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Public Service Co. of New Mexico v. Barboan

United States Court of Appeals, Tenth Circuit

May 26, 2017

PUBLIC SERVICE COMPANY OF NEW MEXICO, a New Mexico corporation, Plaintiff - Appellant,
v.
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.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:15-CV-00501-JAP-CG)

          Kirk R. Allen (Stephen B. Waller, with him on the briefs), Miller Stratvert P.A., Albuquerque, New Mexico, for Plaintiff-Appellant.

          Paul Spruhan, Assistant Attorney General (Ethel Branch, Attorney General, with him on the brief), Navajo Nation Department of Justice, Window Rock, Arizona, for Navajo Nation, Defendant-Appellee.

          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 States, Defendant-Appellee.

          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.

          Clint Russell and Stratton Taylor, Taylor, Foster, Mallett, Downs Ramsey & Russell, Claremore, Oklahoma, filed an amicus brief for GPA Midstream Association, in support of Plaintiff-Appellant.

          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.

          Deana 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 Plaintiff-Appellant.

          Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.

          PHILLIPS, Circuit Judge.

         Unable 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.

          I

         No one 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 ensued.

         In the 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, 466 (1984).

         Congress 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.

         Despite 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.

         As 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 the allottee.

Id. § 3, 31 Stat. 1084 (codified as amended at 25 U.S.C. § 357).

         In 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.

         In 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.

         Perhaps 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.

         In 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. ยงยง 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 ...


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