Pueblo of Jemez v. United States ( 2023 )

Appellate Case: 20-2145 Document: 010110830843 Date Filed: 03/22/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 22, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
PUEBLO OF JEMEZ, a federally
recognized Indian Tribe,
Plaintiff - Appellant,
v. No. 20-2145
UNITED STATES OF AMERICA,
Defendant - Appellee,
and
NEW MEXICO GAS COMPANY,
Intervenor Defendant- Appellee.
------------------------------
ROBERT A WILLIAMS, JR.; REBECCA
TSOSIE; MATTHEW L.M. FLETCHER;
KRISTEN A. CARPENTER; JOHN
BORROWS; NELL JESSUP NEWTON;
SETH DAVIS; HEATHER D.
WHITEMAN RUNS HIM; AMERICANS
FOR INDIAN OPPORTUNITY;
ASSOCIATION ON AMERICAN
INDIAN AFFAIRS; INDIAN LAND
TENURE FOUNDATION; INDIAN LAW
RESOURCE CENTER; INDIAN LAND
WORKING GROUP; KEWA PUEBLO,
f/k/a Santo Domingo Pueblo; OHKAY
OWINGEH; PICURIS PUEBLO;
PUEBLO OF ACOMA; PUEBLO OF
COCHITI; PUEBLO DE SAN
ILDEFONSO; PUEBLO OF ISLETA;
Appellate Case: 20-2145 Document: 010110830843 Date Filed: 03/22/2023 Page: 2
PUEBLO OF POJOAQUE; PUEBLO OF
SANDIA; PUEBLO OF SAN FELIPE;
PUEBLO OF SANTA ANA; PUEBLO OF
TESUQUE; TAOS PUEBLO; YSLETA
DEL SUR PUEBLO; ZUNI TRIBE OF
THE ZUNI INDIAN RESERVATION;
ROBERT ALAN HERSHEY; PUEBLO
OF LAGUNA,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:12-CV-00800-JB-JFR)
_________________________________
Christina S. West of Barnhouse Keegan Solimon & West LLP, Los Ranchos de
Albuquerque, New Mexico (Randolph H. Barnhouse and Tierra N. Marks of Barnhouse
Keegan Solimon & West LLP, Los Ranchos de Albuquerque, New Mexico; Thomas E.
Luebben of Law Offices of Thomas E. Luebben, Santa Fe, New Mexico, with her on the
brief), for Plaintiff-Appellant.
Mary Gabrielle Sprague, Attorney, Environment and Natural Resources Division, U.S.
Department of Justice (Todd Kim, Assistant Attorney General, with her on the brief),
Washington, D.C., for Defendant-Appellee.
Kirk R. Allen and Elizabeth M. Reitzel, Miller Stratvert, P.A., Albuquerque, New
Mexico, for Intervenor Defendant-Appellee.
Zackeree S. Kelin of Davis Kelin Law Firm, LLC, Albuquerque, New Mexico, filed an
amicus curiae brief on behalf of Plaintiff-Appellant, for Kewa Pueblo (f.k.a. Santo
Domingo Pueblo), Ohkay Owingeh, Picuris Pueblo, Pueblo of Acoma, Pueblo of Cochiti,
Pueblo de San Ildefonso, Pueblo of Isleta, Pueblo of Pojoaque, Pueblo of Sandia, Pueblo
of San Felipe, Pueblo of Santa Ana, Pueblo of Tesuque, Taos Pueblo, Ysleta Del Sur
Pueblo, The Zuni Tribe of the Zuni Indian Reservation, joined by The Pueblo of Laguna,
James M. Burson, General Counsel and Government Affairs Director, Pueblo of Laguna,
Laguna, New Mexico, for the Pueblo of Laguna.
Gregory P. Barbee of Sheppard Mullin Richter & Hampton, LLP, Los Angeles,
California, filed an amicus curiae brief on behalf of Plaintiff-Appellant, for Americans
for Indian Opportunity, Association of American Indian Affairs, Indian Land Tenure
Foundation, Indian Law Resource Center, and Indian Law Working Group.
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Robert Alan Hershey, Clinical Professor of Law Emeritus, James E. Rogers College of
Law, Tucson, Arizona, filed an amicus curiae brief on behalf of Plaintiff-Appellant, for 9
Professors of Indian Law.
_________________________________
Before PHILLIPS, MORITZ, and EID, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
This case returns to us after remand and trial. It arises from the Pueblo of
Jemez’s (“the Jemez Pueblo”) action against the United States under the Quiet Title
Act (“QTA”), 28 U.S.C. § 2409a. At trial, the Jemez Pueblo claimed aboriginal title
to the entire lands now comprising the Valles Caldera National Preserve (“Valles
Caldera”), which the United States purchased from private landowners in 2000.
In an earlier appeal, we reviewed the district court’s ruling dismissing the case
for lack of subject-matter jurisdiction. We reversed and remanded. Pueblo of Jemez v.
United States (Jemez I), 790 F.3d 1143, 1170–73 (10th Cir. 2015). We ruled that an
1860 federal grant of title to private landowners would not extinguish the Jemez
Pueblo’s claimed aboriginal title. And we remanded for the Jemez Pueblo to establish
that it once and still had aboriginal title to the lands at issue.
After a twenty-one-day trial, the district court ruled that the Jemez Pueblo
failed to establish ever having aboriginal title to the entire lands of the Valles
Caldera. It concluded that the Jemez Pueblo had failed to show that it ever used the
entire claimed land to the exclusion of other Indian groups.
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The Jemez Pueblo moved for reconsideration under Federal Rule of Civil
Procedure 59(e). But rather than seek reconsideration of its complaint’s QTA claim
to the entire Valles Caldera, the Jemez Pueblo shrunk its QTA claim into claims of
title to four discrete subareas within the Valles Caldera: (1) Banco Bonito, (2) the
Paramount Shrine Lands, (3) Valle San Antonio, and (4) the Redondo Meadows. The
district court declined to reconsider all but Banco Bonito, on grounds that the Jemez
Pueblo hadn’t earlier provided the government notice of these claims. Even so, being
thorough, the court later considered and rejected those three claims on the merits.
As for Banco Bonito, the district court concluded that the Jemez Pueblo had
given the government notice of this claim by asserting it in its earlier partial-
summary-judgment motion. On reconsideration, the district court approached the
Jemez Pueblo’s claim to aboriginal title over Banco Bonito in two steps. First, it
found that the Jemez Pueblo had established aboriginal title to Banco Bonito between
the early 1400s and 1650. Second, operating on its understanding of Jemez I, the
court found that the Jemez Pueblo had lost that title sometime after 1650 by not
continuously maintaining its use to the exclusion of other Indian groups.
Of the issues raised by the Jemez Pueblo on appeal, we primarily address its
challenge to the district court’s ruling that the Jemez Pueblo lost aboriginal title to
Banco Bonito. We conclude that the district court erroneously interpreted Jemez I in
ruling that the Jemez Pueblo lost its established aboriginal title to Banco Bonito.
Contrary to the district court’s reading, Jemez I does not set a condition that the
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Jemez Pueblo use the land to the exclusion of other Indian groups after aboriginal
title is established.
In our circuit, both before and after Jemez I, the Jemez Pueblo could lose its
established aboriginal title to Banco Bonito only if its title had been extinguished or
abandoned. And the district court concluded that neither of those conditions had
occurred. So in accordance with longstanding Supreme Court precedent, and by the
district court’s findings, the Jemez Pueblo still has aboriginal title to Banco Bonito.
Thus, exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part the
denial of the Jemez Pueblo’s motion for reconsideration, and we vacate in part and
remand with instructions to the district court to enter judgment consistent with this
opinion. We affirm in all other respects.
BACKGROUND
I. Factual Background1
This case presents a dispute over title to the lands within the Valles Caldera—a
supervolcano crater spanning twelve miles across the Jemez Mountains of New
Mexico. For over 800 years, many American Indian tribes and pueblos have used the
Valles Caldera for hunting, gathering, and various cultural and religious practices.
Redondo Peak, the highest mountain in the Valles Caldera, is a site long used by
1
These undisputed facts come from the district court’s thorough Sealed
Memorandum Opinion, Findings of Fact, Conclusions of Law, and Order and Sealed
Memorandum Opinion and Order resolving the Jemez Pueblo’s Motion to
Reconsider.
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multiple Indian groups for religious pilgrimages. It is home to several shrines,
including the Jemez Pueblo Shrine.2
The ancestral Jemez first occupied agricultural sites within the Valles Caldera
in the late 1200s and early 1300s CE.3 Between 1300 and 1700 CE, the Jemez Pueblo
built thirty-five villages and thousands of fieldhouses in an area of the Valles Caldera
known as the northern Rio Jemez watershed. Most relevant here, the Jemez Pueblo
occupied 100 fieldhouses on Banco Bonito, located in the southwestern corner of the
Valles Caldera, throughout a 400-year period, but mainly between 1500 and 1650
CE. The Jemez Pueblo built and exclusively occupied the fieldhouses in Banco
Bonito—the only Indian tribe ever to do so.
By 1650, the Jemez Pueblo’s farming of Banco Bonito had largely ceased. But in
the 350-plus years since then, the Jemez Pueblo has continuously used Banco Bonito in
accessing Redondo Peak and other parts of the Valles Caldera. In doing so, the Jemez
Pueblo traverses a trail network through Banco Bonito, to Redondo Peak, and to other
surrounding areas in the southwestern corner of the Valles Caldera.
In 1860, Congress authorized Luis Maria de Baca’s heirs (“Baca heirs”) to select
up to five square tracts of vacant land totaling nearly 500,000 acres anywhere within the
New Mexico Territory. See Act of June 21, 1860, Pub. L. No. 36–197, 12 Stat. 71 (“1860
Act”). The 1860 Act settled a Mexican land-grant dispute with the town of Las Vegas,
2
The Jemez Pueblo calls this shrine the Paramount Shrine.
3
“CE stands for of the common era” and “is an alternative way of expressing
the concept denoted by AD.” Jemez I, 790 F.3d at 1148 n.5.
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New Mexico. The Baca heirs’ first-selected parcel included 99,289 acres in and near the
Valles Caldera (“Baca Location No. 1”). Baca Location No. 1 has had many corporate
and individual owners over the proceeding decades.
In 2000, Congress passed the Valles Caldera Preservation Act (“Preservation
Act”). Jemez I, 790 F.3d at 1149–50. The Preservation Act authorized the purchase of the
property interests of the Baca heirs’ successors-in-interest in 94,761 acres in Baca
Location No. 1.4 This purchase led to the establishment of the Valles Caldera National
Preserve.
II. Procedural History
In 2012, the Jemez Pueblo sued the United States under the QTA, 28 U.S.C.
§ 2409a, to quiet title to the Jemez Pueblo’s interest in all of the lands within the Valles
Caldera National Preserve. Along with quieting title, the Jemez Pueblo sought a judgment
4
The Preservation Act was repealed and replaced by the National Defense
Authorization Act of 2015, Pub. L. No. 113–291, § 3043, 128 Stat. 3292, 3792
(“National Defense Act”). The National Defense Act provides that the Secretary of
the Interior, “in consultation with Indian tribes and pueblos, shall ensure the
protection of traditional cultural and religious sites in the [Valles Caldera] Preserve.”
Id. § 3043(b)(11)(A), 128 Stat. at 3795. It also provides that the Secretary “shall
provide access” to such sites by “members of Indian tribes or pueblos” and “may, on
request of an Indian tribe or pueblo, temporarily close to [the] general public . . .
specific areas of the Preserve to protect traditional cultural and customary uses” of
those areas. Id. § 3043(b)(11)(B), 128 Stat. at 3795–96.
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declaring that it “has the exclusive right to use, occupy and possess” the lands of the
Preserve under its continuing aboriginal title. App. vol. 1, at 71.
In 2013, the district court dismissed the suit for lack of subject-matter jurisdiction.
It held that the 1860 Act extinguished the Jemez Pueblo’s claimed aboriginal title. If so,
this meant that the Jemez Pueblo had overslept its sole remedy—a pre-1951 claim for
compensation with the Indian Claims Commission (“ICC”) as provided by the Indian
Claims Commission Act (“ICCA”).5 In those circumstances, the district court held that
sovereign immunity barred the Jemez Pueblo’s QTA claim to the entire Valles Caldera.
We reversed and remanded for further proceedings. In directing the remand, we
assumed—subject to the district court’s ultimate say—that the Jemez Pueblo would be
able to establish aboriginal title to the Valles Caldera before the 1860 Act. With that in
mind, we held that “the 1860 grant by the United States of Baca Location No. 1 did not
by itself extinguish aboriginal title of the Jemez Pueblo such that the Pueblo was required
to bring a claim against the United States when Congress enacted the ICCA in 1946.” Id.
at 1170; see also id. at 1158 (“[A]lthough grants by the United States of land in
possession of the Indians conveys fee title, the grant does not impair aboriginal title,
5
The ICCA was enacted in 1946. Jemez I, 790 F.3d at 1152. It waived
sovereign immunity and “created the [ICC], a quasi-judicial body to hear and
determine all tribal claims against the United States that accrued before August 13,
1946. The ICCA imposed a five year statute of limitations period on Indian claims in
law and equity then existing and arising under the Constitution, federal law, and
treaties between Indian tribes and the United States.” Id. (internal quotations and
citations omitted). In 1978, Congress abolished the ICC and transferred all remaining
cases to the Court of Federal Claims. Navajo Tribe of Indians v. New Mexico, 809
F.2d 1455, 1461 (10th Cir. 1987).
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which the grantee must respect until aboriginal title has been extinguished by treaty,
agreement, or other authorized actions of the Indians or Congress.” (citation omitted)).
We left it on remand for the government, if it chose, to show that federally authorized use
of Baca Location No. 1 by the Baca heirs had substantially interfered with the Jemez
Pueblo’s traditional use of the land and thus extinguished the Jemez Pueblo’s aboriginal
title. See id. at 1168.
Back in district court after our remand, the Jemez Pueblo moved for partial
summary judgment that it once and still had aboriginal title to two subareas of the Valles
Caldera—Banco Bonito and Redondo Mountain. The district court denied this motion
after finding genuine issues of material fact about whether the Jemez Pueblo had ever
used those areas to the exclusion of other Indian groups.
Next, the district court held a twenty-one-day bench trial to determine whether the
Jemez Pueblo had proved its QTA claim of aboriginal title to the entire Valles Caldera.
There, the district court examined whether the Jemez Pueblo had established and
continuously maintained aboriginal title to the lands of the Valles Caldera.
After trial, the district court issued a 530-page memorandum opinion. It concluded
that though the Jemez Pueblo had met its burden to show continuous and actual use of the
entire lands of the Valles Caldera for a long time, the Jemez Pueblo had failed to show
use to the exclusion of other Indian groups. In support, the court noted that “for many
centuries, non-Jemez Pueblo American Indians, including the ancestors of numerous
modern Pueblos and federally recognized Tribes, wandered throughout and actually used
the Valles Caldera . . . to sustain their aboriginal communities in ways substantially
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similar to Jemez Pueblo.” App. vol. 4, at 258. So, because it ruled that the Jemez Pueblo
had never used the entire Valles Caldera to the exclusion of other Indian groups, the
district court held that the Jemez Pueblo had never possessed aboriginal title to the entire
area.
The Jemez Pueblo moved for reconsideration. But instead of asking the court to
reconsider whether the Jemez Pueblo had aboriginal title to the entire Valles Caldera, it
departed from its pleaded QTA claim and asked the court to reconsider a narrower
question—whether the Jemez Pueblo had aboriginal title to four subareas within the
Valles Caldera: (1) Banco Bonito; (2) Redondo Meadows; (3) the western two-thirds of
the Valle San Antonio; and (4) the Paramount Shrine Lands. The Paramount Shrine
Lands, according to the Jemez Pueblo, encompass the Jemez Pueblo Shrine on Redondo
Peak, the Underworld Pilgrimage Trail leading to the Jemez Pueblo Shrine, and three
springs along the trail.
The district court denied in part and granted in part the Jemez Pueblo’s motion for
reconsideration in a 192-page memorandum opinion. Under Federal Rule of Civil
Procedure 59(e), the district court ruled that it could not reconsider the Jemez Pueblo’s
claims to the Redondo Meadows, part of the Valle San Antonio, and the Paramount
Shrine Lands. This was so, the court said, because the Jemez Pueblo had pleaded and
litigated a single claim for the entire Valles Caldera, not for any discrete areas. This
meant that the Jemez Pueblo had failed to put the government on notice of its claims to
three of the discrete areas (those other than Banco Bonito). In contrast, the court viewed
the Jemez Pueblo’s claim to Banco Bonito as one tried by consent because the Jemez
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Pueblo’s partial-summary-judgment motion had put the government on notice of that
claim.
Even so, being thorough, the district court resolved the merits of the Jemez
Pueblo’s claims to the other three subareas. It held that the Jemez Pueblo could not
establish that it ever had aboriginal title to the western two-thirds of Valle San Antonio or
the Redondo Meadows because it had never used those subareas to the exclusion of other
Indian groups. It further held that the Jemez Pueblo did not have aboriginal title to the
features making up the Paramount Shrine Lands—the Jemez Pueblo Shrine, the trail, and
the three springs—because the Jemez Pueblo had failed to establish that it ever had
aboriginal title to the land surrounding those features.
The district court also rejected the Jemez Pueblo’s claim to Banco Bonito. It began
by concluding that the Jemez Pueblo had established “aboriginal title to Banco Bonito
during the time it heavily farmed the area between the early fifteenth century and 1650.”
App. vol. 6, at 183. In deciding whether the Jemez Pueblo had ever lost that title, the
court noted that even after 1650, when the Jemez Pueblo ceased farming Banco Bonito,
“[1] another Tribe did not conquer Jemez Pueblo, [2] the United States did not extinguish
title to any land on the Banco Bonito, and [3] Jemez Pueblo also did not completely
abandon its Banco Bonito use.” Id. at 184. Importantly, the district court emphasized that
“[i]f Jemez Pueblo only had to show that it possessed aboriginal title at one point and
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then never abandoned the land or had it extinguished, the Court would conclude that
Jemez Pueblo has established aboriginal title to Banco Bonito.” Id. at 183.
Even so, believing Jemez I compelled its result, the district court denied the Jemez
Pueblo’s claim of aboriginal title to Banco Bonito. The court ruled that the Jemez Pueblo
lost its aboriginal title after 1650 by not maintaining exclusive use of Banco Bonito to the
exclusion of other Indian groups. In that regard, the district court found that “after 1650,
with a much reduced presence on Banco Bonito and a smaller population, there is no
evidence that Jemez Pueblo was able to walk through Banco Bonito ‘to the exclusion of
other Indian groups,’ and there is some evidence that it could not.” Id. at 185 (quoting
Jemez I, 790 F.3d at 1166). Though finding that the Jemez Pueblo had been the “primary
Indian group using the Banco Bonito over several centuries,” the court further noted that
“the record also establishes that the Banco Bonito was ‘wandered over by many tribes,’
United States v. Pueblo of San Ildefonso, [513 F.2d 1383, 1394 (Ct. Cl. 1975)], and that
Jemez Pueblo did not have the right or the power to expel any of these Indian groups.” Id.
at 196. Thus, the district court held that sometime between 1650 and 1850, the Jemez
Pueblo lost its aboriginal title to Banco Bonito.6
DISCUSSION
The Jemez Pueblo timely appealed the district court’s order dismissing its QTA
claim for the entire Valles Caldera, as well as its order on the Jemez Pueblo’s motion for
6
The district court granted the Jemez Pueblo’s request to delete one factual
finding and amend three conclusions of law from the post-trial order. But none of
those changes affected the court’s resolution of the Jemez Pueblo’s aboriginal-title
claims.
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reconsideration of the four subareas. But on appeal, the Jemez Pueblo has abandoned its
claim to the entire Valles Caldera and contests the reconsideration ruling for just two of
the subareas—Banco Bonito and the Paramount Shrine Lands. The Jemez Pueblo
presents two issues about these two subareas meriting discussion: (1) whether the district
court erred in concluding that the Jemez Pueblo has lost its established aboriginal title to
Banco Bonito and (2) whether the district court erred in concluding that Rule 59(e) barred
its reconsideration of its claim to the Paramount Shrine Lands and in its alternative ruling
that the Jemez Pueblo does not have aboriginal title to the Paramount Shrine Lands.7
After explaining the applicable standard of review and providing an overview of
the law of aboriginal title, we address each issue in turn.
I. Standard of Review
We review a district court’s conclusions of law made after a bench trial de novo
and its findings of fact for clear error. Leathers v. Leathers, 856 F.3d 729, 762 (10th Cir.
2017).
We review rulings on Rule 59(e) motions for an abuse of discretion. Nelson v. City
of Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019). “Under this deferential standard of
7
The Jemez Pueblo raises two other issues. First, it contends that the district
court erred by excluding certain tribal oral-tradition testimony as hearsay and by
stating that it would have given any such testimony no weight anyway. Second, it
argues that the district court erred in failing to apply “Indian canons of construction”
when interpreting Jemez I, when weighing circumstantial evidence, and when
evaluating the Jemez Pueblo’s claim to the Paramount Shrine Lands. But because the
resolution of these issues is unnecessary for the disposition of this appeal, we do not
reach them. Orr v. City of Albuquerque, 417 F.3d 1144, 1154 (10th Cir. 2005).
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review, we won’t disturb the district court’s ruling unless it was arbitrary, capricious,
whimsical, or manifestly unreasonable.” Eaton v. Pacheco, 931 F.3d 1009, 1027 (10th
Cir. 2019) (citation and internal quotations omitted); see also United States v. McComb,
519 F.3d 1049, 1053 (10th Cir. 2007) (noting that under the abuse-of-discretion standard
we “defer to the district court’s judgment so long as it falls within the realm of these
rationally available choices”). But an error of law per se constitutes an abuse of
discretion. United States v. Chavez-Meza, 854 F.3d 655, 657 (10th Cir. 2017).
II. Aboriginal Title
The Supreme Court first recognized the aboriginal right of occupancy—known
now as aboriginal title—in Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).8 Since
then, the Court has repeatedly affirmed that a tribe’s right of occupancy “is as sacred and
as securely safeguarded as is fee simple absolute title.” United States v. Shoshone Tribe
of Wind River Rsrv., 304 U.S. 111, 116–17 (1938); see also Oneida County v. Oneida
Indian Nation of N.Y. State, 470 U.S. 226, 235 (1985); United States v. Santa Fe Pac. R.
Co., 314 U.S. 339, 345 (1941); Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746 (1835).
Whether a tribe has aboriginal title to the land it claims is a fact question. Jemez I,
790 F.3d at 1165. To establish aboriginal title, the tribe has the burden to “show actual,
exclusive, and continuous use and occupancy for a long time of the claimed area.” Id.(internal citation and quotations omitted). To meet the “exclusive use” requirement, it
8
We provided a detailed background of the history of aboriginal-title law in
Jemez I, 790 F.3d at 1152–61.
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must prove “that it used and occupied the land to the exclusion of other Indian groups.”
Id. (emphasis removed and citation omitted).9 And to meet the “actual” and “continuous
use” requirements, it must show that, for a long time,10 its people have “use[d] the
[claimed land] for traditional purposes, including hunting, grazing of livestock, gathering
of medicine and of food for subsistence, and the like.” Id. at 1166.
The Supreme Court has emphasized that a tribe’s aboriginal title does not require
an affirmative act of the sovereign for its continued viability. Santa Fe, 314 U.S. at 347.
Once established, aboriginal title “endures until extinguished or abandoned.” Lipan
Apache Tribe v. United States, 180 Ct. Cl. 487, 492 (1967); see also Oneida Indian
Nation of N.Y. State v. Oneida County, 414 U.S. 661, 667 (1974) (aboriginal title is “good
9
The Court of Federal Claims has identified three exceptions to the general
rule of exclusive use and occupancy: (1) the joint-and-amicable-use exception; (2)
the dominated-use exception; and (3) the permissive-use exception. Ala.-Coushatta
Tribe of Tex. v. United States, No. 3-83, 2000 WL 1013532, at *16 (Fed. Cl. June 19,
2000). Under the joint-and-amicable-use exception, two or more Indian tribes may
maintain exclusive use of an area if the tribes have a strong political and social
alliance. Id. Under the dominated-use exception, an Indian tribe may claim exclusive
use where it “culturally assimilates another tribe or otherwise exercises complete
dominion over scattered groupings of other Indians that appear few and far between
in the claim area.” Id. at *17 (internal quotations omitted). And under the permissive-
use exception, other Indian tribes may wander over portions of the claimant tribe’s
land without defeating the exclusive-use requirement so long as the other groups’
presence was with the claimant tribe’s permission. Id. Our court has not yet
considered these exceptions.
10
In Jemez I, we noted that to meet the “for a long time” requirement to
establish aboriginal title, the Jemez Pueblo needed to show continuous use of the
Valles Caldera for “hundreds of years.” 790 F.3d at 1166. In noting that, we did not
mean to require continuous and actual use for “hundreds of years.” Rather, we
harkened to the complaint, which alleges aboriginal title to the Valles Caldera for
over 800 years. See App. vol. 1, at 59–60. We clarify this to avoid future confusion.
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against all but the sovereign” and “[can] be terminated only by sovereign act”); Williams
v. City of Chicago, 242 U.S. 434, 437–38 (1917) (holding that any claim to aboriginal
title was lost through the claimant tribe’s failure to continuously occupy the claimed
area); Mitchel, 34 U.S. at 713 (noting that Indian groups’ “rights to its exclusive
enjoyment in their own way and for their own purposes were as much respected, until
they abandoned them, made a cession to the government, or an authorized sale to
individuals”); Seneca Nation of Indians v. New York, 206 F. Supp. 2d 448, 518
(W.D.N.Y. 2002) (“Aboriginal title can either be retained by the tribe, abandoned by the
tribe, or extinguished by the sovereign.”), aff’d, 382 F.3d 245 (2d Cir. 2004); Ala.-
Coushatta Tribe, 2000 WL 1013532, at *43 (“[A]boriginal title endures in perpetuity
until it is appropriately extinguished by the sovereign or abandoned by the tribe.”);
Wichita Indian Tribe v. United States, 696 F.2d 1378, 1382 (Fed. Cir. 1983) (concurring
with Lipan Apache Tribe in that “when a tribunal admits that a tribe holds aboriginal title
to a tract of land, that tribunal cannot dismiss the case without a showing of abandonment
or extinguishment”); Cohen’s Handbook of Federal Indian Law § 15.04, at 1000 (Nell
Jessup Newton et al. eds., 2012) [hereinafter Cohen’s Handbook] (“Until title is
extinguished, a tribe has the collective right to occupy and use its land as it sees fit.”).
Only the sovereign may extinguish aboriginal title, whether “by treaty, by the
sword, by purchase, by the exercise of complete dominion adverse to the right of
occupancy, or otherwise.” Santa Fe, 314 U.S. at 347. Extinguishment may also result
indirectly through “white settlement and use, authorized by the federal government both
statutorily and in fact.” Jemez I, 790 F.3d at 1166 (citing Pueblo of San Ildefonso, 513
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F.2d at 1393). But “[n]o matter the method used, the sovereign’s intent to extinguish
must be clear and unambiguous.” United States v. Abouselman, 976 F.3d 1146, 1156
(10th Cir. 2020).
For abandonment to result in the loss of aboriginal title, it must be voluntary. See
Williams, 242 U.S. at 437–38; Cohen’s Handbook § 1509[1][b], at 1053 (noting that
because aboriginal title is based on evidence of continuous possession, “a small number
of cases have held that original Indian title can be lost through abandonment, but only if
that abandonment is voluntary”).
III. Banco Bonito
The Jemez Pueblo first argues that the district court abused its discretion in ruling
that after 1650 the Jemez Pueblo lost its established aboriginal title to Banco Bonito by
not using the area to the exclusion of other Indian groups. We agree that the district
court’s ruling was legal error and thus an abuse of discretion.
Because the district court premised its ruling on its interpretation of Jemez I, it
helps to review that decision and explain why we disagree with the district court. We use
block quotes because the precise language of Jemez I is important.
In Jemez I, this court proceeded step by step with the government’s arguments.
First, we rejected the government’s position that the 1860 Act extinguished the Jemez
Pueblo’s asserted aboriginal title to the Valles Caldera:
Absent clear and unambiguous intent by Congress to allow extinguishment
of the aboriginal right of occupancy of the Jemez Pueblo, therefore, the grant
of land to the Baca heirs was valid to convey the fee but the Baca heirs took
the title subject to the Jemez Pueblo’s aboriginal title. The government cites
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us to no language in the 1860 Act to show the unambiguous intent of
Congress to extinguish existing Indian title.
790 F.3d at 1162–63 (footnote omitted). But we further noted that the Baca-grant ruling
did not necessarily mean that the Jemez Pueblo still maintained its asserted aboriginal
title:
As we have pointed out, Supreme Court decisions since 1823 make clear that
the Baca grant at issue was subject to the Jemez Pueblo’s aboriginal title—
assuming the Jemez Pueblo maintained aboriginal possession at the time.
Id. at 1163.
Next, we addressed the government’s alternative argument to its Baca-grant
argument:
The government counters that even if aboriginal title was not extinguished,
the grant at least placed a cloud on the Jemez Pueblo’s aboriginal title such
that a claim accrued against the United States in 1860. The government
asserts that the Baca’s use of the land is inconsistent with the Pueblo’s
aboriginal title.
Id. at 1165. We rejected the government’s assertion by noting that “simultaneous
occupancy and use of land pursuant to fee title and aboriginal title could occur because
the nature of Indian occupancy differed significantly from the occupancy of settlers[.]”
Id. For the simultaneous use to defeat the Jemez Pueblo’s aboriginal title, the district
court would have to find that the Baca heirs’ use substantially impaired the Jemez
Pueblo’s right to use and occupancy. See id. at 1168.
We then turned to the remand. In the paragraph most at issue on appeal, we
commented on the two analytical steps remaining in the district court—(1) whether the
Jemez Pueblo could establish aboriginal title to the Valles Caldera by its actual,
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continuous, and exclusive use of the land for a long time and (2) if so, whether the Jemez
Pueblo maintained that aboriginal title until it filed its QTA claim:
Whether the Jemez Pueblo can establish that it exercised its right of
aboriginal occupancy to these lands in 1860 and thereafter is a fact question
to be established on remand, where it will have the opportunity to present
evidence to support its claim. To do so, it must show “‘actual, exclusive, and
continuous use and occupancy ‘for a long time’ of the claimed area.” Native
Vill. of Eyak v. Blank, 688 F.3d 619, 622 (9th Cir. 2012) (quoting [Sac & Fox
Tribe of Indians of Okla. v. United States, 383 F.2d 991, 998 (Ct. Cl. 1967)]).
The government contends the Jemez Pueblo cannot prove “exclusive” use
because the Baca heirs used the land. But the “exclusive” part of the test
meant only that in order to establish aboriginal title, a tribe “must show that
it used and occupied the land to the exclusion of other Indian groups.” Pueblo
of San Ildefonso, 513 F.2d at 1394 (emphasis added); see also Native Village
of Eyak, 688 F.3d at 624 (“Exclusivity is established when a tribe or a group
shows that it used and occupied the land to the exclusion of other Indian
groups.”); Zuni Tribe of N.M. v. United States, 12 Cl. Ct. 607, 608–09, 617–
20 & nn. 13–15 (1987) (holding Zuni exclusively used and occupied lands
where no evidence other tribes used and occupied lands); Wichita Indian
Tribe v. United States, 696 F.2d 1378, 1385 (Fed. Cir. 1983) (“Clearly, the
northern two-thirds of Oklahoma where the Osage also hunted cannot have
been used exclusively by the Wichitas. Lands continuously wandered over
by adverse tribes cannot be claimed by any one of those tribes.”); Caddo
Tribe of Okla. v. United States, 35 Ind. Cl. Comm. 321, 358–60 (1975)
(exclusivity established where Tribe “exercised control over [the claimed
area] and over other Indians who may have ventured therein”).
Id. at 1165–66.
The initial part of the first sentence ties to the immediately preceding discussion
on simultaneous use by the Jemez Pueblo and the Baca heirs. This sentence declares an
obvious point—that the Jemez Pueblo’s QTA claim would fail if the Jemez Pueblo had
not actually used its right to occupancy continuously from 1860 through its filing of the
QTA claim in 2000. And this sentence notes that the district court must resolve this fact
question on remand. If the Jemez Pueblo ceased using the claimed lands before 2000, it
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could not even show continuous, simultaneous use with the Baca heirs. Its abandonment
of the lands would end its claim to aboriginal title altogether. See Cohen’s Handbook
§ 1509[1][b], at 1053 (aboriginal title may be lost in the absence of continuous
possession).
The latter part of the first sentence notes that on remand the Jemez Pueblo “will
have the opportunity to present evidence to support its claim.” Pueblo, 790 F.3d at 1165.
Here lies the fork in the interpretive roadway. In deciding what “its claim” means, we
must remember that in its complaint, the Jemez Pueblo pleaded a QTA claim. The Jemez
Pueblo needed to support that claim in district court. In the upcoming proceeding after
remand, the Jemez Pueblo would need to show two things to support its QTA claim:
(1) that it once held aboriginal title to Banco Bonito11 and (2) that it continued to hold it.
We began the second sentence, “To do so.” To do what? To present evidence to
support its QTA claim. The Jemez Pueblo would do that by presenting evidence to
support the two requirements above. As Jemez I says next, the Jemez Pueblo would need
to “show actual, exclusive, and continuous use and occupancy for a long time of the
claimed area.” Id. (internal quotations and citation omitted). Rejecting a government
argument, Jemez I cemented that the “exclusive” use and occupancy part of the test
applied to establishing aboriginal title, not maintaining it: “[T]he ‘exclusive’ part of the
test meant only that in order to establish aboriginal title, a tribe ‘must show that it used
11
We expressed no opinion on whether on remand the Jemez Pueblo could
establish aboriginal title to the Valles Caldera. Jemez I, 790 F.3d at 1163 n.15.
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and occupied the land to the exclusion of other Indian groups.’” Id. at 1166 (citation
omitted; first emphasis added). Reinforcing this point, Jemez I cites a string of cases
applying the test for establishing aboriginal title.12
The district court never got to the interpretive fork of Jemez I—its use of the term
“its claim.” Instead, rearranging phrases from Jemez I, it analyzed whether the Jemez
Pueblo had maintained “‘actual[,] exclusive, and continuous use and occupancy for a
long time of the claimed area,’ ‘in 1860 and thereafter.’” App. vol. 6, at 185 (emphasis
added) (quoting Jemez I, 790 F.3d at 1165). The district court never acknowledged that
the Jemez Pueblo had two required showings before the Jemez Pueblo could satisfy the
title-holding requirement of its QTA claim. The district court apparently believed that the
Jemez Pueblo couldn’t legally exercise its right of aboriginal occupancy without
reestablishing its already-established aboriginal title.13 This rewrites Jemez I, which did
not adopt a use-it-exclusively-or-lose-it-entirely rule.
Had Jemez I erected such a stringent hurdle for the Jemez Pueblo and future Indian
12
And in considering whether the Jemez Pueblo could establish aboriginal
title, we rejected the government’s view that conduct of the Baca heirs would matter.
See Jemez I, 790 F.3d at 1166–67 (“The government contends the Jemez Pueblo
cannot prove ‘exclusive’ use because the Baca heirs used the land.”). By then, we had
already rejected the government’s argument that simultaneous use between the Jemez
Pueblo and the Baca heirs “is inconsistent with the Pueblo’s aboriginal title.” Id. at
1165.
13
As mentioned, that would require the Jemez Pueblo to show that it had the
right or power to expel other Indian groups wandering onto land for which it had
already established aboriginal title. Elsewhere, the court voiced disapproval of a
power-to-expel requirement:
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tribe litigants to overcome, it would have upended most aboriginal titles. But it did not.
After Jemez I, as before it, a tribe seeking to quiet title based on asserted aboriginal title
must meet two requirements. First, the tribe must establish aboriginal title by showing
actual, exclusive, and continuous use and occupancy for a long time. Native Vill. of Eyak,
688 F.3d at 622; see also Abouselman, 976 F.3d at 1156. Second, the tribe must show
that after establishment it did not lose its aboriginal title either through (1)
extinguishment by the sovereign or (2) voluntary abandonment. See Wichita, 696 F.2d at
1382 (“[W]hen a tribunal admits that a tribe holds aboriginal title to a tract of land, that
tribunal cannot dismiss the case without a showing of abandonment or
extinguishment[.]”); Abouselman, 976 F.3d at 1156 (“Once established . . . aboriginal
title remains until it is extinguished, and as against any but the sovereign, original Indian
If it were writing on a clean slate, the Court believes that Tribes and Pueblos
should not have to demonstrate that they had the power to exclude other
completely hypothetical Indian groups that wandered onto their land. This
requirement would have allowed the United States to seize the land of any
isolated Tribe if the Tribe was relatively weak, thereby reserving aboriginal
title only to relatively powerful tribes. Requiring proof of the power to
exclude is at odds with foundational aboriginal title cases, which
unreservedly protect lands Indian groups exclusively occupy. See Cherokee
Nation v. Georgia, [30 U.S. 1, 32 (1831)] (stating that “the Indians are
acknowledged to have an unquestionable, and heretofore unquestioned, right
to the land they occupy, until that right shall be extinguished by a voluntary
cession to our government”); Johnson v. M’Intosh, 21 U.S. at 574 (stating
that aboriginal title makes a Tribe’s members “the rightful occupants of the
soil, with a legal as well as just claim to retain possession of it”).
App. vol. 6, at 173.
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title was accorded the protection of complete ownership.” (cleaned up)).14
Though aboriginal title grants a tribe only “a right of occupancy,” “not a property
right,” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955), the Supreme
Court has repeatedly stressed that “[t]he right of perpetual and exclusive occupancy of
the land is not less valuable than full title in fee.” Shoshone Tribe, 304 U.S. at 116(emphasis added); see also Mitchel, 34 U.S. at 746 (affirming the notion that aboriginal
title is “as sacred as the fee simple of the whites”). A continuing-exclusivity requirement
would conflict with this principle, as it would almost certainly keep a tribe from
establishing aboriginal title into the modern era. The options available—violence against
other trespassing tribes (likely on land owned by the United States or white settlers) or
filing a civil suit against a trespassing tribe—would be unrealistic for obvious reasons.15
The government argues that the Jemez Pueblo could meet its proposed exclusive-
use requirement from 1650 to 2000 “by dominating other tribes that enter the claimed
area without actually attacking them.” Response Br. 34. This so-called dominant-use
14
The district court and the Jemez Pueblo raise the possibility that a tribe loses
aboriginal title if another tribe conquers it. That may be so, but as such conquering
has not been alleged here, we need not discuss it.
15
We note that until the middle of the twentieth century, “few Indian tribes
maintained any semblance of a formal court system.” Oliphant v. Suquamish Indian
Tribe, 435 U.S. 191, 197 (1978), superseded by statute on other grounds as stated in
United States v. Lara, 541 U.S. 193, 207 (2004). And though the Supreme Court held
in 1850 “[t]hat an action of ejectment could be maintained on an Indian right to
occupancy and use,” that case and those that affirmed its sentiment were referring to
a tribe’s right to sue trespassing white settlers, not other Indians. Marsh v. Brooks, 49
U.S. (8 How.) 223, 232 (1850). Further, even if the courts had been open to the
Jemez Pueblo when its use allegedly became non-exclusive as to other tribes, it’s far
from clear that the courts would have entertained suits from them.
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exception to the exclusivity requirement recognizes that when another tribe uses the
claimed area in common with the claimant tribe, proof of the claimant tribe’s ability to
exclude other tribes from the area preserves its exclusive use of the land even if not
exercised. See United States v. Seminole Indians of Fla., 180 Ct. Cl. 375, 383–86 (1967)
(holding that the Seminoles demonstrated their domination of a claimed area by “simply
absorbing . . . into their own ranks” the “scattered groupings” of other tribes). But the
government itself admits that this exception is subject to a high standard and rarely
succeeds. And, in any event, the government fails to cite a case applying the dominant-
use exception after a tribe long since established aboriginal title.
Moreover, it strikes us as altogether unjust for the date of the alleged government
interference to serve as a triggering point for a required re-establishment of aboriginal
title—or any date after initial establishment for that matter. See Santa Fe, 314 U.S. at 347
(explaining that aboriginal title preexists the formation of the United States and requires
no affirmative act of the sovereign for its continued viability). A simple hypothetical
illustrates why. Let’s say that Tribe X established aboriginal title by proving actual,
exclusive, and continuous use and occupancy of a tract of land between 1700 and 1900.
Between 1900 and 1902, Tribe X continued to use the land, but Tribe Z began to traverse
over the land—peacefully, but without Tribe X’s permission or knowledge. In 1902, the
United States purchased the land from private owners to create a national park without
extinguishing Tribe X’s claimed aboriginal title. Under a continuing-exclusivity-of-use
rule, Tribe Z’s wanderings between 1900 and 1902 would deprive Tribe X of its
aboriginal title absent constant monitoring of its borders and the use of violence to expel
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Tribe Z intruders.
The government cites a passage in Jemez I rejecting its position that white-settler
activity plays a role in assessing the establishment of aboriginal title. It now seeks to rely
on three cases we cited there as having evaluated an “exclusive-use requirement”
continuing past the tribe’s establishment of aboriginal title and through the date of the
alleged government interference. Response Br. 30.16 But none of these out-of-circuit
cases persuade us of any such requirement.
The first case is Pueblo of San Ildefonso, an appeal heard by the United States
Court of Claims from the ICC. 513 F.2d 1383. The primary issue on appeal was when the
government extinguished established aboriginal title. Id. at 1386–92. The secondary issue
was whether two tribes could jointly occupy an area of land and still meet the exclusive-
use requirement for the establishment of aboriginal title. Id. at 1392–96. On the second
issue, the court answered affirmatively, noting that the two claimant tribes had “jointly
used and occupied the disputed 8,600 acre tract for a long period of time.” Id. at 1395.
Thus, it concluded that the tribes had “joint aboriginal title.” Id. This case is ultimately
not germane to the Jemez Pueblo’s appeal. That is because the court never analyzed when
16
The government cites three other cases in support of this requirement, but
none of them discuss exclusive use against other Indian groups and are thus
inapposite. See United States v. Alcea Band of Tillamooks, 329 U.S. 40, 44 (1946)
(explaining that the date of extinguishment is “the date the Indians lose the land
through treaty or otherwise”); United States v. Dann, 873 F.2d 1189, 1199–1200 (9th
Cir. 1989) (noting that the Indian tribe must continue to occupy the claimed area until
the date of extinguishment); Sac & Fox, 383 F.2d at 998–99 (noting that an Indian
group may initially establish aboriginal title at any point before the date of
extinguishment).
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aboriginal title was first established, or whether that title could be lost post-establishment
through the trespass of other tribes.
Next, the government cites Zuni Tribe of New Mexico v. United States, 12 Cl. Ct.
607 (1987). In Zuni Tribe, the United States Claims Court determined that the Zuni had
established aboriginal title “from time immemorial beginning as early as 5,000 B.C. (at
the latest) and continuing through and including at least 1846.” Id. at 641. The Zuni
sought compensation for “takings” committed by the United States and other tribes
between 1846 and 1939. In the present appeal, the government emphasizes (1) that the
Zuni Tribe court evaluated whether other tribes had used the claimed area before the date
of the asserted “takings” and (2) that the court concluded that the presence of other
Indians on the lands did not “detract[] from the exclusivity of the Zuni use and
ownership.” Id. We acknowledge that the case supports the government’s position. But in
conducting a post-establishment exclusive-use analysis, we note that the Zuni Tribe court
put the Zuni’s claim to aboriginal title to a far greater test than the Supreme Court has.
We have not and will not.17
Last, the government cites Wichita, a case from the Federal Circuit. 696 F.2d
1378. In Wichita, the United States Claims Court determined that the Wichita Tribe had
17
Somewhat relatedly, the government briefly argues that if “first use prevails
unless the opposing party proves complete abandonment or extinguishment, Zia
[another tribe] would hold aboriginal title to Banco Bonito as its use preceded
Jemez’s use, continued through 2000, and no sovereign extinguished its aboriginal
title.” Resp. Br. 32 (internal citation omitted). But this isn’t about “first use.” As the
district court noted when it rejected this argument, “whether a Tribe was the first
occupant of certain land is ultimately irrelevant to whether the Tribe established
aboriginal title to the land.” App. vol. 6, at 186 n.85.
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established aboriginal title to land in Oklahoma. But it ultimately “concluded that a
general abandonment by the Wichitas of perhaps most of the claimed lands in Oklahoma
effectively prevented them from recovering for the loss of any lands there.” Id. at 1380.
The Federal Circuit deemed the Claims Court’s abandonment analysis incomplete. Id.Thus, it remanded the case for a more thorough analysis of abandonment and an exact
“determination of the extent of aboriginal title to lands in Texas and Oklahoma.” Id. at
1386.
The government relies on several portions of Wichita’s “Abandonment” section in
which the Federal Circuit may suggest, without supporting authority, that a tribe can lose
aboriginal title by abandonment or extinguishment if another tribe establishes settlements
on the claimed land or if the claimant tribe is “forced to share portions of [the] area with
others.” Id. at 1382–83. But as already explained in depth, another tribe’s actions are
irrelevant to the abandonment and extinguishment analyses. They figure only in the
establishment of aboriginal title. Thus Wichita—and its imprecise language—does not
aid the government.
In sum, because the district court found (1) that the Jemez Pueblo established
aboriginal title to Banco Bonito by 1650 and (2) that its aboriginal title hasn’t been
abandoned by the Jemez Pueblo or extinguished by the United States, the Jemez Pueblo
continues to hold aboriginal title to Banco Bonito.18 See App. vol. 6, at 183 (“If Jemez
18
In its reply brief, the Jemez Pueblo argues that in holding that it lost title to
Banco Bonito, the district court “violates the Indian Non-Intercourse Act, 25 U.S.C.
§ 177, which prohibits any ‘conveyance of lands, or any title or claim thereto . . .
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Pueblo only had to show that it possessed aboriginal title at one point and then never
abandoned the land or had it extinguished, the Court would conclude that Jemez Pueblo
has established aboriginal title to Banco Bonito.”).
In reading Jemez I otherwise, the district court abused its discretion. We therefore
reverse the district court on this issue and remand with instructions to enter judgment
consistent with this opinion.
IV. Paramount Shrine Lands
We move next to the Jemez Pueblo’s argument that the district court abused its
discretion in denying its Rule 59(e) motion for reconsideration as to its claim to the
Paramount Shrine Lands. This argument is meritless.
“Grounds warranting a motion to reconsider include (1) an intervening change in
the controlling law, (2) new evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000). So a motion for reconsideration is properly granted only when
“the court has misapprehended the facts, a party’s position, or the controlling law.” Id.“But once the district court enters judgment, the public gains a strong interest in
protecting the finality of judgments.” Nelson, 921 F.3d at 929. Because of that strong
interest, we have circumscribed when district courts may grant motions for
reconsideration. We’ve repeatedly said that these motions are “not appropriate to revisit
unless the same be made by treaty or convention entered into pursuant to the
Constitution.’” Reply Br. 12. But the Jemez Pueblo failed to make this argument in
its opening brief, so we decline to consider it. See United States v. Mullikin, 758 F.3d
1209, 1210 n.2 (10th Cir. 2014).
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issues already addressed or advance arguments that could have been raised in prior
briefing.” Id. (quoting Servants of Paraclete, 204 F.3d at 1012). The Supreme Court has
emphasized the same point: “Rule 59(e) permits a court to alter or amend a judgment, but
it ‘may not be used to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.’” Exxon Shipping Co. v. Baker,
554 U.S. 471, 485 n.5 (2008) (citation omitted).
The district court characterized the Jemez Pueblo’s claim to the subarea of the
Paramount Shrine Lands (as well as its claim to the Redondo Meadows and Valle San
Antonio) as “arguments that could have been but were not raised” before the court issued
judgment as to all of the Valles Caldera. App. vol. 6, at 163 (quoting Banister v. Davis,
140 S. Ct. 1698, 1708 (2020)). The district court noted that in the seven years of litigating
its claim pre-final judgment, the Jemez Pueblo had never argued its entitlement “to each
discrete cultural polygon in the Valles Caldera and instead premised its aboriginal title
claims to the Valles Caldera as a whole.” Id.The court rejected the Jemez Pueblo’s contention that through its complaint, its
interrogatory answers, and the depositions the government took of Jemez witnesses, the
government was on notice of its claims to the subareas and thus tried them by consent. In
the district court’s view, the complaint’s references to the subareas were too general to
provide notice, particularly as the complaint was framed as a challenge to the entire
Valles Caldera. As for the Jemez Pueblo’s interrogatory answers, the district court
acknowledged that they reference the geographic areas that the Jemez Pueblo sought in
its motion for reconsideration. But the court found that insufficient for notice. That is
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because the answers “respond to a limited question within the dispute that the Complaint
frames” and do not suggest that the Jemez Pueblo would later seek title to certain
subareas. Id. at 167. And as for the depositions, the court determined that they failed to
provide notice because no deposition cited by the Jemez Pueblo included discussion of
the subareas at issue.19
The district court further noted that Federal Rule of Civil Procedure 15(b)(2) did
not permit the reconsideration of the Jemez Pueblo’s claim to the Paramount Shrine
Lands. Rule 15(b)(2) provides that issues not raised by the pleadings may be tried by the
parties’ express or implied consent. But the district court explained that Rule 15(b)(2)
doesn’t allow a plaintiff to reframe its claim after the fact. And to allow the Jemez Pueblo
to do that in this case would prejudice the United States, which had structured its
opposition based on the pleadings that sought title to the entire Valles Caldera.
We agree with the district court’s thorough analysis on this issue. The Jemez
Pueblo centered its claim and its request for relief in its complaint on the entire Valles
Caldera—not discrete subparts. App. vol. 1, at 71 (“The aboriginal Indian title and right
of possession, use and occupancy of the lands of the Valles Caldera National Preserve
remain in Jemez Pueblo.”); id. at 71–72 (“Wherefore, Plaintiff prays that the court grant
19
The Jemez Pueblo contends that the district court erroneously limited its
analysis of the notice it gave the government to its prayer for relief in its complaint and
required the Jemez Pueblo to allege “precise subareas within the great area.” Opening Br.
36–37. But as shown by our discussion, the district court did no such thing. Rather, it
considered whether the Jemez Pueblo had provided notice of this claim in its complaint
or during discovery. In addition, we note that the district court did conclude that the
Jemez Pueblo provided notice to the government of its claim to Banco Bonito in its
motion for partial summary judgment.
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relief as follows: 1. Enter a judgment . . . that Plaintiff has the exclusive right to use,
occupy and possess the lands of the Valles Caldera National Preserve pursuant to its
continuing aboriginal Indian title to such lands.”). And though the Jemez Pueblo used its
motion for summary judgment as an opportunity to seek title specifically to Banco Bonito
and Redondo Mountain as a whole, for unknown reasons it did not include the specific
features of the Paramount Shrine Lands in that request. Based on the Jemez Pueblo’s
Complaint and how the pretrial-motion practice transpired, the district court correctly
considered and adjudicated the Jemez Pueblo’s claim to the entire Valles Caldera—
nothing else.
In response to our questions at oral argument, the Jemez Pueblo submitted a Rule
28(j) Letter with citations in support of its assertion that the government had notice of its
claim to the Paramount Shrine Lands pretrial. After independently reviewing those
citations, we remain unconvinced that the district court’s conclusion that the government
lacked appropriate notice of the Jemez Pueblo’s claim to the Paramount Shrine Lands
was “arbitrary, capricious, whimsical, or manifestly unreasonable.” Eaton, 931 F.3d at
1027. The same is true of the district court’s conclusion that the government would be
prejudiced if after many years of discovery and litigation aimed at challenging the Jemez
Pueblo’s claim to the entire Valles Caldera, it would be forced to renew, redouble, and
refocus its discovery efforts for a distinct cause of action. We thus affirm the district
31
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court’s denial of the Jemez Pueblo’s motion for reconsideration of its title to the
Paramount Shrine Lands.
We also briefly address one other concern related to the scope of this issue. In
a footnote in its reply brief, the Jemez Pueblo argues that the government incorrectly
frames the Jemez Pueblo’s appeal of this issue as one solely concerning the district
court’s denial of its Rule 59(e) motion for reconsideration. Reply Br. 14 n.9. The
Jemez Pueblo insists that this is an incorrect framing because it appealed both the
district court’s post-trial order and its order on the Jemez Pueblo’s motion for
reconsideration, “as both wrongly failed to award a smaller portion of the original
property claim as discussed herein.” Id.The Jemez Pueblo did indeed timely appeal both orders. But the Jemez
Pueblo’s opening brief does not substantively challenge the district court’s post-trial
order. This is shown by its opening paragraph for its discussion of this issue, which
summarizes the Jemez Pueblo’s challenge as one to: (1) the district court’s ruling in
its order on the Jemez Pueblo’s motion for reconsideration that the Jemez Pueblo
failed to provide notice to the government of its claim to the Paramount Shrine
Lands; and (2) the district court’s ruling in its order on the Jemez Pueblo’s motion
for reconsideration that the Jemez Pueblo must prove Indian title to lands
surrounding the Paramount Shrine Lands. Moreover, on this issue, the Jemez Pueblo
cites only the post-trial order when listing undisputed factual findings. In light of
that, we restrict our review of this issue to the district court’s order on the Jemez
Pueblo’s motion for reconsideration. See Bronson v. Swensen, 500 F.3d 1099, 1104
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(10th Cir. 2007) (“Consistent with [Federal Rule of Appellate Procedure
28(a)(9)(A)], we routinely have declined to consider arguments that are not raised, or
are inadequately presented, in an appellant’s opening brief.”); Verlo v. Martinez, 820
F.3d 1113, 1127 (10th Cir. 2016) (“A party’s offhand reference to an issue in a
footnote, without citation to legal authority or reasoned argument, is insufficient to
present the issue for our consideration.”).
In any case, to the extent that the Jemez Pueblo argues that the district court
erred by failing to award the Jemez Pueblo title to the Paramount Shrine Lands in its
initial post-trial order, that argument fails for the reasons discussed. Namely, we do
not fault the district court for adjudicating the Jemez Pueblo’s claim as presented
before and at trial: as one to the entire Valles Caldera. We express no opinion on
whether to establish title to features of the Paramount Shrine Lands, the Jemez
Pueblo had to show that it had aboriginal title “to the surrounding land.” App. vol. 6,
at 172.
CONCLUSION
For these reasons, we conclude that the Jemez Pueblo has continuing aboriginal
title to Banco Bonito. Thus, we reverse in part the denial of the Jemez Pueblo’s motion
for reconsideration, and we vacate in part and remand with instructions to the district
court to enter judgment consistent with this opinion. We affirm as to all other issues
raised.
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20-2145, Pueblo of Jemez v. United States
MORITZ, Circuit Judge, concurring in part and dissenting in part.
In this quiet-title appeal, the Pueblo of Jemez (Jemez Pueblo) asserts
aboriginal title to two areas within the Valles Caldera National Preserve (the
Preserve) in New Mexico: (1) the Paramount Shrine Lands and (2) Banco Bonito. I
agree with the majority that the district court properly rejected the claim to the
Paramount Shrine Lands on procedural grounds because Jemez Pueblo failed to raise
this narrower and more specific claim until more than seven years after commencing
this action, and then only after losing at trial on its much broader claim to the entire
Preserve. But I diverge from the majority because I would reject Jemez Pueblo’s
assertion of aboriginal title to Banco Bonito. I would do so based on the simple,
undisputed, and dispositive fact that despite Jemez Pueblo’s exclusive and continuous
use of the area from approximately 1300 to 1650, other Indian tribes have used
Banco Bonito for the more than 350 years since that time and up until 2000, when the
United States allegedly began interfering with Jemez Pueblo’s aboriginal right.
Because the majority’s contrary analysis—which relies upon a snapshot-in-time
approach to aboriginal title—cannot be squared with precedent or basic aboriginal-
title principles and could create untold new claims related to federal lands once
occupied by Indian tribes, I respectfully dissent.
Analysis
Jemez Pueblo asserts that since 2000, when Congress created the Preserve, the
government has been interfering with Jemez Pueblo’s aboriginal title to Banco
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Bonito. Jemez Pueblo thus seeks to quiet title to Banco Bonito under the Quiet Title
Act (QTA), which requires proof that Jemez Pueblo possessed aboriginal title to the
disputed area when the government’s alleged interference began. See Match-E-Be-
Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012)
(describing QTA claim as “a suit by a plaintiff asserting a ‘right, title, or interest’ in
real property that conflicts with a ‘right, title, or interest’ the United States claims”
(quoting 28 U.S.C. § 2409a(d))). Everyone agrees that to prove such possession,
Jemez Pueblo must show that it actually, exclusively, and continuously used Banco
Bonito “for a long time.” Pueblo of Jemez v. United States, 790 F.3d 1143, 1165
(10th Cir. 2015) (Jemez I) (quoting Native Vill. of Eyak v. Blank, 688 F.3d 619, 622
(9th Cir. 2012)). No one disputes, moreover, that Jemez Pueblo’s claim turns on
exclusivity—whether Jemez Pueblo “used and occupied the land to the exclusion of
other Indian groups.” Id. at 1165–66 (emphasis omitted) (quoting United States v.
Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct. Cl. 1975)). And crucially, Jemez
Pueblo does not seriously dispute the district court’s finding that Jemez Pueblo’s use
has not been exclusive for the last 350-plus years: Although it was the only tribe
using Banco Bonito from around 1300 to 1650, other tribes have also used the area in
the centuries that followed. The majority and I part ways on whether this undisputed
factual finding makes a legal difference to Jemez Pueblo’s assertion of aboriginal
title. As explained below, caselaw and basic aboriginal-title principles convince me
that it does—Jemez Pueblo must prove that its exclusive use extended to the date of
the alleged interference.
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At the outset, contrary to the majority’s view, both Jemez I and the cases it
cites support the conclusion that a tribe’s use must remain exclusive through the date
of alleged interference. To be sure, our decision in Jemez I did not specifically
address this aspect of exclusivity. Indeed, we assumed for purposes of resolving the
appeal that Jemez Pueblo could prove exclusivity (as well as the other necessary
elements) and left for remand the “fact question” of whether Jemez Pueblo could
establish aboriginal title. 790 F.3d at 1165; see also id. at 1163 n.15 (“We express no
opinion on whether, on remand, the Jemez Pueblo can factually establish aboriginal
possession to the land it claims.”). Given this assumption, anything Jemez I said
about the nature of the exclusive-possession requirement is dicta. See United States v.
Verdugo-Urquidez, 494 U.S. 259, 272 (1990) (explaining that when courts resolve
legal issues by “assuming without deciding the validity of antecedent propositions,
. . . such assumptions . . . are not binding in future cases that directly raise the
question” (citations omitted)). Nevertheless, as the district court correctly
ascertained, several statements from our opinion at least suggest that Jemez Pueblo
cannot assert aboriginal title to Banco Bonito unless its use remained exclusive up
until the government’s alleged interference. In particular, we stated that Jemez
Pueblo would need to prove on remand that it “maintained aboriginal possession”
and “exercised its right of aboriginal occupancy to these lands in 1860 and
thereafter.”1 Jemez I, 790 F.3d at 1163, 1165 (emphases added); see also id. at 1147
1
The quote above refers to 1860 because that is the year Congress conveyed
fee title to the land at issue to private owners, a move the government argued had
3
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(“On remand, . . . Jemez Pueblo will have to prove that it had, and still has,
aboriginal title to the land at issue . . . .” (emphasis added)).
These references to maintaining aboriginal title are consistent with Jemez I’s
cited caselaw, which requires actual, exclusive, and continuous use and occupancy as
of the relevant date of alleged interference.2 The court in Pueblo of San Ildefonso, for
example, considered whether a tribe had aboriginal title “at the time the lands [in
question] were included in” an executive order extinguishing such title. 513 F.2d at
1395; see also id. at 1394–95 (upholding finding that tribe’s use continued “from at
least 1770 down to June 13, 1902,” the date on which President Theodore Roosevelt
signed executive order extinguishing title).3 In Zuni Tribe of New Mexico v. United
States, the court similarly analyzed the necessary elements—including exclusivity—
extinguished Jemez Pueblo’s aboriginal title and thus triggered the Indian Claims
Commission Act’s five-year statute of limitations. See 790 F.3d at 1147; Act of Aug.
13, 1946, ch. 959, Pub. L. No. 79-726, § 12, 60 Stat. 1049, 1052 (1946) (allowing
tribes to bring claims against United States that accrued before 1946 so long as tribes
brought such claims within five years of 1946).
2
These cases mostly come from a (now-defunct) claims court tasked with
adjudicating aboriginal-title claims and from the Federal Circuit, the court designated
to hear appeals from the claims court. Although these decisions are nonbinding, our
prior decision heavily relied on them, and the parties do not question their
applicability here. See Jemez I, 790 F.3d at 1165–68, 1170–71.
3
Jemez Pueblo downplays Pueblo of San Ildefonso because the court made no
“determination of when aboriginal title was first established.” Rep. Br. 4 n.3. But that
purported distinction is immaterial. What matters is that the court assessed the
elements of aboriginal title, including exclusive use, over the entire historical
timeline, up to the point of government interference. See Pueblo of San Ildefonso,
513 F.2d at 1394 (explaining that tribe must show those elements were met “‘for a
long time’ prior to the loss of the land” (emphasis added) (quoting Confederated
Tribes of the Warm Springs Rsrv. of Or. v. United States, 177 Ct. Cl. 184, 194
(1966))).
4
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from when the claimant tribe’s use began (around 5,000 B.C.) and “continuing
through” 1846, the year the alleged interference began. 12 Cl. Ct. 607, 641 (1987);
see also id. at 617–41 (making exclusivity findings for each historical time period
leading up to alleged 1846 date of interference; finding that by that date, claimant
tribe “continued to have exclusive use and occupation of the claim area”).4 And in
Wichita Indian Tribe v. United States, the Federal Circuit recognized that a lower
court needed to assess whether a claimant tribe that used an area exclusively for an
initial period had also continued to do so because evidence of adverse use from other
tribes in later years would mean that the claimant tribe “failed to retain aboriginal
title” until the government’s interference took place. 696 F.2d 1378, 1382 (Fed. Cir.
1983); see also id. at 1385 (explaining that claimant tribe would lack aboriginal title
to areas it “shared” with other tribes, as “[l]ands continuously wandered over by
adverse tribes cannot be claimed by any one of th[em]”; recognizing that other tribes’
use could “disrupt[]” or “impinge[] on” claimant tribe’s “exclusivity of use”).5 In
4
Jemez Pueblo criticizes Zuni for finding that aboriginal title had been “taken”
based on circumstances that, in its view, do not satisfy the Supreme Court’s
requirements for extinguishing aboriginal title. Even if that’s true, however, the point
remains that the court assessed exclusivity through the dates of the allegedly
interfering acts. That Zuni may have erred in treating some of those acts as rising to
the level of extinguishment does not detract from the court’s proper focus on whether
the tribe’s use remained exclusive up to the date the interference began.
5
Wichita Tribe arguably framed this conclusion in terms of adverse tribal use
resulting in the loss of aboriginal title. See 696 F.2d at 1385. But whether framed as a
failure to acquire or a failure to retain, the result is the same: Jemez Pueblo lacks
aboriginal title to Banco Bonito because its use was not exclusive at any time during
the 350 years leading up to the government’s interference. Responding to the latter
framing, the majority concludes that Jemez Pueblo could lose aboriginal title only
through sovereign extinguishment or voluntary abandonment. But the cases it offers
5
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short, these cases suggest that a tribe’s aboriginal use must be exclusive “‘for a long
time’ prior to” the government’s interference. Pueblo of San Ildefonso, 513 F.2d at
1394 (quoting Confederated Tribes of Warm Springs Rsrv., 177 Ct. Cl. at 194).
Exclusive use for a long time at some other point in history is insufficient.
In my view, therefore, the majority opinion errs when it presumes that the
phrase “for a long time” is untethered to any particular event. It’s good enough, the
majority reasons, for a tribe to simply show that it had exclusive and continuous use
to support that view do not provide an exhaustive list of how loss can occur; each one
involved an extinguishment or abandonment issue and thus had no reason to consider
whether other circumstances could also result in loss. See, e.g., Lipan Apache Tribe
v. United States, 180 Ct. Cl. 487, 491–92 (1967) (holding that lack of sovereign
recognition did not extinguish aboriginal title); Alabama-Coushatta Tribe of Tex. v.
United States, No. 3-83, 2000 WL 1013532, at *13, *43–53 (Fed. Cl. June 19, 2000)
(considering “whether aboriginal title was extinguished”); Mitchel v. United States,
34 U.S. (9 Pet.) 711, 746–48 (1835) (determining that extinguishment occurred when
Spain ratified tribe’s sale of land to private owners); Williams v. City of Chicago, 242
U.S. 434, 437–38 (1917) (holding that tribe abandoned aboriginal title to lands it had
not occupied “for more than a half century”); Oneida Indian Nation of N.Y. v. Cnty.
of Oneida, 414 U.S. 661, 667 (1974) (noting general aboriginal-title principles when
explaining why tribe’s claim arose under federal law for purposes of subject-matter
jurisdiction); United States v. Abouselman, 976 F.3d 1146, 1156 (10th Cir. 2020)
(addressing “whether [aboriginal water] rights were extinguished”); Seneca Nation of
Indians v. New York, 206 F. Supp. 2d 448, 518 (W.D.N.Y. 2002) (discussing effect of
undisputed extinguishment by treaty). Indeed, even Jemez Pueblo recognizes that
circumstances besides extinguishment and abandonment may trigger loss: When
moving for reconsideration below, it acknowledged that at least some form of
adverse tribal use (namely, “conquest . . . by another tribe”) may also result in loss.
App. vol. 5, 875. And Wichita Tribe makes clear that other forms of nonexclusive
use—such as “shar[ing]” an area “without the[] consent” of the claimant tribe—have
the same effect. See 696 F.2d at 1381; see also id. at 1385 (clarifying that other
tribes’ “continuous[] wander[ing]” through claimant tribe’s land could “disrupt[] the
[claimant tribe’s] exclusivity of use”). Thus, I reject the majority’s premise that any
aboriginal title Jemez Pueblo may have obtained could be lost only by
extinguishment or abandonment.
6
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and occupancy of the claimed area “for a long time” at any time dating back to time
immemorial. Here, that period of time was from 1300 to 1650, when the district court
found that the Jemez Pueblo had actual, exclusive, and continuous use and occupancy
of Banco Bonito. According to the majority, the district court should have stopped
there and not considered the undisputed evidence that, for the next 350 years, Jemez
Pueblo no longer had exclusive possession because other tribes roamed through and
used the area just as Jemez Pueblo did. But to my knowledge, no court has ever
held—and the majority cites no case holding—that the period of exclusive and
continuous use and occupancy necessary to show aboriginal title need not be tethered
to the relevant claim. Here, the Jemez Pueblo seeks to quiet title to Banco Bonito
under the QTA based on Congress’ creation of the Preserve in 2000. Thus, it is
elemental that Pueblo Jemez must show, and the court must assess, exclusivity of the
claimed area for a long time prior to 2000 when the alleged interference began—not
for a long time prior to 1650.6
6
Contrary to the majority’s suggestion, there is nothing “unjust” about
considering the entire historical picture rather than a snapshot of it. Maj. Op. 24. The
majority’s hypothetical about Tribes X and Z illustrates why. The hypothetical
supposes that after Tribe X acquires aboriginal title to a tract by using it exclusively
for 200 years, Tribe Z adversely uses the tract for just two years. No injustice results
from that scenario because under the cases cited in Jemez I and discussed above,
Tribe Z’s two years of adverse use—unlike the centuries of adverse use in Banco
Bonito that the district court found here—would not disrupt the exclusivity of Tribe
X’s use. See Wichita Tribe, 696 F.2d at 1384–85 (rejecting conclusion that adverse
tribe’s “sporadic attacks” disrupted claimant tribe’s use; noting instead that “[l]ands
continuously wandered over by adverse tribes” may disrupt aboriginal title (emphasis
added)); Zuni Tribe, 12 Cl. Ct. at 641 (rejecting argument that other tribes’ use
“detract[ed] from the exclusivity of the [claimant tribe’s] use” in part because such
adverse use was “for brief . . . periods of time”).
7
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Moreover, untethering the exclusivity analysis from the relevant time period,
as the majority does, offends basic aboriginal-title principles. Courts have long
recognized that “in the course of years, and especially during the early years of the
United States, the use and occupancy of land by Indian tribes changed continuously.”
Sac & Fox Tribe of Indians of Okl. v. United States, 383 F.2d 991, 998 (Ct. Cl.
1967); see also id. (explaining that this change resulted from new tribes emerging
and old ones disappearing or moving, from tribes exchanging land, and from tribes
acquiring land from each other by conquest). Nowhere is this historical reality clearer
than in the Valles Caldera. As the district court extensively discussed, this area is
surrounded by more than a dozen tribes and situated near three others, all of which
have used or occupied the area at various times since the early 1200s. And
significantly, after 1650—the date on which the majority fixes its analysis—these
tribes’ use of the Valles Caldera fundamentally changed. Most relevant here, after
that date, the members of Jemez Pueblo were no longer the sole occupants and users
of Banco Bonito: Jemez Pueblo’s farming of the area largely or entirely ceased, and
other tribes traveled through the area to reach other parts of the Valles Caldera.
What’s more, Jemez Pueblo’s ability to control other tribes’ use was significantly if
not entirely diminished by its forced removal to a location 15 miles south of Banco
Bonito. The majority treats these historical realities as irrelevant, instead selectively
focusing on a snapshot of events hundreds of years earlier. But by simply ignoring
the “considerable change” in the Valles Caldera over many centuries and effectively
“freez[ing]” Jemez Pueblo’s aboriginal use as of 1650, the majority fails to apply a
8
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fundamental concept of aboriginal law—that over the course of years, use and
occupancy by Indian tribes changes frequently. Sac & Fox, 383 F.2d at 998–99.
Finally, the majority’s snapshot in-time approach to exclusivity could subject
the government to countless new aboriginal-title claims. Utilizing that approach, for
example, Zia Pueblo would have had an equally strong quiet-title claim here based on
its use of the Valles Caldera (including Banco Bonito) before the Jemez Pueblo ever
arrived in the area. After all, the district court found that Zia Pueblo’s use began
decades before Jemez Pueblo arrived in the late 1200s or early 1300s, which is likely
long enough to acquire aboriginal title.7 See Alabama-Coushatta Tribe, 2000 WL
1013532, at *39–42 (holding that use for 30 years is sufficient to establish aboriginal
title); United States v. Seminole Indians of Fla., 180 Ct. Cl. 375, 387 (1967) (holding
that use for “more than 50 years” is sufficient). Moreover, the district court also
found Zia Pueblo’s use has continued to the present day.
And there is no reason tribes nationwide could not file similar claims seeking
aboriginal title to lands within the 18 other national preserves scattered throughout
the United States or, for that matter, to any lands owned or later acquired by the
government. See National Park Service, About Us (last updated Jan. 30, 2023),
7
When confronted with this possibility, the majority assures that “whether a
[t]ribe was the first occupant of certain land is ultimately irrelevant to whether the
[t]ribe established aboriginal title to the land.” Maj. Op. 26 n.17 (quoting App. vol. 6,
186 n.85). I agree that first use of an area should be irrelevant to the analysis. The
problem is that under the majority’s approach, such use becomes relevant; tribes like
Zia Pueblo who used an area first may now claim aboriginal title so long as their use
continued in some form and no extinguishment has occurred.
9
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https://www.nps.gov/aboutus/national-park-system.htm. Under the majority’s
analysis, so long as those tribes exclusively used an area during some prior historical
era and their use has continued in some form, they may now assert aboriginal title—
even if their use has not been exclusive for hundreds of years. Rather than open the
door to quiet-title claims based on tribal use of land that has not been exclusive for
centuries, I would hold that Jemez Pueblo cannot assert aboriginal title.
Conclusion
Because it has been more than 350 years since Jemez Pueblo had exclusive use
of Banco Bonito, the district court rightly determined that Jemez Pueblo failed to
establish that it held aboriginal title in 2000 when the government allegedly
interfered with that use. I would affirm the district court’s rejection of Jemez
Pueblo’s Banco Bonito claim.
10
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No. 20-2145, Pueblo of Jemez v. United States, et al.
EID, J., concurring in part and dissenting in part.
I join the majority opinion with respect to the Pueblo of Jemez’s claim to Banco
Bonito, but I disagree with how it analyzes the Paramount Shrine Lands claim. In my
view, the district court erred by refusing to consider, on notice grounds, whether Jemez
holds aboriginal title to discrete subareas of the Valles Caldera like the Paramount Shrine
Lands. I would also reverse the district court’s alternative holding that Jemez could only
establish aboriginal title to the Paramount Shrine Lands by demonstrating the ability to
exclude other tribes from those lands’ indeterminate surroundings. Like the district
court’s treatment of Banco Bonito, its alternative holding regarding the Paramount Shrine
lands imposed a made-up requirement that subverts aboriginal title law. Accordingly, I
respectfully dissent from Part IV of the majority opinion.
I.
The district court erred by refusing to analyze Jemez’s claim to the Paramount
Shrine Lands subarea on reconsideration. The district court held that Jemez’s subarea
claims (other than Banco Bonito) should have been raised at an earlier stage in the
litigation, as the government was not on notice of them when Jemez moved for
reconsideration. I think reversal is inescapable. The government was on notice of
Jemez’s claim to the Valles Caldera, so it was plainly on notice of Jemez’s claim to any
and all of the Valles Caldera’s subareas. Although a Rule 59(e) motion is subject to
deferential abuse of discretion review, a district court abuses its discretion where it makes
an error of law or renders a “manifestly unreasonable” ruling. See maj. op. at 14 (quoting
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Eaton v. Pacheco, 931 F.3d 1009, 1027 (10th Cir. 2019)). In my view, when taking into
account the stakes and nature of this land dispute, it was both legal error and manifestly
unreasonable to refuse to assess Jemez’s claim of aboriginal title to discrete subareas
after its original claim had been rejected. I would hold that the district court abused its
discretion and reverse.
Recognizing, as we must, that we are dealing with a complex legal and factual
dispute about whether aboriginal title existed—and, if so, to what extent—in the Valles
Caldera, I find it untenable to conclude that Jemez was somehow prevented from seeking
to confirm its aboriginal title to what everyone agrees is a subset of the initial claim area.
If anything, it was incumbent upon the district court to refine its sense of non-exclusivity
in its post-trial opinion to ensure that Jemez’s potentially valid aboriginal title to any
subareas was not jeopardized by a finding of Valles Caldera–wide non-exclusivity. If
either party or the district court viewed the trial record as insufficient to resolve Jemez’s
subarea claims, the district court could have held further proceedings focusing on the
subareas in particular—as the district court itself suggested. See Aplt. App’x Vol. VIII at
1480. The fact that the parties have spent seven years litigating this dispute weighs in
favor of getting it right, not taking a shortcut.
As the majority recounts, Jemez initially claimed the entire Valles Caldera, and the
district court rejected that claim after a twenty-one-day trial because of Jemez’s
nonexclusive use of the entire Valles Caldera. But, as Jemez suggested in moving for
reconsideration, the rational follow-up question concerns the geographic scope of the
district court’s dispositive exclusivity finding. Indeed, the district court seemed to
2
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envision precisely this kind of partial resolution in the conclusions of law it entered after
trial, where it stated that “a court may find that a claimant Tribe had exclusive use of
certain portions of the claim area[] but failed to prove exclusive use of other portions.”
Aplt. App’x Vol. IV at 789; see also Aplt. App’x Vol. VIII at 1477 (government
acknowledging the same but arguing not on the facts of this case). If the district court
was unable or unwilling to clarify the scope of its exclusivity finding unprompted, the
best way to determine it within the confines of this litigation would have been to motion
the district court to reconsider whether Jemez had aboriginal title to a smaller portion of
the Valles Caldera. That is exactly what Jemez did here. The majority is untroubled by
the district court’s ruling. I would hold that reconsideration was required.
The majority, the district court, and the government all seem to expect Jemez to
have pleaded, in the infinite alternative, every possible permutation of land claim in light
of every possible permutation of responses by the district court. See maj. op. at 33; Aplt.
App’x Vol. VI at 1150; Aple. U.S. Br. at 49. But that cannot be the solution. As Jemez
rightly observes, such a system “would be impractical if not impossible to implement.”
Reply Br. at 15. From a notice perspective, I think Jemez’s claim to the Valles Caldera
necessarily included all its subareas. That reading follows from Jemez’s complaint,
which sought to quiet aboriginal title to “the lands of the Valles Caldera National
Preserve.” Aplt. App’x Vol. I at 62 (emphasis added). It would be nonsensical for Jemez
to have to anticipate every single possible alternative ruling the district court might make
regarding those lands just to preserve its ability to quiet title to parcels already
encompassed within the initial claimed area. Rather, it was both expedient and efficient
3
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from a judicial economy perspective for Jemez to proceed precisely as it did here—that
is, to accept the district court’s ruling with respect to the original claim and try to
understand what subsets, if any, survived it. The notion that Jemez’s aboriginal title
claim to the Valles Caldera was an all-or-nothing proposition is fundamentally
inconsistent with basic remedial principles. See Fed. R. Civ. P. 54(c) (“[F]inal judgment
should grant the relief to which each party is entitled, even if the party has not demanded
that relief in its pleadings.”). The government was therefore on notice of Jemez’s subarea
claims by virtue of its Valles Caldera claim.
The government’s suggestion that Jemez was “chang[ing] strategy after trial and
an unfavorable decision,” Aple. U.S. Br. at 49, is the wrong framing here. Rather, Jemez
accepted the district court’s finding that it lacked aboriginal title to the entire Valles
Caldera and sought to quiet title to specified subareas based on arguable claims to
aboriginal title that were no less legitimate after the district court’s post-trial ruling.
Jemez had argued for title to the subparts of the Valles Caldera because an argument for
all “lands of the Valles Caldera National Preserve” was an argument for its subparts.
Aplt. App’x Vol. I at 62. Reconsideration of those subarea land claims was essential, and
the government was on clear notice of Jemez’s asserted interest in all lands encompassing
the Valles Caldera from the moment Jemez filed suit. The district court therefore abused
its discretion by reasoning around the problems with its initial order’s wholesale
dismissal of Jemez’s claim.
It is true that a district court has broad discretion to manage proceedings before it,
but some choices are off-limits. In my view, the district court could have either analyzed
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the subarea claims based on the trial record or held further proceedings to provide a
factual basis for deciding those claims. It should have done so sua sponte after trial and,
if not, done so in response to Jemez’s motion for reconsideration. What the district court
could not do, however, is what it did here: decline to decide those claims entirely on
notice grounds. It is undisputed that the Paramount Shrine Lands fall within the territory
sought in the complaint. The district court’s conclusion on notice—much like its
simultaneous decision on Banco Bonito, which the court correctly reverses today—is
“altogether unjust.” See maj. op. at 24. It was both legal error and manifestly
unreasonable. But the majority opinion endorses it anyway. I would not. I would hold
that the district court’s decision “‘exceeded the bounds of permissible choice,’ given the
facts and the applicable law in the case at hand,” and was thus an abuse of discretion.
United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United States v.
Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)).
II.
The district court alternatively held that the Paramount Shrine Lands claim failed
because aboriginal title respecting “such minute areas” would require an additional
showing of Jemez’s ability to exclude other tribes from those areas’ surroundings. Aplt.
App’x Vol. VI at 1157. The majority expresses “no opinion” on this issue. See maj. op.
at 33. However, the majority’s thorough discussion of Banco Bonito—which I join in
full—would compel reversal if we reached the district court’s alternative ground. I
would reach and reverse this holding as well.
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As a doctrinal matter, the district court’s authorities do not support its “belie[f]
that to establish aboriginal title to a discrete geographic feature, such as a shrine, spring,
or trail, a Tribe must prove that it had the ability, if it wished, to exclude local, adverse
Tribes from the surrounding land or from the feature itself if there is evidence of other
Tribes in the vicinity.” Aplt. App’x Vol. VI at 1157. Indeed, the district court
forthrightly acknowledged that “no case deals with aboriginal title to such minute areas”
but claimed to find support for its proposition anyway. Id. In my view, that support was
illusory, and the resulting “belief” was both ill-advised and needlessly detrimental to
aboriginal title claims. The district court’s authorities merely restate the general
principle, with which neither I nor the majority quarrel, that a tribe establishing
aboriginal title must demonstrate its ability to exclude other tribes from the interest
claimed. See, e.g., Strong v. United States, 518 F.2d 556, 561 (Ct. Cl. 1975) (“Certainly,
one of the primary characteristics of ownership is the desire and ability to exclude others
from the area over which ownership is claimed.”); see also Aplt. App’x Vol. VI at 1158
(district court relying on Strong). The district court’s cases simply do not support a leap
from (1) demonstrating exclusivity with respect to the land claimed to (2) demonstrating
exclusivity with respect to land surrounding the land claimed. Aside from the lack of a
doctrinal basis for the latter showing, it is worth noting that the former is bounded and
straightforward, while the latter is open-ended and imprecise. Besides, as Jemez
observes, “Anglo-American property law” does not typically feature “a minimum size . . .
for recognition of interests in real property.” Aplt. Br. at 42. It is unclear why such a
requirement would arise in this context.
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Placing new legal obstacles in the way of Jemez’s ability to demonstrate
aboriginal title was error with respect to the Paramount Shrine Lands just as it was error
with respect to Banco Bonito. In both instances, the district court lacked doctrinal
support and discarded core principles that underlay this area of law. Where a tribe has
shown continuous and exclusive possession of real property for a long time sufficient to
establish aboriginal title and where its property interest has been neither extinguished nor
abandoned, it is unclear why an aboriginal title claim would fail or face additional
constraints simply because the relevant property was small—whatever that means. As
the majority explains, a successful Quiet Title Act claim based on aboriginal title requires
two showings: that a tribe once held aboriginal title and that it continues to hold
aboriginal title. See maj. op. at 20. Just as our cases say nothing about a “continuing-
exclusivity requirement,” id. at 23, they say nothing about a minimum size to avoid
triggering a requirement to prove exclusivity with respect to surrounding lands. Aside
from the lack of legal support for the new barrier interposed by the district court, the
absence of any obvious cutoff point for when a claimed area is large enough to be
assessed on its own terms—as the district court did with Banco Bonito, for example—
makes the district court’s approach puzzling. The scope of the relevant surroundings is
likewise unclear.
Privileging a new criterion like size seems especially inappropriate where Jemez
derives religious significance from the property at issue—notwithstanding the
government’s suggestion at oral argument that a claim to the Paramount Shrine Lands is
like a claim to a chair in a law school classroom. See Oral Arg. at 46:05–46:41. The trial
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record is replete with evidence of the historic and continuing significance of the
Paramount Shrine Lands to Jemez. See, e.g., Aplt. App’x Vol. III at 551. Their
importance deftly illustrates some of the problems with the novel legal impediment the
district court devised as an alternative ground for denying Jemez’s claim. In effect, the
district court told Jemez that, however integral the Paramount Shrine Lands may be to the
Jemez community, they could not be the subject of an aboriginal title claim without proof
that Jemez could exclude other groups from Redondo, which is a site of significance to
numerous other tribes.
I would not adopt a rule so contrary to tribal land claims with so few concrete
parameters and so little doctrinal basis. It bears repeating that the majority does not adopt
such a rule today either. See maj. op. at 33. I see no reason Jemez should be precluded
from quieting its aboriginal title to a smaller area of land unless it can demonstrate title to
the surrounding areas. As with any aboriginal title claim, Jemez must still prove actual,
exclusive, and continuous use and occupancy, for a long time, with respect to the claimed
land itself. See Pueblo of Jemez v. United States (Jemez I), 790 F.3d 1143, 1165 (10th
Cir. 2015). The government’s arguments about the evidentiary difficulties it might face
in countering aboriginal title suits involving smaller parcels of land, see Aple. U.S. Br. at
53, is unpersuasive because the tribal claim at issue would face the same constraints.
There is no presumption of aboriginal title; the burden remains on the plaintiff tribe to
demonstrate it has satisfied the relevant doctrinal requirements for the parcel in question.
See Jemez I, 790 F.3d at 1165–66. But the plaintiff tribe’s burden is always limited to the
parcel in question. I would hold that the district court erred by holding otherwise.
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III.
I would reverse the district court with respect to the aforementioned legal
obstacles that guided its rejection of Jemez’s claim to the Paramount Shrine Lands.
However, I would go no further. The parties argue the merits of the Paramount Shrine
Lands claim on appeal to a certain extent, but aboriginal title is a question of fact. See id.
at 1165; maj. op. at 14. Without a factual finding under the right legal framework that
can be reviewed on appeal for clear error, I would not usurp the district court’s critical
factfinding role. Instead, I would remand Jemez’s Paramount Shrine Lands claim for
evaluation consistent with my position discussed above and with the majority opinion’s
resolution of the Banco Bonito issue. For the foregoing reasons, I respectfully concur in
part and dissent in part.
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