Pueblo of Jemez v. United States
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Opinion
James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Plaintiff's Motion in Limine to Exclude Certain Evidence, filed August 17, 2018 (Doc. 236)("MIL 1"). The Court held a hearing on September 14, 2018. The primary issue is whether evidence of land use by other than Plaintiff Pueblo of Jemez after 1848 -- the year when the Pueblo Indians can under United States jurisdiction -- is relevant to whether Jemez Pueblo holds continuing aboriginal title to the Valles Caldera.1 The Court denies MIL 1, *1057because the United States Court of Appeals for the Tenth Circuit has expressly instructed the Court to consider such evidence. See Pueblo of Jemez v. United States,
FACTUAL BACKGROUND
The following facts are taken in large part from the Opinion of the Court of Appeals for the Tenth Circuit and supplemented with additional facts from the initial pleadings and subsequent briefs of both parties. The Court recognizes that some of these facts may be in dispute, and the Court is not making any findings of fact in this Memorandum Opinion and Order.
1. The Jemez Pueblo.
The Tenth Circuit summarized the relevant facts as follows:
The ancestral Jemez people have used and occupied the lands of the Valles Caldera National Preserve and the surrounding areas in the Jemez Mountains of New Mexico since at least 1200 CE.[2 ] The ancestral Jemez, whose descendants comprise the modern Jemez Pueblo, a federally recognized tribe, have for more than 800 years been the predominant and primary occupants and land users of the Jemez Mountains, including the Valles Caldera National Preserve and the greater Rio Jemez watershed. The Valles Caldera is a dormant crater of a *1058supervolcano located at the center of the Jemez Mountains. The crater rim itself is twenty miles in diameter and is surrounded by four high-mountain valleys and eleven resurgent volcanic domes. The crater rim, high-mountain valleys, and volcanic domes are located within the exterior boundaries of the Valles Caldera National Preserve.
The Jemez Pueblo is made up of the ancestral Jemez populations of Towa-speaking pueblos, including the Pecos Pueblo and the Jemez Pueblo village of Walatowa. The ancestral Jemez Pueblo's aboriginal title allegedly included the Rio Jemez drainage and the Valles Caldera, an area known to the Pueblo Jemez as the "western Jemez homeland." [3 ]... The western Jemez homeland includes a portion of the land at issue in this case within the Valles Caldera National Preserve and covers an area of more than 1,100 square miles in and around the Jemez Mountains. It includes the entire Rio Jemez drainage system above Walatowa, the modern Jemez Pueblo village, and sections of the Rio Puerco drainage west of the Jemez Mountains.
The western Jemez homeland contains ancestral Jemez Pueblo villages, sacred areas, and ceremonial shrines where the ancestral Jemez have lived since migrating from the mesa and canyon country to the northwest prior to 1200 CE. The Jemez Pueblo's oral history refers to the area to the northwest and describes the great southern migration to its western Jemez homeland. Archeological investigations in the western homeland have found at least sixty pueblo villages linked with a network of trails and many thousand farmhouse sites, agricultural fields, ceremonial sites, sacred areas, mineral procurement areas, camp sites, and other areas associated with the ancestral Jemez. The ancestral Jemez population in the western homeland has ranged from about 10,000 to 15,000 during the prehistoric period and from 7,000 to 10,000 during the Spanish colonial period.
The ancestral Jemez maintained an extensive network of agriculture and farming practices in the Valles Caldera and Jemez Mountains. The Valles Caldera contains many important sacred areas and religious sites of the traditional ancestral Jemez culture and the area is greatly valued by the Jemez Pueblo as a spiritual sanctuary. The ceremonial sites and gathering areas are still actively used by the Jemez Pueblo today and are crucial to the continuing survival of traditional Jemez Pueblo culture and religion. Ancient religious pilgrimage trails link Walatowa to sites within the Valles Caldera, including Redondo Peak and sacred springs, and the Jemez Pueblo members continue to make religious pilgrimages to these sites to leave prayer offerings and conduct rituals. The Jemez Pueblo hunt societies make lengthy visits to the Valles Caldera to hunt and conduct religious ceremonies and initiations of new members. Moreover, the mineral and hot springs within the Valles Caldera are used by the Jemez Pueblo's medical societies for healing.
The Jemez continue to rely on the Valles Caldera for many critical resources, as they have done for more than 800 years, including the land and water for livestock; plants and animals on the land for subsistence living; timber for construction and firewood; mountain and forest shelter from the elements; plants, herbs, and roots for medicine;
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James O. Browning, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the Plaintiff's Motion in Limine to Exclude Certain Evidence, filed August 17, 2018 (Doc. 236)("MIL 1"). The Court held a hearing on September 14, 2018. The primary issue is whether evidence of land use by other than Plaintiff Pueblo of Jemez after 1848 -- the year when the Pueblo Indians can under United States jurisdiction -- is relevant to whether Jemez Pueblo holds continuing aboriginal title to the Valles Caldera.1 The Court denies MIL 1, *1057because the United States Court of Appeals for the Tenth Circuit has expressly instructed the Court to consider such evidence. See Pueblo of Jemez v. United States,
FACTUAL BACKGROUND
The following facts are taken in large part from the Opinion of the Court of Appeals for the Tenth Circuit and supplemented with additional facts from the initial pleadings and subsequent briefs of both parties. The Court recognizes that some of these facts may be in dispute, and the Court is not making any findings of fact in this Memorandum Opinion and Order.
1. The Jemez Pueblo.
The Tenth Circuit summarized the relevant facts as follows:
The ancestral Jemez people have used and occupied the lands of the Valles Caldera National Preserve and the surrounding areas in the Jemez Mountains of New Mexico since at least 1200 CE.[2 ] The ancestral Jemez, whose descendants comprise the modern Jemez Pueblo, a federally recognized tribe, have for more than 800 years been the predominant and primary occupants and land users of the Jemez Mountains, including the Valles Caldera National Preserve and the greater Rio Jemez watershed. The Valles Caldera is a dormant crater of a *1058supervolcano located at the center of the Jemez Mountains. The crater rim itself is twenty miles in diameter and is surrounded by four high-mountain valleys and eleven resurgent volcanic domes. The crater rim, high-mountain valleys, and volcanic domes are located within the exterior boundaries of the Valles Caldera National Preserve.
The Jemez Pueblo is made up of the ancestral Jemez populations of Towa-speaking pueblos, including the Pecos Pueblo and the Jemez Pueblo village of Walatowa. The ancestral Jemez Pueblo's aboriginal title allegedly included the Rio Jemez drainage and the Valles Caldera, an area known to the Pueblo Jemez as the "western Jemez homeland." [3 ]... The western Jemez homeland includes a portion of the land at issue in this case within the Valles Caldera National Preserve and covers an area of more than 1,100 square miles in and around the Jemez Mountains. It includes the entire Rio Jemez drainage system above Walatowa, the modern Jemez Pueblo village, and sections of the Rio Puerco drainage west of the Jemez Mountains.
The western Jemez homeland contains ancestral Jemez Pueblo villages, sacred areas, and ceremonial shrines where the ancestral Jemez have lived since migrating from the mesa and canyon country to the northwest prior to 1200 CE. The Jemez Pueblo's oral history refers to the area to the northwest and describes the great southern migration to its western Jemez homeland. Archeological investigations in the western homeland have found at least sixty pueblo villages linked with a network of trails and many thousand farmhouse sites, agricultural fields, ceremonial sites, sacred areas, mineral procurement areas, camp sites, and other areas associated with the ancestral Jemez. The ancestral Jemez population in the western homeland has ranged from about 10,000 to 15,000 during the prehistoric period and from 7,000 to 10,000 during the Spanish colonial period.
The ancestral Jemez maintained an extensive network of agriculture and farming practices in the Valles Caldera and Jemez Mountains. The Valles Caldera contains many important sacred areas and religious sites of the traditional ancestral Jemez culture and the area is greatly valued by the Jemez Pueblo as a spiritual sanctuary. The ceremonial sites and gathering areas are still actively used by the Jemez Pueblo today and are crucial to the continuing survival of traditional Jemez Pueblo culture and religion. Ancient religious pilgrimage trails link Walatowa to sites within the Valles Caldera, including Redondo Peak and sacred springs, and the Jemez Pueblo members continue to make religious pilgrimages to these sites to leave prayer offerings and conduct rituals. The Jemez Pueblo hunt societies make lengthy visits to the Valles Caldera to hunt and conduct religious ceremonies and initiations of new members. Moreover, the mineral and hot springs within the Valles Caldera are used by the Jemez Pueblo's medical societies for healing.
The Jemez continue to rely on the Valles Caldera for many critical resources, as they have done for more than 800 years, including the land and water for livestock; plants and animals on the land for subsistence living; timber for construction and firewood; mountain and forest shelter from the elements; plants, herbs, and roots for medicine;
*1059aspen and willow for drums and ritual objects; oak, cherry, and mahogany for bows and ritual objects; rosewood, plums, and reeds for arrows; obsidian and chert for stone tools; minerals for paint and pigments; spring water and evergreens for ceremonial rites; large and small game for ceremonial use; and feathers for ceremonial use and for arrows. The Jemez Pueblo alleges that by this native occupancy and use it has established aboriginal title to the lands at issue in the Valles Caldera National Preserve.
2. Treaty of Guadalupe Hidalgo and the Baca Land Grant.
In 1848, the United States signed the Treaty of Guadalupe Hidalgo, thereby ending the Mexican-American war and acquiring the territory of New Mexico.4 See Treaty of Guadalupe Hidalgo, U.S.-Mex., Feb. 2, 1848, art. VIII,
Based in part on this report, Congress passed an act confirming land claims that several pueblos, including Jemez Pueblo, made, thereby relinquishing "all title and claim of the United States to any of said lands." Pueblo Lands Act of 1924,
The lands that encompass the Valles Caldera came to the Surveyor-General's attention after his report to Congress that the heirs of Luis Maria Baca ("Baca heirs") and the inhabitants of Las Vegas, New Mexico both had valid but conflicting claims to a large tract of land in the vicinity of Las Vegas. See Lane v. Watts,
the Jemez Pueblo alleges the lands ... were "exclusively possessed, used and occupied by Jemez Pueblo pursuant to the Pueblo's aboriginal Indian title,"id. at 18 ¶ 82, and that the "Baca heirs received these lands subject to the continuing aboriginal Indian title of Jemez Pueblo,"id. at 18 ¶ 83. Moreover, the Jemez Pueblo alleges that it continued to use and occupy the Valles Caldera for traditional purposes without any opposition or interference from the Baca family.
Pueblo of Jemez v. United States,
3. The Pueblo's Claims Before the Indian Claims Commission.
In 1946, Congress enacted the Indian Claims Commission Act,
*1061On July 9, 1951, within the ICCA's prescribed five-year period for filing claims, the Jemez, Zia, and Santa Ana Pueblos filed a petition with the ICC. See Pueblo of Zia, et al v. United States, 11 Ind. Cl. Comm. 131 (1962)("Zia I"). Before the ICC, the Pueblos alleged, among other things, that in 1848, they held aboriginal title to approximately 520,000 acres of lands in Sandoval County, New Mexico. See United States v. Pueblo De Zia,
The ICC initially concluded that the Pueblos had failed to establish any aboriginal title to any of the lands. See Zia IV,
On appeal, the Pueblos "concede[d] the correctness of the Commission's determination that they had no aboriginal claim to the Spanish grants which encroach on the claimed area." Zia II,
On remand, the Pueblos argued that the United States had extinguished the Pueblos' aboriginal title by including some of the lands within the Jemez National Forest Reserve and by including the remaining lands within the boundaries of a grazing district established pursuant to the Taylor Grazing Act of 1934,
The parties entered into a settlement, and on January 10, 1974, the ICC entered a final judgment of $749,083.75 in favor of the Pueblos. See *1062Pueblo of Jemez v. United States, No. CIV 12-0800 RB/RHS,
4. Valles Caldera Preservation Act.
On July 25, 2000, then-President Clinton signed the Valles Caldera Preservation Act of 2000, 16 U.S.C. §§ 698v - 698v-10 (repealed 2014)("Preservation Act"),6 establishing the Valles Caldera National Preserve. See Pueblo of Jemez v. United States,
PROCEDURAL BACKGROUND
In 2012, the Jemez Pueblo filed this suit under the federal common law and the Quiet Title Act, 28 U.S.C. § 2409a ("QTA"), seeking a judgment that Jemez Pueblo "has the exclusive right to use, occupy, and possess the lands of the Valles Caldera National Preserve pursuant to its continuing aboriginal title to such lands." Complaint to Quiet Title to Aboriginal Indian Land, Prayer for Relief ¶ 1, at 14-15, filed July 20, 2012 (Doc. 1)("Complaint"). Specifically, Jemez Pueblo alleges aboriginal title to "that certain parcel of land commonly known as Baca Location No. 1 located in Sandoval and Rio Arriba Counties, New Mexico ... containing 99,289.39 acres, more or less." Doc. 1 at 27.
1. The Motion to Dismiss.
The United States' filed a motion to dismiss pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure based on the theories that: (i) the *1063ICC divested the district court of jurisdiction over the Pueblo's claim to the Valles Caldera, and (ii) sovereign immunity and issue preclusion bar Jemez Pueblo from bringing a claim. See United States' Motion to Dismiss Plaintiff's Complaint and Memorandum of Points and Authorities at 2-3, filed February 14, 2013 (Doc. 14)("Motion"). As to rule 12(b)(1), the United States argued that "Congress expressly deprived district courts of jurisdiction over the subject matter of Plaintiff's claims, when it enacted the limited waiver of sovereign immunity in the ICCA, which has since expired." Motion at 10. Although Jemez Pueblo contends that it possessed unextinguished aboriginal title in 2000, when Congress passed the Preservation Act, the United States argues that Jemez Pueblo was divested of aboriginal title in 1860, when the United States granted the land encompassing the Valles Caldera to the Baca family. See Motion at 10. The United States contends that the ICCA bars Jemez Pueblo's action in this case because of the ICCA's "finality provision," which states that
(1) payment of any claim after a determination under the Act shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy, and (2) a final determination against a claimant made and reported in accordance with the Act shall forever bar any further claim or demand against the United States arising out of the matter involved in the controversy.
Motion at 11 (quoting ICAA § 22(a) ). It follows, according to the United States, that the finality provision "fully discharged the United States of all liabilities." Motion at 11 (emphasis in Motion).
The United States further argues that, based on the Complaint and the amended petition filed before the ICC in Zia I, Jemez Pueblo's claims concern "the same matters that were litigated nearly 50 years prior." Motion at 13. According to the United States, finality thus occurred when the United States deposited the final monetary award in Jemez Pueblo's bank account. See Motion at 13 (citing United States v. Dann,
The United States also argues that, based on Jemez Pueblo's Complaint, "[t]he United States ostensibly acted in a manner inconsistent with the Pueblo's aboriginal title long before 1946, and [Jemez Pueblo] has offered no explanation why they were unable to pursue this claim in the exclusive forum of the ICC." Motion at 18. The United States further argues that "[i]t is irrelevant that the Pueblo did not claim title to the Valles Caldera in the ICC litigation; the Pueblo could have asserted title to the Valles Caldera in much the same manner that they did with respect to other land claims." Motion at 18. The United States adds that "it is hard to conceive of a claim more stale than Plaintiff's claim of title to the National Preserve," and it "would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading." Motion at 19 (citing Block v. North Dakota ex rel. Board of Univ. & Sch. Lands,
The United States also contends that rule 12(b)(6) forms the basis for dismissal of Jemez Pueblo's claims, because Jemez Pueblo already "fully and fairly litigated the scope and extent to which the [Jemez, Zia, and Santa Ana] Pueblos possessed aboriginal title to public lands," and is therefore foreclosed from bringing this claim under the doctrine of issue preclusion. Motion at 19-20. According to the United States, issue preclusion obtains because the ICC: (i) "made specific factual findings ... defining the outer contours of the Pueblo's aboriginal lands"; (ii) paid an award to Jemez Pueblo that discharged all matters in controversy, which was effectively the Court of Claims' final judgement; and (iii) permitted Jemez Pueblo to provide "extensive" evidence, which is indicative of a "full and fair" opportunity to litigate. Motion at 22-23.
The United States argues that Jemez Pueblo's claim of aboriginal title fails, because Jemez Pueblo cannot show exclusive use and occupancy given that the Baca family and their successors-in-interest occupied the Valles Caldera for almost 150 years. See Motion at 24. Moreover, according to the United States, the ICC already concluded that the United States' decision "to relinquish ownership and control of land in the public domain ... extinguished any aboriginal title." Motion at 24. Jemez Pueblo's use was not exclusive, according to the United States, because Jemez Pueblo has already conceded that other individuals occupied the land before federal acquisition in 2000. See Motion at 24. Furthermore, the Preservation Act extinguished Jemez Pueblo's right to exclusive use and occupancy, "if any such right even existed." Motion at 24-25. The United States argues that such reasoning is in accord with the Court of Federal Claims' conclusion that "the Jemez Forest Reserve ... effectively deprived them of the land and extinguished title." Motion at 25 *1065(citing Zia IV,
2. Jemez Pueblo's Response.
Jemez Pueblo responded to the Motion by arguing that the United States has not provided a factual basis that Jemez Pueblo's "exclusive claim to the Valles Caldera touches on the joint claim in the ICC such that the payment of any award would have triggered the finality provision of the ICCA." Plaintiff's Response in Opposition to United States' Motion to Dismiss Plaintiff's Complaint and Memorandum of Points and Authorities at 4, filed May 13, 2013 (Doc. 22)("Response"). Jemez Pueblo further argues that the United States also fails to provide extrinsic evidence that Jemez Pueblo "had a claim for compensation relating to the Valles Caldera as of 1946." Response at 4. Jemez Pueblo contends that it has alleges facts sufficient to establish a claim that entitles it to relief, specifically that Jemez Pueblo holds aboriginal title to the Valles Caldera "through exclusive use and occupancy from as early as the 13th century." Response at 5-6. Moreover, Jemez Pueblo asserts that the title is still valid, because Congress has not expressly acted to extinguish it. See Response at 6. Moreover, the Congressional statute that grants land to the Baca heirs lacks the requisite, express language necessary to extinguish aboriginal title. See Response at 7. Thus, according to Jemez Pueblo, the Surveyor-General's approval of the land that now encompasses the Valles Caldera "was no more than a ministerial action" incapable of extinguishing title. Response at 8. Furthermore, according to Jemez Pueblo, the Congressional statute authorizes only the selection of "vacant" land and makes no mention of preexisting rights, indicating that the Baca heirs took title subject to the Tribal right of use and occupancy. Response at 8. According to Jemez Pueblo, in the years since the Baca land grant, Jemez Pueblo has neither ceded nor abandoned its aboriginal title. Response at 9.
Jemez Pueblo also argues that Congress did not intend that the ICCA be an "exclusive remedy" which would extinguish otherwise valid aboriginal title. Response at 10. The ICCA, according to Jemez Pueblo, is remedial legislation intended to provide American Indians with "a measure of justice and a remedy for ancient wrongs." Response at 10 (citing Blackfeet & Gros Ventre Tribes of Indians v. United States,
Jemez Pueblo contests the United States' assertion that the Tenth Circuit in Navajo Tribe of Indians v. New Mexico holds that Tribes were required to present claims of existing aboriginal title, principally because the Tenth Circuit does not explain "just how broadly the word 'claim' under the ICCA should be interpreted." Response at 20 (citing Navajo Tribe of Indians v. New Mexico,
Jemez Pueblo also argues that the proceedings before the ICC in United States v. Pueblo De Zia, do not preclude its claim, because that action was for a separate piece of disputed land jointly held by three pueblos and was not a claim for "compensation for a general taking of all Jemez Pueblo lands." Response at 31-32. Jemez Pueblo thus contends that it never had a "full and fair" opportunity to litigate this claim, which is exclusive to the Valles Caldera. Response at 34. Furthermore, according to Jemez Pueblo, the ICCA's finality provision does not bar the present claim, because it does not touch the claim that Jemez Pueblo settled in Zia III. Response at 36. Moreover, argues Jemez Pueblo, because the Valles Caldera was not the subject of the ICC litigation, neither the payment of the award nor the stipulation of settlement serves as a bar the present suit. See Response at 37-39. Jemez Pueblo also adds that nothing in the language of the Preservation Act indicates that Congress intended to extinguish aboriginal title, and, "[i]n fact, the Preservation Act expressly preserved valid existing rights." Response at 40 (citing § 105(e),
3. The United States' Reply.
The United States replies to Jemez Pueblo's Response by reasserting that Jemez Pueblo's failure to timely file its claim under the ICCA divests the district court of subject-matter jurisdiction and deprives Jemez Pueblo of the opportunity to litigate its claims against the United States. See United States' Reply and Memorandum of Points and Authorities in Support of Motion to Dismiss Plaintiff's Complaint at 1-2, filed June 5, 2013 (Doc. 22)("Reply"). The United States argues that the Motion is a factual challenge to the existence of subject-matter jurisdiction, because it contends that the ICCA's time-limited waiver of sovereign immunity bars the district court from exercising jurisdiction over the suit. See Reply at 3. The United States adds that Jemez Pueblo "misunderstands the nature of subject matter jurisdiction," because Jemez Pueblo bears the burden to identify a "waiver of the United States' sovereign immunity." Reply at 3-4 (citing Kokkonen v. Guardian Life Ins. Co. of Am.,
The United States also argues that the ICCA did not operate as a "backhanded" extinguishment of aboriginal title, but instead represented Congress' decision to vest the ICC with exclusive jurisdiction of a limited duration "to resolve with finality all claims against the United States." Reply at 5. The United States contends that the ICCA "provided the only unequivocal expression of the United States' consent to be sued for the subject matter that lies at the heart of this case: historic land claims against the United States ." Reply at 5 (emphasis in Reply). The waiver, however, according to the United States, was for a period of only five years. See Reply at 5 (citing ICCA § 12 (stating that any claim *1068not filed within the limitations period could not "thereafter be submitted to any court or administrative agency for consideration.") ). The United States avers that failure to bring a claim before the ICC did not effectuate an extinguishment, as Jemez Pueblo contends, but rather resulted in losing an opportunity to litigate a dispute against the United States. See Reply at 6. Jemez Pueblo's decades-long litigation before the ICC, according to the United States, is evidence of the ICCA's broad scope, and the payment of the award discharges "all matters that were raised or could have been raised." Reply at 6.
The United States contends that Jemez Pueblo "blurs the distinction" between being foreclosed from litigating the validity of title against the United States and the extinguishment of aboriginal title, which the United States agrees the ICCA decidedly did not effectuate. Reply at 7. The United States argues that the favorable cases cited by Jemez Pueblo involve water rights claims that were against parties other than the United States, which could not have been litigated before the ICC, because the claims were not against the United States and were therefore outside of the ICCA's jurisdiction. See Reply at 8 n.4. Thus, according to the United States, Jemez Pueblo's only opportunity to sue the sovereign was before the ICC. See Reply at 9. Moreover, the United States notes that Jemez Pueblo's claim of title to the Valles Caldera is cognizable under the ICCA and therefore should have been litigated during the statutorily prescribed time period. See Reply at 10. The United States concludes that the Tenth's Circuit's decision in Navajo Tribe of Indians v. New Mexico supports this position, because the Tenth Circuit specifically concluded that a claim of unextinguished title was cognizable under the ICCA. See Reply at 12 (citing in Navajo Tribe of Indians v. New Mexico,
The United States also contends that the QTA's remedial scheme highlights the flaws in Jemez Pueblo's suit given that a determination adverse to the United States would likely result in the payment of just compensation -- not cession of the property -- which "would be the identical position had [Jemez Pueblo] pursued this claim before the Commission, six decades after the expiration of the United States' waiver of sovereign immunity." Reply at 14. The United States concludes that dismissal pursuant to rule 12(b)(6) is warranted, because holding otherwise will impermissibly enlarge the scope of the waiver of sovereign immunity. Reply at 14 (citing United States v. Nordic Vill., Inc.,
The United States concedes that monetary compensation is the sole remedy available under the ICCA, however; once Jemez Pueblo accepts the award, the United States is discharged of its liability for any claim that "touched" on or "arose from" the matters previously litigated. Reply at 15. The United States argues that the Eighth Circuit's precedent which Jemez Pueblo cites is "squarely contradicted" by the Eighth Circuit's opinion in Oglala Sioux Tribe of Pine Ridge Indian Reservation v. United States. Reply at 16 (citing Oglala Sioux Tribe of Pine Ridge Indian Reservation v. United States,
Moreover, the United States argues that dismissal under rule 12(b)(6) is appropriate, because Jemez Pueblo has not pled facts that entitle it to exclusive use, occupancy, and control over the Valles Caldera, and, thus, there is no aboriginal title for the United States to extinguish. Reply at 17. It follows, argues the United States, that the Baca family's settlement of the area precludes establishment of aboriginal title "as a matter of law." Reply at 17 (citing Alabama-Coushatta Tribe of Tex. v. United States, No. 3-83,
The United States repeats its argument that dismissal pursuant to rule 12(b)(6) is appropriate, because the federal common law of aboriginal title does not furnish Jemez Pueblo with a superior right to the Valles Caldera than the federal government. See Reply at 21. According to the United States, aboriginal title is "a creature of federal common law," and therefore cannot displace Congress' legislative directives as expressed in the Preservation Act. Reply at 22. Jemez Pueblo, the United States concludes, "has failed to cite a single case" sufficient to show that aboriginal title can "divest the sovereign of its own land." Reply at 22.
4. Judge Brack's Decision.
The Honorable Robert C. Brack, United States District Judge for the District of New Mexico, granted the United States' motion to dismiss for lack of subject-matter jurisdiction by relying primarily on the Tenth Circuit's opinion in Navajo Tribe of Indians v. New Mexico, which held that the statute of limitations within the ICCA bars suits against the United States for claims of aboriginal title. See Pueblo of Jemez I,
Regarding the Tenth's Circuit opinion in Navajo Tribe of Indians v. New Mexico, Judge Brack stated that he is "not free to speculate" about how broadly the Tenth Circuit interprets the word "claim" and instead is tasked with ascertaining and applying the Tenth Circuit's holding that the Tribe's claim against the United States is barred, because the claim falls within the ICCA's exclusive jurisdiction and is therefore subject to the ICCA's statute of limitations. Pueblo of Jemez I,
Judge Brack took issue with the fact that Jemez Pueblo asserts both that the Baca heirs received their land grant in 1860 subject to its aboriginal title and also that it did not have a claim against the United States in 1946:
Plaintiff cannot have it both ways. Either Defendant's grant to the Baca family extinguished aboriginal title or not. If the Baca land grant extinguished Plaintiff's aboriginal title, then aboriginal title was extinguished in 1860 and Plaintiff cannot claim aboriginal title now. On the other hand, if the Baca land grant did not extinguish Plaintiff's aboriginal title, Plaintiff's claim existed prior to 1946 and Plaintiff had the opportunity to avail itself of the remedy afforded by the ICCA and such claim is now barred by the statute of limitations contained in the ICCA.
Pueblo of Jemez I,
Judge Brack also concludes that ICCA § 22 required Jemez Pueblo to litigate its claim to the Valles Caldera in its prior ICC proceedings when it sought compensation, and received money damages, for the taking and extinguishment of aboriginal title to other Jemez Pueblo lands. See Pueblo of Jemez I,
5. Arguments on Appeal.
Jemez Pueblo appeals to the Tenth Circuit from Judge Brack's final order dismissing the case, arguing that Judge Brack erred in failing to find subject-matter jurisdiction over Jemez Pueblo's claim, because Jemez Pueblo filed its claim pursuant to the QTA and not the ICCA. The United States responds that Judge Brack correctly dismissed the case pursuant to rule 12(b)(1), because ICCA §§ 12 and 22 divest his court of jurisdiction. Jemez Pueblo replies by reasserting that Judge Brack erred when he failed to address Jemez Pueblo's subject-matter jurisdiction under the OTA's sovereign immunity waiver, which, according to Jemez Pueblo, was the only waiver of immunity and source of jurisdiction on which Jemez Pueblo relies on in its Complaint.
*1071a. Jemez Pueblo's Appellant Brief.
Jemez Pueblo filed an appeal to the Tenth Circuit from Judge Brack's final order dismissing the case, arguing that Judge Brack erred in failing to find subject-matter jurisdiction over Jemez Pueblo's claim, because Jemez Pueblo filed its claim pursuant to the QTA and therefore "did not rely on the waiver of immunity in the (now repealed) Indian Claims Commission Act." Brief of Appellant Pueblo of Jemez at 14, filed April 30, 2014 (Doc. 01019242516 on the Tenth Circuit's docket)("Appellant Br."). Jemez Pueblo argues that it does not need to allege a fee simple interest in the disputed property to bring a claim under the QTA. See Appellant Br. at 14 (citing Kinscherff v. United States,
Jemez Pueblo argues that Judge Brack ignored the distinction between extinguished and unextinguished title when he decided the factual merits of Jemez Pueblo's claim under rule 12(b)(1) without making the necessary factual determination of when Jemez Pueblo's claim accrued. See Appellant Br. at 17-19. Instead, Jemez Pueblo argues, Judge Brack should have allowed Jemez Pueblo to develop a full record on summary judgement or at trial. See Appellant Br. at 20 (citing Paper, Allied-Indus., Chem. & Energy Workers Intl. Union v. Cont'l Carbon Co.,
Jemez Pueblo argues that, because it alleges a present interest in the Valles Caldera, it was not required to seek compensation before the ICC but instead may pursue equitable relief pursuant to the QTA. See Appellant Br. at 24. Moreover, Jemez Pueblo asserts that it could not have brought a claim for equitable relief in 1946, because the QTA was not enacted until 1972 and because the United States did not at that time have an interest in the Valles Caldera. See Appellant Br. at 25-26.
Jemez Pueblo argues that Judge Brack further erred when he held that the ICCA provides the exclusive remedy for unextinguished Indian land claims, as the ICCA is remedial legislation for takings designed to end the practice whereby Congress required individual Tribes to obtain such legislation on an ad hoc basis. See Appellant Br. at 27-28. Jemez Pueblo identifies seven separate arguments, each of which indicate that the ICCA is not an exclusive remedy: First, the legislative history proves that Felix Cohen, "the author of the definitive treatise on Indian law," informed the *1072House Indian Committee Chairman that the ICCA statute of limitations "would only deny a remedy for then existing claims ." Appellant Br. at 28 (emphasis in Appellant Br.). Second, according to Jemez Pueblo, caselaw does not support the United States' assertion that the waiver of sovereign immunity imposes an "exclusive -- money damages only -- remedy" for Indian Tribes alleging unextinguished property rights. Appellant Br. at 28. Third, according to Jemez Pueblo, a "great number" of Indian Tribes have successfully litigated Tribal rights to land and water, chief among them being Congress' enactment of the Alaska Native Claims Settlement Act on December 18, 1971, "the largest land claims settlement in United States history." Appellant Br. at 30. Fourth, according to Jemez Pueblo, the Tenth Circuit's ostensible support for the exclusive remedy theory in Navajo Tribe v. New Mexico does not bar Jemez Pueblo's claim, because that case involved land that was "indisputably taken by the federal government in 1908 and 1911," which had "clearly accrued as of 1946." Appellant Br. at 35. Fifth, according to Jemez Pueblo, the exclusive remedy theory is contrary to Supreme Court precedent, because the Supreme Court has adjudicated numerous "live" title claims to water and land rights in the years since 1946. Appellant Br. at 42-44. Sixth, according to Jemez Pueblo, the United States has taken inconsistent positions on the ICCA's effect on otherwise unextinguished aboriginal title by previously arguing in favor of the Ohkay Owingeh Pueblo's post-1946 claim to aboriginal water rights in New Mexico, ex rel. State Engineer v. Abbott,
b. The United States' Response.
The United States responds that Judge Brack correctly dismissed the case pursuant to rule 12(b)(1), because ICCA §§ 12 and 22 divest his court of jurisdiction. See Response Brief for the United States at 15, filed July 17, 2014 (Doc. 01019280803 on the Tenth Circuit's docket)("Resp. Br."). ICCA § 12 applies, according to the United States, because Jemez Pueblo's claim accrued no later than 1860, when the United States "unconditionally transferred" the Valles Caldera to the Baca heirs. Resp. Br. at 15. The United States argues that Judge Brack properly determined the accrual question, based on the United States' conveyance of the land to the Baca heirs, without needing to reach the merits of Jemez Pueblo's claim that it exercised "full dominion" over the Valles Caldera. Resp. Br. at 18. The United States argues that ICCA § 22 applies, because Jemez Pueblo "already litigated its claim to aboriginal title before the ICC" and received payment from the federal government, thereby discharging all future "claims and demands touching any of the matters involved in the controversy." Resp. Br. at 15 (citing ICCA § 22(a) ). Again, the United States argues that Judge Brack properly reached this conclusion without considering the merits of Jemez Pueblo's claim, because "there is no overlap between the substantive issue of whether Jemez Pueblo holds continuing aboriginal title and whether Jemez Pueblo's claims of aboriginal title before the *1073ICC touched on its current claim." Resp. Br. at 18.
The United States contends that ICCA § 12 divests Article III courts of jurisdiction over Jemez Pueblo's claim, because its claim existed before 1946, and Congress expressly deprived district courts of jurisdiction over all claims that could have been brought before the ICC, to include suits to quiet title. See Resp. Br. at 20. Claim preclusion applies to Jemez Pueblo, according to the United States, because even unextinguished claims could have been litigated before the ICC. See Resp. Br. at 21. The United States notes that the only remedy available to Tribes was monetary compensation, because Congress desired to ensure that "non-Indians were assured of continuing possession regardless of the outcome of the litigation." Resp. Br. at 22. Furthermore, that the claim accrued before 1946 is evident, because three factors indicate that the United States acted "inconsistently" with Jemez Pueblo's alleged aboriginal title in 1860: First, the Surveyor General found that these lands were "vacant" before authorizing their transfer to the Baca heirs, in conflict with Jemez Pueblo's claim that they "occupied" the lands at the time. Resp. Br. at 24-25. Second, according to the United States, the United States transferred the disputed lands to the Baca heirs "absolutely, without condition," which necessarily "extinguished any aboriginal title (if any existed)," thereby causing any claim based on aboriginal title to accrue. Resp. Br. at 26. The United States rejects Jemez Pueblo's assertion that the Baca grant is subject to pre-existing interests, because the statutory language contains no such limitation. Resp. Br. at 27 (citing Lane v. Watts,
The United States also argues that, contrary to Jemez Pueblo's contentions, the QTA does not provide a separate waiver of sovereign immunity in exception to ICCA § 12's bar on litigating stale claims. See Resp. Br. at 34. Such an exception would require express language in the QTA or support from its legislative history. See Resp. Br. at 34. Furthermore, according to the United States, even if Jemez Pueblo could point to evidence of Congressional intent for the QTA to displace ICCA § 12, the QTA's twelve-year statute of limitations would bar Jemez Pueblo's claim, which accrued in 1860 when the United States first asserted an interest in the Valles Caldera. See Resp. Br. at 36-37 (citing Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands,
The United States contends that, contrary to Jemez Pueblo's assertions, recognizing *1074that the ICCA was the exclusive forum and remedy for Jemez Pueblo's historic land claim in this case does not mean that the ICCA extinguished all Tribal litigation rights. See Resp. Br. at 38. Instead, the ICCA "deprive[s] Article III courts of jurisdiction to entertain historic land claims against the sovereign by enacting a time-limited waiver of sovereign immunity." Resp. Br. at 39. Such a position, according to the United States, does not speak to the merits of the title issue but rather bars Jemez Pueblo from presenting its claim in federal court. See Resp. Br. at 39. The United States notes that the many cases cited by Jemez Pueblo involve claims against a state or a private entity -- not the United States -- and so the ICCA could not apply. See Resp. Br. at 40. Furthermore, argues the United States, post-1946 disputes involving water rights between Tribes and other State and private parties are not barred, because such disputes were "generally not cognizable before the ICC." Resp. Br. at 40.
The United States argues that ICCA § 22 also bars Jemez Pueblo's suit, because the United States already compensated Jemez Pueblo for its aboriginal title claim. See Resp. Br. at 41. Although Baca Location No. 1 was not that litigation's subject, the Baca ranch's southernmost bounds assisted Jemez Pueblo is establishing ownership of lands that Jemez Pueblo claimed, which the United States argues is sufficient contact to preclude the present litigation. See Resp. Br. at 42-43. Moreover, the United States asserts, the extent of Jemez Pueblo's aboriginal title was "squarely at issue" in the litigation before the ICC, and Jemez Pueblo had a full and fair opportunity to present its entire claim at that time. Resp. Br. 43-44. According to the United States, Jemez Pueblo's failure to litigate the Valles Caldera claim then is not cause to seek "an expansion of its earlier award" now. Resp. Br. at 44.
The United States argues in the alternative that the Tenth Circuit should dismiss Jemez Pueblo's Complaint under rule 12(b)(6), because three factors show that the Complaint fails to state a claim as a matter of law: First, Jemez Pueblo has not pled facts to demonstrate that it exercised "full dominion and control" necessary to establish title to the Valles Caldera between 1860 and 2000. Resp. Br. at 47-48. Second, according to the United States, similar to the creation of the Jemez Forrest Reserve in 1905, the passage of the Preservation Act extinguished whatever claim to aboriginal title that existed. See Resp. Br. at 48-49. Third, the United States argues that aboriginal title prevails only against parties other than the United States. See Resp. Br. at 49-50. The United States concludes that a ruling in Jemez Pueblo's favor would upset Congress' will -- to ensure that the Valles Caldera be accessible to the public, and to the religious and cultural uses of "numerous Native American groups." Resp. Br. at 51.
c. Jemez Pueblo's Reply.
Jemez Pueblo replies by reasserting that Judge Brack erred when he failed to address its subject-matter jurisdiction under the OTA's sovereign immunity waiver, which, according to Jemez Pueblo, is the only waiver of immunity and source of jurisdiction upon which Jemez Pueblo relies on in its Complaint. See Reply Brief of Appellant Pueblo of Jemez at 10, filed September 3, 2014 (Doc. 01019304554 on the Tenth Circuit's docket)("Reply Br.") at 10. Furthermore, argues Jemez Pueblo, Judge Brack should have used his "inherent authority" as a United States District Judge to decide when the claim against the United States accrued. Reply Br. at 10 (citing Petrella v. Brownback,
Jemez Pueblo further argues that Judge Brack erred by deciding the factual merits of its claim under rule 12(b)(1) in reliance on two flawed United States' arguments -- that Jemez Pueblo's prior claim before the ICC and monetary payment preclude Jemez Pueblo's title claim to the Valles Caldera, and that Jemez Pueblo's claim accrued before 1946 -- both of which "demonstrate the impropriety of dismissal under rule 12(b)(1) based on jurisdiction instead of full consideration of the merits of the claim at trial or on summary judgement. Reply Br. at 15-16. Moreover, Jemez Pueblo contends that the United States neither addresses nor contests "basic concepts of property law" differentiating between a property interest and accrual of a claim, and between litigation to protect existing title and litigation seeking compensation for a taking. Reply Br. at 16-17. Jemez Pueblo adds that any ruling under rule 12(b)(6) should have been made on an adequate factual record and not dismissed at the early stages of the proceedings, because Jemez Pueblo's Complaint alleges sufficient facts to survive a motion to dismiss. See Reply Br. at 17-18. These facts, according to Jemez Pueblo, confirm that Jemez Pueblo's aboriginal title remained intact between 1860 and 2000, that the Preservation Act did not extinguish Indian Title, and that Jemez Pueblo has a legal right to defend its title against the United States' adverse claims or actions, all of which show that the Complaint is legally sufficient to survive a motion to dismiss. See Reply Br. at 18-23.
Jemez Pueblo repeats its argument that Judge Brack further erred when he held that the ICCA provides the exclusive remedy for unextinguished aboriginal land claims, because the ICCA is remedial legislation for takings and Jemez Pueblo had not suffered a taking when Congress passed the legislation in 1946. See Reply Br. at 25-26. Jemez Pueblo further argues that the United States, in alleging that Jemez Pueblo could have brought its claim before the ICC, fails to distinguish between extinguished and unextinguished title, as the only aboriginal title claims that Jemez Pueblo brought to the ICC were those that were extinguished before 1946. See Reply Br. 29-30. Jemez Pueblo argues that neither the evidence nor the law supports the United States' assertion that Jemez Pueblo did not "occupy" the land in the nineteenth century, specifically because the Surveyor-General was not tasked with determining whether the lands were vacant and because the Surveyor-General's mandate did not include adjudication of aboriginal land claims. Reply Br. at 31. Moreover, Jemez Pueblo argues that the Surveyor-General's use of the term "vacant" meant only that he "had determined that the land was not claimed pursuant to any land grant," and its use was not based on any physical land inspection. Reply Br. at 33. Furthermore, Jemez Pueblo's aboriginal title is not inconsistent with the title granted to the Baca heirs, according to Jemez Pueblo and contrary to the United States assertion, because grants to individuals by the United States do not extinguish aboriginal title. See Reply Br. at 35 (citing United States ex rel. Chunie v. Ringrose,
Jemez Pueblo also argues that Judge Brack should have considered New Mexico law to determine when Jemez Pueblo's claim accrued. See Reply Br. at 40 (citing Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation,
6. The Tenth Circuit's Decision.
The Tenth Circuit concluded that Judge Brack erred in dismissing Jemez Pueblo's quiet title claims. See Pueblo of Jemez v. United States,
After providing a detailed history of aboriginal rights, the Tenth Circuit first turned to the question of subject-matter jurisdiction. See
had a claim against the United States which, as a matter of law, accrued before August 13, 1946 ... then the district court was correct in holding the claim barred by ICCA § 12 and concluding that it lacked subject matter jurisdiction. If we cannot determine as a matter of law that there was a pre-1946 claim against the government, then the claim is not facially barred by § 12 of the ICCA.
Pueblo of Jemez v. United States,
The Tenth Circuit also rejects the United States' assertion that Jemez Pueblo's claim to "actual, exclusive, and continuous" use of the Valles Caldera is "flatly inconsistent" with the Surveyor-General's finding that the land was "vacant," because such an assertion "conflates the factual merits question of establishing aboriginal possession with the jurisdictional question on appeal of when a claim actually accrued." Pueblo of Jemez v. United States,
The United States' argument that the 1860 Act evidenced Congressional intent to effect "absolute and unconditional" transfer not subject to preexisting interests also failed to persuade the Tenth Circuit, because, according to the Tenth Circuit, "the [Supreme] Court has never held that a grant needs to contain specific language stating the land remains subject to aboriginal title." Pueblo of Jemez v. United States,
In addressing the United States' argument that the Baca heirs' use of the Valles Caldera is a cloud on title sufficient to trigger accrual against the United States in 1860, the Tenth Circuit counters that simultaneous occupancy and use of land pursuant to fee title, and aboriginal title, can occur, because the nature of Indian occupancy differs significantly from non-Indian settlers' occupancy. See Pueblo of Jemez v. United States,
it is easy to see how the Surveyor General may have mistakenly believed the lands were vacant even if they were being used by the Jemez for hunting, fishing, and other such activities. Similarly, it is also easy to see how a peaceful and private Indian pueblo might have used portions of this large area of land for its traditional purposes while one agreeable rancher was using portions of it for grazing livestock.
Pueblo of Jemez v. United States,
The Tenth Circuit notes, however, that, to establish on remand its right of aboriginal occupancy to the Valles Caldera "in 1860 and thereafter," Jemez Pueblo "must show 'actual, exclusive, and continuous use and occupancy for a long time.' "
must show, as it alleges in its Complaint, that the Jemez people have continued for hundreds of years to use the Valles Caldera for traditional purposes, including hunting, grazing of livestock, gathering of medicine and of food for subsistence, and the like. As the cases make clear, if there was actually substantial interference by others with these traditional uses before 1946, the Jemez Pueblo will not be able to establish aboriginal title. In that circumstance, moreover, the Pueblo would be barred by the ICCA statute of limitations for failing to bring a claim before the ICC.
*1079The Tenth Circuit notes that gradual taking by the United States can extinguish aboriginal title. See
[a]t this point in the current proceedings, neither party has had the opportunity to offer evidence about whether anyone has actually interfered with the Jemez Pueblo's traditional occupancy and uses of the land in question here, before or after 1946. In sum, on the present record, we cannot say that either the Baca grant or use of the land by the Baca heirs or their successors establish as a matter of law that the Jemez Pueblo had a pre-1946 claim against the government under the ICCA.
The Tenth Circuit clarifies its holding in Navajo Tribe of Indians v. New Mexico by distinguishing the claim in that case from Jemez Pueblo's current claim in two respects, thereby rejecting the United States' assertion that the case is "directly on point." Pueblo of Jemez v. United States,
The Tenth Circuit next rejected the United States' ICCA § 22 argument that the compensation which Jemez Pueblo received in the Zia I-IV litigation foreclosed its claim to the Valles Caldera. See Pueblo of Jemez v. United States,
there is no evidence the Pueblo had a claim against the United States prior to 1946 with respect to the land involved in this action, we disagree with the government that the Jemez Pueblo could have brought its current claims before the ICC in the prior litigation. The government's res judicata argument fails because the Jemez Pueblo's current claim is a quiet title action to establish that its *1080aboriginal title to different land has not been extinguished.
As to the United States' alternative argument that Jemez Pueblo's Complaint fails to allege facts sufficient to establish aboriginal title, and should therefore be dismissed under rule 12(b)(6), the Tenth Circuit holds that the Complaint's description of Jemez Pueblo's use of the Valles Caldera over the past 800 years "provides sufficient detail to put the government on notice of its claim of aboriginal title." Pueblo of Jemez v. United States,
Finally, the Tenth Circuit rejects the United States' contention that the Preservation Act extinguishes aboriginal title "as a matter of law," because "nowhere in the Preservation Act did Congress say it intended to extinguish aboriginal title. Rather, ... one of the purposes of the Act was to preserve the cultural and historic value of the land ... while avoiding interference with 'Native American religious and cultural sites.' " Pueblo of Jemez v. United States,
7. Jemez Pueblo's MIL 1.
Jemez Pueblo argues that all evidence of land use by other than Jemez Pueblo after 1948 is irrelevant to whether Jemez Pueblo holds continuing aboriginal title to the Valles Caldera. See MIL 1 at 3. Jemez Pueblo contends that, if it can show that it established aboriginal title through the exclusive use and occupancy of the Valles Caldera, then
the only remaining issue before the Court will be whether the Pueblo's aboriginal Indian title was ever extinguished by an act of Congress. If the Court feels the showing has not been made, then extinguishment is not an issue. Either way, evidence by use of others after 1848 will be irrelevant.
MIL 1 at 3. Jemez Pueblo asserts that "expert testimony and other evidence will prove that Jemez Pueblo established aboriginal Indian title in the Valles Caldera between the thirteenth and eighteenth centuries by exclusive use and occupancy 'for a long time.' " MIL 1 at 3 (quoting Sac & Fox Tribe of Indians of Okl. v. United States,
In discussing the law of Indian title, Jemez Pueblo notes that, because of the ICC's structure and jurisdictional limitations, *1081the ICC often based its liability findings on alleged takings incompatible with the law of extinguishment of aboriginal title as stated in Santa Fe and other controlling Supreme Court decisions. See MIL 1 at 5. Jemez Pueblo recites several additional Supreme Court cases that discuss the inviolable nature of aboriginal title. See MIL 1 at 5-6.
Jemez Pueblo argues that the Indian Trade and Intercourse Act,
Jemez Pueblo argues that the ICC and Court of Claims findings of Indian title takings and extinguishment are "absolutely incompatible" with existing Supreme Court precedent "in countless decisions since the founding of the Republic." MIL at 9. It follows, according to Jemez Pueblo, that, given this incompatibility, the Court should not follow rulings on aboriginal title extinguishment authorized in the "Article I Court of Claims." MIL 1 at 9. Cases exploring the establishment of Indian title, on the other hand, "are an important addition to the analysis performed by Article III Courts." MIL 1 at 9. Because the ICC was limited to adjudicating compensation for Congressionally authorized extinguishment in the years preceding 1946, asserts Jemez Pueblo, extinguishment analysis is irrelevant to the analysis that present-day Article III courts perform. See MIL 1 at 9-10. Jemez Pueblo notes that the ICC was prone to conclude that takings occurred, because, in the 1940s, "it was widely believed that tribes would soon pass out of existence and be fully assimilated into the dominant society." MIL 1 at 10. Jemez Pueblo argues that, given this political climate, together with "contingent compensation of the claims attorneys, almost no lawyer was motivated to prove continuing Indian title," leading to "spurious" takings claims that provide no guidance to the Court. MIL 1 at 10.
Jemez Pueblo cites a number of ICC cases which describe "methods" of extinguishment based on "tacit stipulations of counsel for both sides that a taking occurred," thereby leaving the ICC to decide only when such taking occurred, which was important for compensation and "counsel's contingent fee." MIL 1 at 11. Jemez Pueblo argues that, "[i]n essence, the ICC and the Court of Claims allowed counsel to make up the law to suit their mutual objectives -- resolution of the claim for the lawyers for the United States, and payment of fees to counsel for the plaintiff tribe." MIL 1 at 12. Jemez Pueblo highlights four "egregious examples" of "non-takings" that resulted in ICC compensation and subsequent citations "as precedent *1082for the imaginary 'takings' which were the basis of liability": Western Shoshone Identifiable Group v. United States, 11 Ind. Cl. Comm. 387 (1962); Zia I-IV; Gila-River Pima-Maricopa Indian Cmty. v. United States, 24 Ind. Cl. Comm. 301 (1970), aff'd,
Jemez Pueblo argues that Mr. Cohen, whom the Tenth Circuit "favorably cited" in this case, did not believe that all ancestral Indian lands had been taken. MIL 1 at 21. Jemez Pueblo notes that, after leaving the DOI, Mr. Cohen drafted ICC petitions for several Pueblos, all of which "denied that all Indian title outside of established reservation boundaries had been extinguished." MIL 1 at 21-22 (citing Richard W. Hughes, Indian Law,
Jemez Pueblo contends that, once established, neither Indian nor non-Indian trespass, nor federal interference, can extinguish aboriginal title, "short of conquest,"
*1083which has not been alleged in this case. See MIL 1 at 22. For this reason, according to Jemez Pueblo, cases where counsel for both parties presumed a taking of Indian title are not applicable to the Court's analysis in this case. See MIL 1 at 23. Instead, Jemez Pueblo asserts that the Court should look to "controlling precedent established by Article III Courts," which is "clear in its requirement that Congressionally unauthorized use, transfer, occupation and even seizure of aboriginal Indian title lands by federal administrative fiat and non-Indian interference with Indian use and occupancy simply does not, and cannot, effect an extinguishment of aboriginal Indian title." MIL 1 at 23 (citing Pueblo of Jemez v. United States,
Jemez Pueblo argues that United States v. Pueblo of San Ildefonso and Zia I-IV are not precedent for a claim that non-Indian or Indian trespass can extinguish aboriginal title, because those cases involve fictitious takings and the Tenth Circuit in this case "confirmed existing Article III Court precedent holding that adverse administrative action does not compromise Indian title." MIL at 23-24 (citing Pueblo of Jemez v. United States,
In light of its interpretation of the Tenth Circuit's opinion in this case, Jemez Pueblo argues that the Court should exclude general evidence beyond that which is relevant to extinguishment, because the only relevant evidence that the Court should consider is evidence showing that a sovereign extinguished Jemez Pueblo's aboriginal title. See MIL 1 at 25. It follows, according to Jemez Pueblo, that, because the United States gained control of the Valles Caldera in 1848, and because Article III courts "have never wavered from the requirement that only Congress can extinguish aboriginal title," the only relevant evidence is evidence related to the period prior to 1848. MIL 1 at 25. According to Jemez Pueblo, "[t]here is no such evidence." MIL 1 at 25. In so arguing, Jemez Pueblo contends that "all testimony by the United States['] proposed expert Dr. Terence Kehoe must be excluded," because
Dr. Kehoe's proposed testimony does not have a direct and demonstrable connection to the issue of aboriginal Indian title because it concerns use of the lands in question from 1863 to the present. None of his proposed testimony goes to the issue of Congressional action taken to extinguish the Jemez Pueblo's title. His proposed testimony therefore is irrelevant, and any probative value it might have is substantially outweighed by a danger of confusing the issues, undue delay and wasting time.
MIL 1 at 26. Jemez Pueblo notes that the specifics of Dr. Kehoe's proposed testimony, the majority of which "relates to the period between 1918 and 2000," to include "his opinion that other Indians sometimes entered the area." MIL 1 at 26. Jemez Pueblo concludes that "[n]one of this evidence in any way addresses Congress or Congressional action. It therefore is irrelevant ... and should be excluded." MIL 1 at 27.
8. The United States' Response to MIL 1.
The United States responds that Jemez Pueblo's arguments fail, because the *1084Tenth Circuit instructs the Court to determine whether Jemez Pueblo's use of the Valles Caldera is exclusive as to other Tribes and whether Jemez Pueblo's use suffered interference after Congress granted the land to the Baca heirs in 1860. See United States' Memorandum in Opposition to Plaintiff's Motion in Limine at 7, filed August 31, 2018 (Doc. 249)("MIL 1 Response"). The United States notes two central questions that the Tenth Circuit identified: first, whether Jemez Pueblo can establish that it "exercised aboriginal occupancy of the Valles Caldera in 1860 and afterward," and, second, whether Jemez Pueblo's aboriginal title "was ever extinguished by treaty, sword, purchase, by the exercise of complete dominion adverse to the right of occupancy, or by other means." MIL 1 Response at 7 (citing Pueblo of Jemez,
The United States acknowledges that the Tenth Circuit "held that the grant of the Valles Caldera to the Baca family, without more, did not extinguish aboriginal title to the land, assuming the Jemez maintained Aboriginal possession at the time." MIL 1 Response at 7-8 (citing Pueblo of Jemez,
The United States rejects Jemez Pueblo's assertion that "[w]hether non-Indians (or Indians) interfered with [Jemez Pueblo's] continuing use and occupancy is not an issue," arguing instead that a Tribe which physically abandons land has lost aboriginal title. MIL 1 Response at 9. The United States adds that Jemez Pueblo does not provide argument for its assertion that use by other Tribes after 1848 is irrelevant, and references reports that show "abundant evidence" of the Pueblos' of Zia, Santa Ana and Jemez joint use "for many centuries." MIL 1 Response at 10-11. Moreover, according to the United States, "it is a matter of common sense that worship and use by other Tribes in recent times (i.e., since the mid-19th Century) is evidence of similar usage in earlier times, particularly where the usage is religious and therefore the subject of centuries-old traditions and beliefs." MIL 1 Response at 11.
The United States argues that Jemez Pueblo's MIL 1 is "flatly inconsistent" with the Tenth Circuit's remand decision, because Jemez Pueblo is asking the Court to ignore the exact evidence that the Tenth Circuit instructed the Court to obtain. MIL 1 Response at 11-12 (citing Pueblo of Jemez,
*1085The United States contends that the Kehoe Report documents in detail how Jemez Pueblo's use of the Valles Caldera was severely restricted during the land's 140 years of private ownership under the Baca heirs and their successors-in-interest. See MIL 1 Response at 13. Moreover, according to the United States, Jemez Pueblo has already admitted to such constraint. MIL 1 Response at 13. Specifically, asserts the United States, the Kehoe Report highlights how eighteen Pueblos sued the "Energy Department" and, in the process, all eighteen Pueblos -- including Jemez Pueblo -- "admitted that they 'do not contest the ownership of -- nor do they seek any interest in -- [the Dunigan's] land.' " MIL 1 Response at 13 (quoting Pl.s' Resp. to Intervention Mot. of Dunigan Enters., Jemez v. Sec'y of Energy, 81-cv-113, at 2 (D.D.C. Nov. 18, 1981) ). The Kehoe Report also discusses how the Baca heirs' successors-in-interest restricted Jemez Pueblo animal hunting, grazing, and religious pilgrimage in the Valles Caldera, all of which, according to the United States, addresses the Tenth Circuit's directives on remand. See MIL 1 Response at 14-15.
The United States argues that Jemez Pueblo's analysis of relevant caselaw is "deeply flawed," beginning with Santa Fe, which the United States asserts is distinct from this case, because it involves the forcible removal of a Tribe to a reservation from its ancestral land and not actual interference by private land owners. MIL 1 Response at 15-16. What is relevant from Santa Fe, argues the United States, is the Supreme Court's holding that the Tribe surrendered aboriginal title to its non-reservation land once the Tribe requested and received reservation land elsewhere. See MIL 1 Response at 16 (citing Santa Fe,
it is perfectly possible for Jemez to "relinquish[ ] tribal rights in lands," ... or for other tribes to transform exclusively-held land into jointly-held land, [and that] evidence that other tribes routinely used the Valles Caldera after 1848 could well establish that whatever aboriginal interests Jemez may have once had in the Caldera have been lost.
MIL 1 Response at 16 (quoting Santa Fe,
The United States accuses Jemez Pueblo of trying "to sweep under the rug" all of the Tenth Circuit's cited caselaw which holds that "federal conveyance of land to private parties, and encroachment on traditional Tribal use, can evidence extinguishment of aboriginal title." MIL 1 Response at 16. The United States contends that, of the four cases which Jemez Pueblo cites as "egregious examples" of "non-takings," the first three are not among those which the Tenth Circuit relies on in this case. MIL 1 Response at 17. Furthermore, United States v. Pueblo of San Ildefonso, the one Court of Claims case that both Jemez Pueblo and the Tenth Circuit discuss, is "examined at considerable length" in the Tenth Circuit's opinion and "identified as controlling." MIL 1 Response at 17.
The United States argues that the extinguishment analysis performed by the ICC and Court of Claims is not "beneath the dignity of an Article III court," as Jemez Pueblo suggests, but rather the "very line of cases" that the Tenth Circuit has asked the Court to consider. MIL 1 Response at 17-18. For example, Jemez Pueblo argues that, consistent with its analysis of United States v. Pueblo of San Ildefonso, the Tenth Circuit "specifically instructed that if the Baca grant (and subsequent transfers) resulted in actual interference with Jemez's use of the Valles Caldera, the Pueblo's aboriginal title claim fails." MIL 1 Response at 18. The United States argues *1086that, contrary to Jemez Pueblo's assertion, the quoted language in the Tenth Circuit's opinion is not dicta; "[i]t is the law of the case." MIL 1 Response at 19. The Court is therefore obliged, according to the United States, to follow "all legal rules and principles identified by the appellate body." MIL 1 Response at 19 (citing Bryan A. Garner et al., The Law of Judicial Precedent 459 (2016)("When a case has been heard and determined by an appellate court, the legal rules and principles laid down as applicable to it bind the trial court in all further proceedings in the same lawsuit. They cannot be reviewed, ignored, or departed from.") ).
9. Jemez Pueblo's Reply in Support of MIL 1.
Jemez Pueblo replies that the United States conflates the important element to establish aboriginal title -- exclusive use and occupancy -- with the elements required to maintain or extinguish that title, "thereby fatally confusing the analysis required for the latter two." Plaintiff Pueblo of Jemez's Reply in Support of Motion in Limine to Exclude Certain Evidence at 1, filed September 12, 2018 (Doc. 261)("MIL 1 Reply"). The Court, therefore, argues Jemez Pueblo, should admit only evidence of activity after 1848 that is relevant either to loss of aboriginal title by abandonment or to Congressional extinguishment. See MIL 1 Reply at 1. Jemez Pueblo adds that it has not assumed that aboriginal title has been proven, contrary to the United States' assertions, but rather that it will present such evidence at trial. See MIL 1 Reply at 2.
Jemez Pueblo contends that although the United States concedes that only treaty, purchase, conquest, or the exercise of complete dominion and control may extinguish aboriginal title, the United States does not claim that its evidence of use after 1860 goes to any of these extinguishment methods. See MIL 1 Reply at 2. Jemez Pueblo argues that the United States asserts "a non-existent distinction" between this case and Santa Fe by implying that non-Indian trespass extinguished aboriginal title in that case when the Supreme Court makes clear that the basis for its conclusion that title was extinguished was the Tribe's request for, and acceptance of, a reservation, which the Court characterized as a "quid pro quo" land exchange. MIL 1 Reply at 3-4.
Jemez Pueblo reasserts its position that only surrender, or release and relinquishment, neither of which has occurred in this case, can extinguish aboriginal title. See MIL 1 Reply at 4. Instead of addressing this law, Jemez Pueblo asserts, the United States "cites a single article I case" to support its argument that governmental interference may extinguish aboriginal title. MIL 1 Reply at 5. According to Jemez Pueblo, only an overt Congressional act may extinguish aboriginal title, and, apart from such an act, "Indian title is the best title in the Anglo-American property law system. Once established, it cannot be lost through unauthorized administrative seizure, adverse possession, sale, or tax forfeiture. It is good as against all but the sovereign." MIL 1 Reply at 5 (citing Oneida Indian Nation of N.Y. State v. Oneida Cnty.,
Jemez Pueblo argues that ICC caselaw is inapplicable to this "Article III Court's" extinguishment analysis, because "Article I courts are inferior tribunals with strictly limited jurisdiction." MIL 1 Reply at 6. It follows, according to Jemez Pueblo, that Article I court decisions cannot be treated as controlling precedent on extinguishment of Tribal property rights and that any such rulings "are of no import in this pending litigation." MIL 1 Reply at 6 (citing United States v. Dann,
Jemez Pueblo notes that the Federal Rules of Evidence allow for expert testimony only when such testimony is relevant and reasserts its position that Dr. Kehoe's testimony is irrelevant, because it will show only that Jemez Pueblo's use of the Valles Caldera was "severely restricted during the land's 140 years of private ownership," which is not the applicable extinguishment standard. MIL 1 Reply at 8. Moreover, Jemez Pueblo argues that Dr. Kehoe "largely admitted at deposition that Jemez Pueblo's use of the lands at issue was continuous, and never abandoned." MIL 1 Reply at 8.
Jemez Pueblo argues that the Tenth Circuit's mandate requires this Court to follow and apply settled Article III court precedent, i.e., precedent holding that to establish its aboriginal title, Jemez Pueblo must prove exclusive use and occupancy, and that to extinguish aboriginal title, Congress must have expressly revoked it. See MIL 1 Reply at 8. Jemez Pueblo contends that the Tenth Circuit is unaware that the Pueblos in United States v. Pueblo of San Ildefonso asserted that their aboriginal title was intact, and sought damages for trespass and breach of trust for failure to protect their use and occupancy -- a position that subsequent claims attorneys, who filed stipulations that transformed the damages claims into fictitious takings claims, later changed. See MIL 1 Reply at 10. Jemez Pueblo argues that, unlike the claim in this case, those cases involve a stipulation that did not require adjudication that title was ever extinguished. See MIL 1 Reply at 10. Jemez Pueblo asserts that the Tenth Circuit's "requirement of perpetual exclusivity ... is, at most, dicta," which encompasses the Tenth Circuit's discussion of the holdings in Zia I-IV, United States v. Pueblo of San Ildefonso, Pueblo of Taos v. United States, and Pueblo of Nambe v. United States. MIL 1 Reply at 10. Moreover, the Tenth Circuit's opinion in this case cannot be read to instruct the Court to take evidence in support of a "gradual taking" theory, argues Jemez Pueblo, because such a theory "is inconsistent with controlling Article III Supreme Court law." MIL 1 Reply at 10-11. Jemez Pueblo concludes that the rule of mandate doctrine is "applied at the sound discretion of the trial court to effectuate the proper administration of justice," and, therefore, the Court should follow "controlling Article III court law" regarding the specific facts required to show extinguishment of aboriginal title, i.e., either Tribal abandonment or plain and unambiguous Congressional action. MIL 1 Reply at 12.
10. The Hearing.
The Court held a hearing on September 14, 2018. See Transcript of Proceedings Pretrial Conference and Motions Hearing at 1:7 (taken September 14, 2018), filed September 21, 2018 (Doc. 277)("Tr."). Jemez Pueblo began by asserting its position that its exclusive use and occupancy of the Valles Caldera "was established prior to Spanish entry ... and that use has been continuous to the present day since pre-history." Tr. at 60:19-23 (Luebben). The United States countered that "the Valles Caldera has never been exclusively owned by anyone." Tr. at 61:5-7 (Dykema). Jemez Pueblo argued that the United States has put "the cart before the horse" in insisting that Jemez Pueblo establish exclusive use and occupancy after 1860 and that, by implication, evidence before 1860 is irrelevant. Tr. at 61:17-18 (Luebben). Jemez Pueblo adds that it will establish exclusive use and occupancy before 1860, and thus the United States evidence is irrelevant. See Tr. at 61:20-22 (Luebben).
*1088Jemez Pueblo explained that this case involves the history of not only aboriginal title and Spanish colonial law, but also the history of the ICC and of Tribal claims going back to the United States' founding. See Tr. at 61:24-62:4 (Luebben). Jemez Pueblo cited to similarities between this case and United States v. Dann, wherein the ICC held that the Western Shoshone Indians lost aboriginal title to their land base "by gradual encroachment of Whites, settlers and others." Tr. at 62:12-14 (Luebben). Jemez Pueblo argued that, as a result of the court's holding in United States v. Dann, the claims attorneys lacked a specific taking date and therefore stipulated to July 1, 1872, a date on which, Jemez Pueblo argued, "nothing ever happened .... There were hardly any White people around in the great basin, and it was a hell of a hot day. Other than that, there was nothing to hang the notion of extinguishment on." Tr. at 62:14-22 (Luebben). Jemez Pueblo contended that it was the payment of the award that extinguished the title, and not anything that happened in the nineteenth century. See Tr. at 63:11-14 (Luebben). Jemez Pueblo explained that this process was repeated for many other Tribes, and argued that, "but for the proceedings and awards in the Indian Claims Commission, Indian title to hundreds of millions of acres in the western United States was otherwise never extinguished." Tr. at 63:7-10 (Luebben). Jemez Pueblo further questioned the legitimacy of ICC takings findings:
And rather than providing a remedy for ancient wrongs as Congress promised when it enacted the Indian Claims Commission, the ICC became an engine to quiet title to Indian lands in favor of the United States and on the cheap. The ICC could not quiet title in favor of tribes and return land to their control, it could only award compensation. And the attorneys were paid a contingent fee from whatever award they obtained. They were, thus, incentivized to prove the loss of as much land as possible in order to maximize their fee.
Tr. at 63:17-25 (Luebben). This process, Jemez Pueblo explained, "has created a veritable fountain of confusion around the issues of aboriginal title," leading to Tribal members' ignorance of their own rights. Tr. at 64:1-6 (Luebben).
Jemez Pueblo argued that, ICC aside, "Indian title is the best title in Anglo-American property law," because it is "not subject to taxation, tax forfeiture, adverse possession, improvident sale, condemnation, or involuntary extinguishment without Congressional action." Tr. at 64:9-13 (Luebben). Jemez Pueblo asked the Court to view this case through the lens of property law -- not Indian law -- and specifically requested that the Court observe the "ordinary rules of property conveyance," which require "an actual conveyance, not trespass or gradual encroachment." Tr. at 64:19-65:4 (Luebben). Jemez Pueblo repeated that the principle of adverse possession does not apply to aboriginal title. See Tr. at 65:4-5 (Luebben). Jemez Pueblo asserted that only the United States can convey aboriginal title, and only after Congressional extinguishment or Tribal abandonment. See Tr. at 65:5-8 (Luebben). Jemez Pueblo further requested that the Court respect the rules of extinguishment of aboriginal title as "incorporated into the common law by the Article III courts." Tr. at 65:8-10 (Luebben). Jemez Pueblo averred that the ICC's gradual encroachment approach to takings "is an egregious aberration of Anglo-American property law that reflects the profoundly racist assumption that permeated the Indian Claims Commission proceedings and implemented the dominant cultural imperative that Indians must lose their lands." Tr. at 65:11-18 (Luebben).
*1089Jemez Pueblo argued that this case consists of only three questions: (i) whether Jemez Pueblo established aboriginal title by exclusive use and occupancy before 1860; (ii) whether Jemez Pueblo has continued to use and occupy the Valles Caldera into the present day, i.e., whether Jemez Pueblo has abandoned its aboriginal title; and (iii) whether Congress has extinguished Jemez Pueblo's aboriginal title. See Tr. at 65:21-66:1 (Luebben). According to Jemez Pueblo, further evidence regarding whoever else may have used the Valles Caldera "only confuses the issue." Tr. at 66:4-5 (Luebben).
Jemez Pueblo asserted that the Tenth Circuit's opinion in this case reveals the applicable caselaw, principally the law of aboriginal title extinguishment, which the Supreme Court outlines in Santa Fe, and of which Mr. Cohen was the architect. See Tr. at 66:17-67:4 (Luebben). Jemez Pueblo discussed Mr. Cohen's stature as a scholar of Indian law, his contributions to the ICCA, and his principled refusal to represent Tribes before the ICC. See Tr. at 67:4-25 (Luebben). Jemez Pueblo explained how, under Santa Fe, there are only four ways to extinguish aboriginal title: "Plain and unambiguous Congressional action; a treaty of cession, voluntary by the Tribe; purchase pursuant to a Congressional act under a treaty; and intentional Tribal abandonment." Tr. at 68:6-10 (Luebben).
Jemez Pueblo rejected the United States' proposition that Santa Fe held that trespass by White settlers extinguished the Tribe's aboriginal title, arguing instead that the suit was to enjoin interference with the Tribe's unextinguished aboriginal title. See Tr. at 68:12-21 (Luebben). In further rejecting the United States' reliance on the ICC gradual takings theory, Jemez Pueblo asserted that ICC rulings were administrative in nature and therefore inferior to Article III courts, especially the Supreme Court, and also guided by questionable motives: "[T]he claims attorneys in order to get paid; the United States in order to quiet title." Tr. at 68:22-69:17 (Luebben).
Jemez Pueblo noted that every ICC award for an alleged taking was based either on an express or an implied stipulation of extinguishment. See Tr. at 70:17-19 (Luebben). Jemez Pueblo referred the Court to the original petition in Pueblo of San Ildefonso v. United States, which Mr. Cohen drafted, that seeks compensation not for a taking but for damages for the failure of the United States to abide by its trust obligations to protect the Pueblo's land, and for trespass by non-Indians, including the United States. See Tr. at 70:25-71:8 (Luebben). Jemez Pueblo noted that, after Mr. Cohen's death in 1953, other attorneys filed stipulations for the San Ildefonso, Santa Clara, and Santo Domingo Pueblos, all of which stated -- for the first time -- that title had been extinguished. See Tr. at 71:11-15 (Luebben). Jemez Pueblo asserted that the Pueblo's governing council never approved the stipulation in the matter of Pueblo of Santo Domingo v. United States, although the Pueblo was unable to set aside the stipulation in subsequent litigation.11 See Tr. at 71:20-23 (Luebben).
Jemez Pueblo noted that the takings in these cases were not adjudicated judicial findings, and that the only adjudication was to determine United States' liability based on the takings date. See Tr. at 71:24-72:2 (Luebben). Jemez Pueblo added that the plaintiffs in these cases wanted a later date to maximize the historical appraisal value, while the United States *1090"wanted an earlier date to minimize compensation." Tr. at 72:2-4 (Luebben). Jemez Pueblo argued that this process reached "its height of absurdity" in Western Shoshone Identifiable Group v. United States and in Gila River Pima-Maricopa Indian Community v. United States, wherein the Court of Claims determined that the takings were effectuated by "gradual encroachment of White settlers" and "quote, 'a fit of absentmindedness,' unquote, by the trustee." Tr. at 72:4-12 (Luebben). Jemez Pueblo referred the Court to the 1978 DOI memorandum under which "any analysis of the Taylor Grazing Act, its history and purpose, brings one to the ultimate conclusion that neither the Taylor Grazing Act nor its implementation can operate to extinguish Indian title." Tr. at 72:23-73:2 (Luebben).
Jemez Pueblo rejected the United States' contention that the Tenth Circuit's opinion in this case mandates application of the ICC gradual encroachment decisions, because the ICC lacked -- and never claimed to have -- jurisdiction to extinguish title on its own authority. See Tr. at 73:3-13 (Luebben). Jemez Pueblo argued that the decision in United States v. Dann supports its position, because, in that case, the Supreme Court held that the Tribe's land claims "were not terminated until the preclusion provision of Section 22(a) of the Indian Claims Commission Act was triggered by payment of the ICC award." Tr. at 73:14-18 (Luebben). Jemez Pueblo notes that this decision is distinct from a quiet title action, whereby a court's decree concludes the title adjudication, because the litigation in United States v. Dann did not end until the award was paid, and even then the Tribe's claim to aboriginal title was precluded -- not explicitly extinguished. See Tr. at 73:14-24 (Luebben). It follows, argued Jemez Pueblo, that "if the United States had ever opposed a tribal allegation of a taking on the merits ... the ICC would have lacked jurisdiction to adjudicate that title." Tr. at 74:2-5 (Luebben).
Jemez Pueblo asserted that the extent of the Tenth Circuit's holding is that neither the 1860 Baca grant nor the 2000 Preservation Act extinguished aboriginal title. See Tr. at 74:10-12 (Luebben). Therefore, according to Jemez Pueblo, because the issue whether trespass or interference can extinguish aboriginal title was not before the Tenth Circuit, the Court is not required to take evidence of interference with Jemez Pueblo's use and occupancy by the Baca heirs, "or even other Indians." Tr. at 74:12-17 (Luebben). Jemez Pueblo argued that the only remaining issues are whether Jemez Pueblo established aboriginal title before 1860 and whether Congress extinguished, or Jemez Pueblo abandoned, that title. See Tr. at 74:8-10 (Luebben). Jemez Pueblo noted that, should it prevail in this suit, it has proposed that the Valles Caldera "be made into the first tribal cultural national park with aboriginal title held by the Pueblo and a co-management agreement with the National Park Service, whereby it would continue to be fully opened to the public and all pre-existing rights would be respected." Tr. at 74:20-25 (Luebben).
The Court questioned Jemez Pueblo about its statement that this is a property law case and not an Indian law case, because the cases in the table of authorities in MIL 1 struck the Court as being cases of important Indian law and not of property law. See Tr. at 76:1-7 (Court). Jemez Pueblo responded that the cases which the Court references are "property cases that deal with aboriginal title," which is unique, in part, because aboriginal title is subject to extinguishment, and the Fifth Amendment to the United States Constitution does not protect that title. Tr. at 76:8-13 (Luebben). Jemez Pueblo further explained that this case is a property case, *1091because, once Jemez Pueblo establishes aboriginal title, issues of trespass or interference become irrelevant given that the only question is whether Jemez Pueblo abandoned -- or Congress extinguished -- its title. See Tr. at 76:15-19 (Luebben). Moreover, attention to chain of title is important, asserted Jemez Pueblo, because nothing in Anglo-American property law dictates that trespass can extinguish aboriginal title and effect conveyance to the United States. See Tr. at 76:19-23 (Luebben). Jemez Pueblo concluded that this case is a "very straightforward" property law case: if it cannot establish aboriginal title, "then the case is over," and if it can establish aboriginal title, "then the interference is merely trespass, and the only question is whether Congress extinguished it or the Pueblo abandoned it." Tr. at 76:25-77:8 (Luebben).
The United States responded that the Tenth Circuit's opinion in this case is dispositive as to Jemez Pueblo's requests in MIL 1, because, although the Tenth Circuit held that the 1860 Baca grant could not per se extinguish aboriginal title, it remanded the case to determine whether aboriginal title ever existed, and, assuming that such title did exist, whether the Baca grant resulted in substantial interference with Jemez Pueblo's use of the Valles Caldera. See Tr. at 77:23-78:19 (Dykema). The Court asked the United States whether the Tenth Circuit's decision means that Jemez Pueblo can have aboriginal title while the Baca heirs used the Valles Caldera as a ranch. See Tr. at 78:20-23 (Court). The United States responded in the affirmative and referred the Court to the Tenth Circuit's discussion of how aboriginal title to the Valles Caldera could persist if, for example, "a peaceful and private Indian pueblo ... used portions of this large area of land for its traditional purposes, while one agreeable rancher was using portions of it for grazing livestock." Tr. at 79:10-13 (Dykema). The Court asked the United States whether, according to its analysis of the Tenth Circuit's opinion, the Court must "look at what occurred after 1860 to determine whether ... the Bacas having [the Valles Caldera] allowed [Jemez Pueblo] to continue to have title." Tr. at 80:2-5 (Court). The United States responded in the affirmative and stated that this case "was remanded specifically for this Court to take that evidence." Tr. at 80:6-7 (Dykema). The United States quoted from the Tenth Circuit's opinion in this case that whether Jemez Pueblo can prove that it had aboriginal title "in 1860 and thereafter is a fact question to be established on remand," and that, to establish aboriginal title, Jemez Pueblo "must show actual exclusive and continuous use and occupancy for a long time." Tr. at 80:9-19 (Dykema). The United States conceded that the exclusivity requirement applies only to other Tribes' use and not to "the whole world," as it had previously argued on appeal. Tr. at 80:23-24 (Dykema).
The United States asserted that Jemez Pueblo cannot satisfy the continuous use and occupancy requirement "if the Bacas or their successors, the Bonds or the Dunigans, substantially interfered with ... the traditional uses of the property." Tr. at 81:2-8 (Dykema). Moreover, averred the United States, if there is evidence of others' substantial interference with Jemez Pueblo's traditional uses of the Valles Caldera before 1946, not only can Jemez Pueblo not establish aboriginal title but its claim would also be time-barred. See Tr. at 81:16-22 (Dykema). Thus, actual interference with traditional occupancy and uses before or after 1946 is the question on remand. See Tr. at 81:24-82:2 (Dykema).
The United States rejected Jemez Pueblo's "low regard" for the ICC and Court of Claims cases that the Tenth Circuit cited, and argued instead that the Tenth Circuit "specifically ruled that the Court of Claims cases on extinguishment provide guidance *1092for the resolution of the case on remand." Tr. at 82:3-13 (Dykema). The United States noted that, although the ICC "typically only had to determine the date on which extinguishment happened," it also had to define extinguishment, which the Court of Claims did when ruling on the ICC decisions that the Tenth Circuit has adopted as "governing authority" in this case. Tr. at 82:14-20 (Dykema). The United States disagreed that the Tenth Circuit's discussion of the ICC and Court of Claims cases is dicta, because "anything in those decisions that provide guidance as to the legal principles to be applied is ... the mandate of the Court." Tr. at 82:21-25. In rejecting Jemez Pueblo's interpretation of United States v. Dann, the United States countered that "the question here is not whether the ICC had the power to extinguish, but ... the ICC's decisions as to what constitutes extinguishment by the federal government." Tr. at 83:1-7 (Dykema). Further support for this position, asserted the United States, is seen in Pueblo of Nambe v. United States and Pueblo of Taos v. United States, wherein the court held that creation of a national park effected extinguishment by "limiting the access and the freedom of access of those pueblos to the land in question." Tr. at 83:8-15 (Dykema). The United States argued that the Tenth Circuit has instructed the Court to take as guidance the ICC and Court of Claims cases which suggest that, contrary to Jemez Pueblo's assertions, aboriginal title does not "continue[ ] ad infinitum unless Congress expressly extinguishes it." Tr. at 83:16-20 (Dykema). The United States added that Jemez Pueblo's position is "at war with common sense," because "it implies that ... aboriginal title continues even if other tribes occupied the land to [Jemez Pueblo's] exclusion, even if [Jemez Pueblo] ceased all use, even if the private owners to whom Congress gave the land put up a fence and precluded all use by [Jemez Pueblo] for 150 years." Tr. at 84:13-21 (Dykema). The United States added that the Indian Nonintercourse Act,
As to Jemez Pueblo's discussion of the mandate doctrine, the United States averred that "the remand to take evidence on substantial interference or not is a part of the Court's mandate, the Tenth Circuit's mandate, as is the Court of Appeals' instruction that the case law of the Court of Claims and the ICC regarding what accomplishes extinguishment is providing guiding law." Tr. at 85:15-19 (Dykema). The United States agreed with Jemez Pueblo that the mandate rule is "nothing more than a specific application of the Law of the Case Doctrine," but added that "the doctrine stands for the proposition that an appellate decision on an issue must be followed in all subsequent trial court proceedings unless [there is] presentation of new evidence or [an] intervening change in the controlling law." Tr. at 85:21-86:6 (Dykema).
The United States argued that this case is not one of gradual encroachment of non-Indian settlers, but rather of "an act by Congress giving this land, in fee, to private parties, and a decision by the Tenth Circuit that if the result of that was substantial interference with [Jemez Pueblo's] traditional use of the property, aboriginal title -- whatever aboriginal title may have once existed is gone." Tr. at 86:9-14 (Dykema). The Court asked whether this reasoning makes sense to the United States. See Tr. at 86:15 (Court). The United States responded *1093in the affirmative, and referred the Court to Pueblo of Nambe v. United States and Pueblo of Taos v. United States, because those cases suggest that, "if the act of Congress results in a substantial encroachment upon that original estate, then Congress has acted in a way to accomplish extinguishment." Tr. at 86:16-24 (Dykema). The Court opined that, although it is inclined to agree with the United States' understanding of the Tenth Circuit's mandate in this case, it is unsure whether it agrees with the Tenth Circuit's analysis of the relevant caselaw. See Tr. at 87:2-5 (Court).
LAW REGARDING ABORIGINAL TITLE
Aboriginal title, or original Indian title, refers to American Indian land occupancy rights premised on exclusive use and occupancy of a particular territory at the time of first European contact, and to an entitlement arising subsequent to such contact under the governing European sovereign's laws, which are derived largely from international law concepts that prevailed before the American Revolution. See Pueblo of Jemez v. United States,
1. Establishment of Aboriginal Title.
Among the ways that American Indian Tribes may acquire real property interests is through possession and exercise of sovereignty,12 and, within the bundle of recognized property rights,13 aboriginal title *1094refers to land claimed by sovereignty, rather than by letters patent or other formal conveyance.14 Aboriginal title preexists the formation of the United States. See Santa Fe,
The Supreme Court consistently has held that Tribes have a "legal as well as just claim to retain possession," of the land that they have historically occupied within the United States. Johnson v. M'Intosh,
Early Supreme Court decisions built the framework for understanding the relationship of the United States to Tribes and Tribal property. For example, in Johnson v. M'Intosh, the Marshall Court16 adopted *1095a rule of international law known as the "discovery doctrine" and explained how that doctrine functions alongside United States law. See
The discovery doctrine invalidated aboriginal title alienation without the European sovereign's consent or the United States' consent, or that of the original thirteen states,17 as successor-in-interest. See Oneida Indian Nation v. Cty. of Oneida,
Three additional Marshall Court opinions address aboriginal title and further elaborate on the nature of Tribal rights to property: Cherokee Nation v. Georgia,
Although refusing to accord American Indians full sovereignty and title over their lands, the Marshall Court cases nevertheless afforded great respect to aboriginal title. See, e.g., Johnson v. M'Intosh,
A Tribe asserting aboriginal title may bring a federal common-law action to enforce ownership rights. See, e.g., Cty. of Oneida v. Oneida Indian Nation,
2. Scope and Limits of Aboriginal Title.
The requirement that aboriginal title be based on possession or occupancy, as opposed to official documentation, raises important questions about the nature and extent of possession required to support aboriginal title. Since the earliest Spanish conquests, opponents of American Indian property rights argued that hunting, gathering, and other uses that involved only occasional human presence were not sufficient to constitute possession. See, e.g., Johnson v. M'Intosh,
In treaties with the United States, the limit of aboriginal title corresponded with the limit of a Tribe's exclusive possession that other Tribes respected, i.e. with a Tribe's national boundaries; therefore, proof of exclusive and continuous occupation of the land determines the boundary of land claimed under aboriginal title.20 See, e.g., United States v. Alcea Band of Tillamooks,
[i]mplicit in the concept of ownership of property is the right to exclude others. Generally speaking, a true owner of land exercises full dominion and control over it; a true owner possesses the right to expel intruders .... True ownership of land by a tribe is called in question where the historical record of the region indicates that it was inhabited, controlled or wandered over by many tribes or groups. Ordinarily, where two or more tribes inhabit an area no tribe will satisfy the requirement of showing such "exclusive" use ....
United States v. Pueblo of San Ildefonso,
The Court of Federal Claims has noted that "the general rule of exclusive use and occupancy is subject to three exceptions: (1) the joint-and-amicable-use exception; (2) the dominated use exception; and (3) the permissive use exception."22 Alabama-Coushatta Tribe of Texas v. United States, No. 3-83,
Originally the Sac and Fox Nation consisted of two separate and identifiable tribes of Indians belonging to the Algonquin stock. Around 1735, due to their mutual hostility and conflict with the French, they formed a close and intimate alliance, politically and socially, so *1099that from thence forward they have been dealt with and referred to as a single nation both in their relationship with other Indian tribes and in treaty negotiations and other matters with the United States.
[t]he [Tribes] did not consider themselves, and were not treated, as a single or closely integrated entity, but rather as separate political groups which were friends or allies (for the most part). Their use of the same lands may have been in common, like much of Indian use of the midwestern and western regions -- but the Commission could properly decide that it was not proved to be truly joint, and therefore that each separate tribe's claim to Indian title would have to be tested on its own distinct basis.
Strong v. United States,
The dominated use exception to the exclusive use rule recognizes that, where another Tribe commonly uses the land with the claimant Tribe, proof of the claimant Tribe's dominance over the other Tribe preserves its exclusive use of the land. See United States v. Seminole Indians of Fla.,
little question that, in their occupation of the land, the Seminoles held a virtual "monopoly." While expert witnesses concede the contemporaneous existence of other Indians in Florida ... these scattered groupings were few and far between, and the record offers no evidence to suggest that Seminole dominion was ever challenged by these vestiges of aboriginal cultures. Instead, the pattern that prevailed was one of cultural assimilation -- the Seminoles simply absorbing these "foreign" elements into their own ranks.
United States v. Seminole Indians of Fla.,
The permissive use exception to the exclusive use rule acknowledges that *1100other Indian Tribes could have "rang[ed] over large portions" of the claimant Tribe's land without defeating the exclusive nature of the claimant Tribe's use, as long as the other Tribes' presence was with the claimant Tribe's permission. Wichita Indian Tribe v. United States,
[t]here is evidence that the Wyandot had given permission to other Indian tribes to use their lands in Ohio, and we think the record, taken as a whole, supports the inference that the Ottawa were in the Sandusky area with the consent of the Wyandot. Permissive use by the Ottawa did not diminish the title of the Wyandot, and by the same token, such use gave the Ottawa no interest in the land.
Strong v. United States,
The Court of Federal Claims has noted that "a claimant tribe's non-exclusive use of one segment of the claim area is not automatically imputed to the whole claim area." Alabama-Coushatta Tribe of Texas v. United States, No. 3-83,
When disputes require the Supreme Court to determine the extent of Tribal lands, the Supreme Court applies the canons of construction applicable to treaties with Indian nations and to statutes regulating Indian affairs.23 See, e.g., *1101Choctaw Nation of Indians v. United States,
3. Extinguishment of Aboriginal Title.
The basic rule governing alienation of American Indian land is that only the United States can extinguish aboriginal title.25 See
*1102Santa Fe,
Although the principle that the United States has the exclusive power to extinguish aboriginal title has remained unchanged, the Supreme Court unequivocally has rejected the view that the process by which the United States extinguishes title is nonjusticiable:
[I]t seems that the Court's conclusive presumption of congressional good faith [in Lone Wolf v. Hitchcock ] was based in large measure on the idea that relations between this Nation and the Indian tribes are a political matter, not amenable to judicial review. That view, of course, has long since been discredited in takings cases.
United States v. Sioux Nation,
Moreover, because aboriginal title is based on proof of continuous possession, a number of cases have held Tribal abandonment can result in the loss of aboriginal title, but only if such abandonment is voluntary.30 See *1104Santa Fe,
Although Congress has the power to extinguish aboriginal title, intent to do so must be "plain and unambiguous," and will not be "lightly implied." Santa Fe,
Notwithstanding the requirement that only Congress can extinguish aboriginal title, the Supreme Court has held that payment of a judgment rendered in a claim for damages is sufficient to effect extinguishment. See United States v. Dann,
*1107Moreover, several courts have held that Congressional acts in anticipation of settlement and public use, and actual settlement, by non-Indians are factors that may effect aboriginal title extinguishment. See, e.g., United States v. Gemmill,
In Plamondon ex rel. Cowlitz Tribe of Indians v. United States, the Court of Claims, when tasked with deciding only whether the lands in question were taken in 1855 or 1863, explained first that the limited settlement by non-Indians on the Cowlitz land up to 1855 was not sufficient to extinguish the Tribe's aboriginal title; settlement was minimal and did not disrupt the Cowlitz way of life, and, in fact, land patents were not issued to claimants on Cowlitz lands until several years after 1855. See
Additional Court of Claims support for aboriginal title extinguishment absent express Congressional intent is seen in Gila River Pima-Maricopa Indian Community v. United States, wherein American Indian claimants -- who had conceded before the ICC that their aboriginal title was extinguished -- argued that, until the enactment of the Taylor Grazing Act of 1934, the only extinguishment of aboriginal title to the claimed lands occurred by the individual entries of settlers, tract by tract, onto the land in the ICC award area. See
faced with a difficult task. Unlike some other cases, there was here no formal cession by the Indians, no express indication by Congress (or its delegate) of a purpose to extinguish at a specified time, and no single act (or contemporaneous series of acts) of the Federal Government which indisputably erased native ownership at one swoop. The Indian appellants say that, in these circumstances, the presumption of the Santa Fe opinion requires the tribunal to hold that there was no general taking at all until some unequivocal action by Congress (such as, they concede but only arguendo, the Taylor Grazing Act of 1934). We think, however, that this is a case in which the history of the award area is such that the Commission could permissibly stop short of an uncontroverted and unmistakable sign from Congress.
The claim for failure to protect aboriginal title in United States v. Pueblo of San Ildefonso arose after the United States created a reservation for thirteen Pueblos on their historic lands, included other Tribal lands in a national forest reserve, and, over many years, granted the Pueblos' remaining lands to non-Indian settlers under the public land laws. See
there are no fine spun or precise formulas for determining the end of aboriginal ownership. Unquestionably, the impact of authorized white settlement upon the Indian way of life in aboriginal areas may serve as an important indicator of when aboriginal title was lost. But such authorized settlement is only one of various factors to be considered in determining when specific lands were "taken." Gila River, supra ,494 F.2d at 1391 ,204 Ct. Cl. at 146 .
United States v. Pueblo of San Ildefonso,
In United States v. Gemmill-- the only United States Court of Appeals case to consider factors other than express Congressional intent as evidence of aboriginal title extinguishment -- members of the Pit River Indian Tribe were arrested for trespass and theft of United States government property after they removed Christmas trees from the Shasta Trinity National Forest. See
Second, the United States engaged in prolonged military confrontation with the Pit River Indians in the 1850s and 1860s, which culminated in a decisive military defeat in 1867. See
*1109The United States then removed the Pit River Indians from their lands by force. See
The exact date on which Indian title has been extinguished is often difficult to determine. (See United States v. Pueblo of San Ildefonso,supra , at 1391.) The four events we have recounted amply illustrate that problem. Any one of these actions, examined in isolation, may not provide an unequivocal answer to the question of extinguishment. However, the activity of the federal government, beginning with the ambiguous Act of 1851 and culminating in the payment of the compromise settlement, has included expulsion by force, inconsistent use, and voluntary payment of compensation agreement. (See Santa Fe,supra ,314 U.S. at 347 ,62 S.Ct. at 252 ,86 L.Ed. at 270 .) This century-long course of conduct amply demonstrates that the Pit River Indian title has been extinguished.
United States v. Gemmill,
RELEVANT LAW REGARDING EXPERT TESTIMONY
"Since the Supreme Court of the United States decided Daubert v. Merrell Dow Pharmaceuticals, Inc., trial courts have had the responsibility to make certain that proffered experts will assist the jury in understanding the evidence and in determining the factual issues it must decide." United States v. Gutierrez-Castro,
1. Rule 702.
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to *1110determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. Rule 702 thus requires the trial court to "determine whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." United States v. Muldrow,
2. The Standard in Daubert v. Merrell Dow Pharm., Inc.
In its gatekeeper role, a court must assess the reasoning and methodology underlying an expert's opinion, and determine whether it is both scientifically valid and relevant to the facts of the case, i.e., whether it is helpful to the trier of fact. See Daubert v. Merrell Dow Pharm., Inc.,
Rule 702 requires the district court to "ensure that any and all scientific testimony or evidence is not only relevant, but reliable." [Bitler v. A.O. Smith Corp.,391 F.3d 1114 , 1120 (10th Cir. 2004) ] (quoting Daubert,509 U.S. at 589 ,113 S.Ct. 2786 ). This obligation involves a two-part inquiry. Id."[A] district court must [first] determine if the expert's proffered testimony ... has 'a reliable basis in the knowledge and experience of his [or her] discipline.' "Id. (quoting Daubert,509 U.S. at 592 ,113 S.Ct. 2786 ). In making this determination, the district court must decide "whether the reasoning or methodology underlying the testimony is scientifically valid ...."Id. (quoting Daubert,509 U.S. at 592-93 ,113 S.Ct. 2786 ). Second, the district court must further inquire into whether proposed testimony is sufficiently "relevant to the task at hand." Daubert,509 U.S. at 597 ,113 S.Ct. 2786
Norris v. Baxter Healthcare Corp.,
Our emphasis on the word "may" thus reflects Daubert's description of the Rule 702 inquiry as a flexible one. Daubert makes clear that the factors it mentions do not constitute a definitive checklist or test. And Daubert adds that the gatekeeping inquiry must be tied to the facts of a particular case.
Kumho Tire Co. v. Carmichael,
In conducting its review under Daubert v. Merrell Dow Pharmaceuticals, Inc., a court must focus generally on "principles and methodologies, and not on the conclusions generated."
*1112Armeanu v. Bridgestone/Firestone N. Am., Tire, LLC, No. CIV 05-0619,
Because the district court has discretion to consider a variety of factors in assessing reliability under Daubert, and because, in light of that discretion, there is not an extensive body of appellate case law defining the criteria for assessing scientific reliability, we are limited to determining whether the district court's application of the Daubert manifests a clear error of judgment or exceeds the bounds of permissible choice in the circumstances .... Thus, when coupled with this deferential standard of review, Daubert's effort to safeguard the reliability of science in the courtroom may produce a counter-intuitive effect: different courts relying on the essentially the same science may reach different results.
Hollander v. Sandoz Pharm. Corp.,
Coming to a firm conclusion first and then doing research to support it is the antithesis of this method. Certainly, scientists may form initial tentative hypotheses. However, scientists whose conviction about the ultimate conclusion of their research is so firm that they are willing to aver under oath that it is correct prior to performing the necessary validating tests could properly be viewed by the district court as lacking the objectivity that is the hallmark of the scientific method.
Once reliability is established, however, it is still within the district court's discretion to determine whether expert testimony will be helpful to the trier of fact. In making that determination, the court should consider, among other factors, the testimony's relevance, the jurors' common knowledge and experience, and whether the expert's testimony may usurp the jury's primary role as the evaluator of evidence.
Ram v. N.M. Dep't of Env't, No. CIV 05-1083,
An untested hypothesis does not provide a scientific basis to support an expert opinion. See Norris v. Baxter Healthcare Corp.,
3. Necessity of Evaluating an Issue Under Daubert v. Merrell Dow Pharm., Inc.
The restrictions in Daubert v. Merrell Dow Pharm., Inc. apply to both "novel" expert testimony and "well-established propositions."
"[W]hen experts employ established methods in their usual manner, a district court need not take issue under Daubert ...." Att'y Gen. of Okla. v. Tyson Foods, Inc.,
*1114ANALYSIS
The Court will deny Jemez Pueblo's MIL 1, because the Tenth Circuit has expressly instructed the Court to consider evidence of use of the Valles Caldera by other than Jemez Pueblo after 1848. In accordance with the Tenth Circuit's mandate, the Court concludes that evidence of use after 1848 is relevant to: (i) whether Jemez Pueblo can establish that it held aboriginal title to the Valles Caldera; and (ii) whether, assuming that Jemez Pueblo can establish that it held aboriginal title, substantial interference effectuated extinguishment of that title. Because the Kehoe Report contains relevant evidence of other than Jemez Pueblo's use of the Valles Caldera, the Court will not exclude the substance of the Kehoe Report.
I. THE TENTH CIRCUIT INSTRUCTS THE COURT TO TAKE EVIDENCE OF USE OF THE VALLES CALDERA AFTER 1848.
The Tenth Circuit expressly instructed the Court to consider evidence whether Jemez Pueblo held aboriginal title after 1848. See Pueblo of Jemez v. United States,
A. EVIDENCE OF USE OF THE VALLES CALDERA AFTER 1848 IS RELEVANT TO WHETHER JEMEZ PUEBLO CAN ESTABLISH THAT IT HOLDS ABORIGINAL TITLE TO THE VALLES CALDERA.
Jemez Pueblo has not proven that it holds aboriginal title to the Valles Caldera. See Pueblo of Jemez v. United States,
To show "actual" and "continuous" use, according to the Tenth Circuit, "Jemez Pueblo must show, as it alleges in its Complaint, that the Jemez people have continued for hundreds of years to use the Valles Caldera for traditional purposes, including hunting, grazing of livestock, gathering of medicine and of food for subsistence, and the like."36 Pueblo of Jemez v. United States,
that multiple Tribes worshipped and used the Valles Caldera for many centuries. That fact, if proven, defeats Plaintiff's claim. And it is a matter of common sense that worship and use by other Tribes in recent times (i.e., since the mid-19th Century) is evidence of similar usage in earlier times, particularly where the usage is religious and therefore the subject of centuries-old traditions and beliefs.
MIL 1 Response at 11.
The Court agrees with the United States that evidence of other Pueblos' traditional uses after 1848 could support an argument that such traditional uses began before the nineteenth century and thereby defeat Jemez Pueblo's claim to aboriginal title. The opposite is also true, as evidence of Jemez Pueblo's traditional use alone, or, theoretically, in amicable and exclusive accord with other Pueblos, could support its claim to aboriginal title by inference that such practices began many years before 1848. Hence, the Court further agrees with the *1116United States in its interpretation of Santa Fe, insofar as Santa Fe stands for the proposition that "it is perfectly possible for Jemez to 'relinquish[ ] tribal rights in lands,' [314 U.S.] at 358 [
B. EVIDENCE OF USE BY OTHER THAN JEMEZ PUEBLO AFTER 1848 IS RELEVANT TO WHETHER JEMEZ PUEBLO LOST ABORIGINAL TITLE BY SUBSTANTIAL INTERFERENCE.
Assuming that Jemez Pueblo can establish that it historically held aboriginal title to the Valles Caldera, evidence of land use after 1848 is relevant to whether Jemez Pueblo's aboriginal title remains unextinguished. "On remand, the Jemez Pueblo will have to prove that it ... still has aboriginal title to the land at issue in the case." Pueblo of Jemez v. United States,
*1117To support the proposition that "white settlement and use, authorized by the federal government," can extinguish aboriginal title, the Tenth Circuit quotes heavily from United States v. Pueblo of San Ildefonso, see Pueblo of Jemez v. United States,
there are no fine spun or precise formulas for determining the end of aboriginal ownership. Unquestionably, the impact of authorized white settlement upon the Indian way of life in aboriginal areas may serve as an important indicator of when aboriginal title was lost. But such authorized settlement is only one of various factors to be considered in determining when specific lands were "taken." Gila River, supra ,494 F.2d at 1391 ,204 Ct. Cl. at 146 .
United States v. Pueblo of San Ildefonso,
As further support for the proposition that authorized non-Indian settlement can effectuate gradual taking of aboriginal title by the United States, both the Tenth Circuit in this case and the Court of Claims in United States v. Pueblo of San Ildefonso cite to the Court of Claims' opinion in Gila River Pima-Maricopa Indian Community v. United States. In Gila River Pima-Maricopa Indian Community v. United States, the Court of Claims stated that the opening of an area for non-Indian settlement only becomes a factor "in an appropriate factual context."
The Tenth Circuit also cites the Zia litigation as evidence that aboriginal title may be extinguished "as a matter of fact over time" by interference with aboriginal use and occupancy. Pueblo of Jemez v. United States,
The Court of Claims in the Zia litigation also references another factor that may result in aboriginal title extinguishment: the unilateral designation -- by Congress or by the President -- of Indian land for another public use, such as the creation of a national forest reserve or, again, a grazing district. See 19 Ind. Cl. Comm. at 74. The Tenth Circuit notes that the ICC cases of Pueblo of Nambe v. United States and Pueblo of Taos v. United States stand for the same proposition. See Pueblo of Jemez v. United States,
*1119These unilateral actions placed restrictions on the Pueblos' historic use of their land, that is, they prevented the Indians from using the land how they saw fit.
In summary, based on the Tenth Circuit's mandate in this case, the Court has identified five factors, none of which by itself is dispositive, that could support a finding that the United States substantially interfered with aboriginal title over time so as to effectuate a gradual taking absent express Congressional intent: (i) the creation of an Indian reservation; (ii) Congressionally authorized non-Indian settlement of historic Tribal lands; (iii) a Congressionally ratified Executive Order increasing the size of reservation lands set aside for exclusive Indian use; (iv) a cabinet-level order, pursuant to a Congressional act, imposing restrictions on Indian use of their historic lands; and (v) Congressional or executive action designating Tribal land for conservation, recreation, or commercial use, such as a forest reserve, grazing district, or the like. Importantly, each of the factors found in the cases cited by the Tenth Circuit involve some action on the part of Congress, either directly or through the President, that significantly affects an Indian Tribe's use of their historic lands. In this way, the Court of Claims never completely abrogated Congressional intent to extinguish aboriginal title, but rather found that Congressional intent was implied based on various actions offensive to aboriginal use and possession. Because, in this case, neither party has suggested that Congress has expressly extinguished aboriginal title to the Valles Caldera, the Court will consider evidence of use after 1848 helpful insofar as such evidence speaks to the five above-mentioned factors, each of which support the Tenth Circuit's mandate to consider evidence of "substantial interference by others" with Jemez Pueblo's traditional use of the Valles Caldera.39 Pueblo of Jemez v. United States,
*1121Aside from the Tenth Circuit's opinion in this case, the Court is aware of only a single federal Court of Appeals decision -- outside the ICC context -- to suggest that the United States can take aboriginal title by substantial, Congressionally-authorized interference with a Tribe's traditional use of its historic lands. See United States v. Gemmill,
The exact date on which Indian title has been extinguished is often difficult to determine. (See United States v. Pueblo of San Ildefonso, supra, at 1391.) The four events we have recounted amply illustrate that problem. Any one of these actions, examined in isolation, may not *1122provide an unequivocal answer to the question of extinguishment. However, the activity of the federal government, beginning with the ambiguous Act of 1851 and culminating in the payment of the compromise settlement, has included expulsion by force, inconsistent use, and voluntary payment of compensation agreement. (See Santa Fe, supra ,314 U.S. at 347 ,62 S.Ct. at 252 ,86 L.Ed. at 270 .) This century-long course of conduct amply demonstrates that the Pit River Indian title has been extinguished.
II. THE KEHOE REPORT CONTAINS RELEVANT EVIDENCE OF USE OF THE VALLES CALDERA AFTER 1848.
The Court will consider as relevant evidence Dr. Terence Kehoe's expert report, which details use of the Valles Caldera by other than Jemez Pueblo after 1848. The Federal Rules of Evidence "contemplate the admission of relevant evidence, and the exclusion of irrelevant and potentially prejudicial evidence." Sec. & Exch. Comm'n v. Goldstone,
Jemez Pueblo argues that Dr. Kehoe's proposed testimony is irrelevant, because *1123it "concerns use of the lands in question from 1863 to the present. None of his proposed testimony goes to the issue of Congressional action taken to extinguish the Jemez Pueblo's title." MIL 1 at 26. Jemez Pueblo concedes, however, that "a significant portion of Kehoe's proposed testimony addresses his opinion that other Indians sometimes entered the area." MIL 1 at 27. Moreover, the United States argues that, in compiling his expert report, Dr. Kehoe "studied, among other things, use of the Valles Caldera lands by other Tribes and interference with Jemez's use of the Valles Caldera during the years when the Baca, Bond, and Dunigan families owned the land." MIL 1 Response at 13. The Court concludes that the Kehoe Report discusses early 20th century Valles Caldera religious use by not only Jemez Pueblo but also Zia, Santo Domingo, Sandia, Cochiti, Tesuque, Pojoaque, San Ildefonso, Santa Clara, and San Juan Pueblos. See Kehoe Report at 19-20, 29-30, 42-43. Although use of the Valles Caldera by non-Indians may indeed be less relevant to the Court's title-extinguishment analysis, evidence of use by other Pueblos speaks to whether Jemez Pueblo can establish aboriginal title and is thus in accord with the Tenth Circuit's directives on remand. See Pueblo of Jemez v. United States,
IT IS ORDERED that the requests in the Plaintiff's Motion in Limine to Exclude Certain Evidence, filed August 17, 2018 (Doc. 236), are denied. The Court will consider evidence of land use by other than Jemez Pueblo after 1848 as relevant to whether Jemez Pueblo holds aboriginal title to the Valles Caldera. Furthermore, the Court will admit the substance of the expert report that Dr. Terence Kehoe authored.
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