARLESTON, JR., (SPENCER K. CHARLESTON), Deceased; UNKNOWN HEIRS OF HELEN M. CHARLEY, Deceased; ESTATE OF ROSIE C. YAZZIE; ESTATE OF SPENCER K. CHARLESTON; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants. GPA MIDSTREAM ASSOCIATION; THE NATIONAL CONGRESS OF AMERICAN INDIANS; PUEBLO OF LAGUNA; THE UTE MOUNTAIN UTE TRIBE; THE CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION, TRANSWESTERN PIPELINE COMPANY, LLC, Amici Curiae.
from the United States District Court for the District of New
Mexico (D.C. No. 1:15-CV-00501-JAP-CG)
R. Allen (Stephen B. Waller, with him on the briefs), Miller
Stratvert P.A., Albuquerque, New Mexico, for
Spruhan, Assistant Attorney General (Ethel Branch, Attorney
General, with him on the brief), Navajo Nation Department of
Justice, Window Rock, Arizona, for Navajo Nation,
Jeffrey S. Beelaert (John C. Cruden, Assistant Attorney
General, James C. Kilbourne, William B. Lazarus, and Mary
Gabrielle Sprague, Attorneys, with him on the brief), U.S.
Department of Justice, Washington, D.C., for the United
Zackeree S. Kelin (Michael M. Mulder, The Law Offices of
Michael M. Mulder, Evanston, Illinois, with him on the
brief), Davis Kelin Law Firm LLC, Albuquerque, New Mexico,
for the Individual Allottees, Defendants-Appellees.
Russell and Stratton Taylor, Taylor, Foster, Mallett, Downs
Ramsey & Russell, Claremore, Oklahoma, filed an amicus
brief for GPA Midstream Association, in support of
Jennifer H. Weddle, Troy A. Eid, Harriet McConnell, and Laura
E. Jones, Greenberg Traurig, LLP, Denver, Colorado, for Ute
Mountain Ute Tribe; John Dossett, National Congress of
American Indians, Embassy of Trial Nations, Washington, D.C.;
Dan Rey-Bear, Rey-Bear McLaughlin, LLP, Spokane, Washington,
for Pueblo of Laguna; Naomi Stacy and Dan Hester, for
Confederated Tribes of the Umatilla Indian Reservation,
Pendleton, Oregon, Amici Curiae.
M. Bennett and Emil J. Kiehne, Modrall Sperling Roehl Harris
& Sisk, PA, Albuquerque, New Mexico, filed an amicus
brief for Transwestern Pipeline Company, LLC, in support of
BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
PHILLIPS, Circuit Judge.
to win the consent of all necessary landowners, a public
utility company now contends that it has a statutory right to
condemn a right-of-way on two parcels of land in New Mexico.
Because federal law does not permit condemnation of tribal
land, the Navajo Nation's ownership of undivided
fractional interests in the parcels presents a problem for
the company. We affirm the district court's dismissal of
the condemnation action against the two land parcels in which
the Navajo Nation holds an interest.
can feign surprise to learn that the United States
government's treatment of the original inhabitants of
this country has not been a model of justice. The government
spent much of the nineteenth century emptying the eastern
part of the country of Indians and sending them west. See
Choctaw Nation v. Oklahoma, 397 U.S. 620, 623-26 (1970).
Then, when settlers caught up with the tribes in the west,
the government sought to confine those tribes, and other
tribes native to the west, ever more tightly onto
reservations. See, e.g., Williams v. Lee,
358 U.S. 217, 221-23 (1959). Much tragedy and bloodshed
late nineteenth century, after the government had largely
segregated Indians from the rest of society, Congress changed
course. But the new course still harmed Indian tribes and
their members. Instead of excluding tribal members from
American society while permitting them some autonomy on the
reservations, Congress tried to force tribes to assimilate
into American society, minus much of their autonomy. Congress
carved reservations into allotments and assigned the land
parcels to tribal members-surplus lands were made available
to white settlers. So began the Allotment Era. "The
objectives of allotment were simple and clear cut: to
extinguish tribal sovereignty, erase reservation boundaries,
and force the assimilation of Indians into the society at
large." Cty. of Yakima v. Confederated Tribes &
Bands of Yakima Indian Nation, 502 U.S. 251, 254 (1992).
The Allotment Era "was fueled in part by the belief that
individualized farming would speed the Indians'
assimilation into American society and in part by the
continuing demand for new lands for the waves of homesteaders
moving West." Solem v. Bartlett, 465 U.S. 463,
began allotting land one tribe at a time and allowed Indians
to sell the land as soon as they received it. Cty. of
Yakima, 502 U.S. at 254. Tribal members began to lose
their allotted lands in hasty and even fraudulent
transactions. Id. In 1887, Congress passed the
General Allotment Act, commonly known as the Dawes Act, which
allowed the President to apply the allotment process to most
tribal lands across the country, without tribal consent.
Id. But as a check against the rapid post-allotment
loss of Indian land, Congress also mandated that the federal
government would hold Indian-allotted land in trust for
twenty-five years, after which time it would issue a fee
patent to the allottee or his heirs. Id.
this attempted protection, "[t]he policy of allotment of
Indian lands quickly proved disastrous for the Indians."
Hodel v. Irving, 481 U.S. 704, 707 (1987). As
allotments spread throughout the country, Indians continued
to lose land-by the time the Allotment Era ended in 1934, as
much as two-thirds of allotted lands had passed out of Indian
ownership. Felix S. Cohen, Cohen's Handbook of
Federal Indian Law § 1.04 (Nell Jessup Newton, et
al. eds., 2012 ed.). Even the twenty-five-year trust
protection did serious harm: "parcels became splintered
into multiple undivided interests in land, with some parcels
having hundreds . . . of owners. Because the land was held in
trust and often could not be alienated or partitioned, the
fractionation problem grew and grew over time."
Hodel, 481 U.S. at 707.
allotments began to create a checkerboard of tribal,
individual Indian, and individual non-Indian land interests,
Congress passed several right-of-way statutes to help ensure
that necessities such as telegraph lines and roads could
continue without encumbrance. See United States v. Okla.
Gas & Elec. Co., 127 F.2d 349, 352 (10th Cir. 1942),
aff'd, 318 U.S. 206 (1943). In 1901, Congress
passed one such Act. Act of March 3, 1901, ch. 832, 31 Stat.
1058 (the Act). The Act's most relevant section for our
purposes, which is codified at 25 U.S.C. § 357, lies at
the center of this appeal:
Lands allotted in severalty to Indians may be condemned for
any public purpose under the laws of the State or Territory
where located in the same manner as land owned in fee may be
condemned, and the money awarded as damages shall be paid to
Id. § 3, 31 Stat. 1084 (codified as amended at
25 U.S.C. § 357).
construing § 357's meaning, it helps to compare the
Act's preceding paragraph. Id. § 3, 31
Stat. 1083 (codified as amended at 25 U.S.C. § 319).
Unlike § 357, § 319 limited the tribes'
exclusive use of tribal lands. Section 319 gave the Secretary
of the Interior authority to grant rights-of-way for
telephone and telegraph lines through Indian reservations,
through lands held by Indian tribes or nations in the former
Indian Territory, through lands reserved for Indian agencies
or schools, and "through any lands which have been
allotted in severalty to any individual Indian under any law
or treaty." Id.
comparison, § 357 does not mention any condemnation
authority for rights-of-way through Indian reservations and
other types of non-allotted tribal lands. And even without
that context, we see no language in § 357 that
authorizes condemnation of tribal land, a result Congress has
full power to order if it chooses. Cherokee Nation v. S.
Kan. Ry. Co., 135 U.S. 641, 656-57 (1890). Thus, as we
have noted, "a plain and clear distinction" exists
"between the granting of rights-of-way over and across
reservations or tribal lands and those allotted in severalty
to restricted Indians." Okla. Gas & Elec.
Co., 127 F.2d at 354.
the failure to authorize condemnation of tribal lands stemmed
from a belief that doing so was unnecessary. After all, the
Congresses of the Allotment Era "anticipated the
imminent demise of the reservation." Solem, 465
U.S. at 468. What need would a party have to condemn tribal
land if soon no tribal lands would exist? And yet Congress
has never enlarged § 357's condemnation authority
even after it has become clear that tribes and reservations
are here to stay.
1934, Congress again shifted course on Indian affairs. But
this time, perhaps for the first time in American history,
the congressional pendulum swung decisively toward favoring
tribal sovereignty. The 1934 Indian Reorganization Act ended
the Allotment Era-Congress halted allotments, began restoring
unallotted surplus land to tribal ownership, and indefinitely
extended the twenty-five-year trust period for allotted
lands. Indian Reorganization Act of 1934, ch. 576, 48 Stat.
984 (codified as amended at 25 U.S.C. §§
5101-5144); Cty. of Yakima, 502 U.S. at 255.
Extensive federal efforts later even began to help tribes buy
back lost land-efforts that continue to this day. See,
e.g., Indian Land Consolidation Act, Pub. L. No. 97-459,
96 Stat. 2515 (1983) (codified as amended at 25 U.S.C.
§§ 2201-2221) (setting up mechanisms to consolidate
tribal holdings); Claims Resolution Act of 2010, Pub. L. No.
111-291, 124 Stat. 3064, 3066-3067 (authorizing a $1.9
billion land buy-back program for tribal nations). Among
other avenues, tribes may now purchase interests in