Jemez Pueblo Wins at the United States Court of Appeals for the Tenth Circuit

Posted by Tierra Marks.

On March 22, 2023, Barnhouse Keegan Solimon & West received the exhilarating news that the Tenth Circuit Court of Appeals ruled in Jemez Pueblo’s favor in Pueblo of Jemez v. United States confirming Jemez Pueblo’s aboriginal Indian title ownership to Banco Bonito located in what is now the Valles Caldera National Preserve.

This case began in 2012, when Jemez Pueblo sued the United States under federal common law and the Quiet Title Act seeking to quiet the Pueblo’s unextinguished and continuing aboriginal Indian title to the Valles Caldera. In 2013, the district court granted the United States’ motion to dismiss holding that Jemez Pueblo’s claims were barred by the federal Indian Claims Commission Act. Jemez Pueblo appealed, and in 2015, the late Karl Johnson, the firm’s managing partner at the time, argued before the Tenth Circuit at the University of New Mexico School of Law and brought Jemez Pueblo its first victory with the Tenth Circuit reversing and remanding the case for trial. However, after a nearly month-long bench trial, Judge James O. Browning denied the entirety of Jemez Pueblo’s claims. Jemez Pueblo appealed again to the Tenth Circuit, and, in 2022, Christina West, a partner in our firm, argued on behalf of Jemez Pueblo before the Tenth Circuit at the UNM School of Law, marking the second time the Tenth Circuit held oral arguments at UNM and bringing Jemez Pueblo a second victory in this case.

The Tenth Circuit Opinion, published on March 22, 2023, was written by U.S. Circuit Judge Gregory A. Phillips, who was on the panel in the first appeal to the Tenth Circuit in 2015. Circuit Judge Phillips stated that “the Supreme Court has repeatedly stressed that ‘[t]he right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee’” and clarified the 2015 Jemez I Opinion “did not adopt a use-it-exclusively-or-lose-it-entirely rule.”

The Tenth Circuit’s Opinion is the first time a federal court has held a tribe has live continuing title to their ancestral land as other Tribal land claims against the United States were only adjudicated for monetary value through the Indian Claims Commission or otherwise negotiated through settlement discussions. This case is also the first time a tribe has sued the federal government under the Quiet Title Act to recover ancestral lands.

Although the Tenth Circuit held that Jemez Pueblo did not have title to its Paramount Shrine Lands, the Opinion did not deny the Pueblo’s ownership of those Shrine Lands. Instead, the Opinion only held that there was insufficient notice to the federal government on Jemez Pueblo’s claim of title to its Paramount Shrine Lands. Addressing Jemez Pueblo’s title to its Paramount Shrine Lands, the concurring and dissenting opinion written by Circuit Judge Eid stated: “The majority, the district court, and the government all seem to expect Jemez to have pleaded, in the infinite alternative, every possible permutation of land claim in light of every possible permutation of responses by the district court.  . . . But that cannot be the solution. As Jemez rightly observes, such a system ‘would be impractical if not impossible to implement.’”

Our firm is overjoyed for Jemez Pueblo and what the Opinion means for the Pueblo, its future generations, and the long overdue respect owed to its tribal elders who made many sacrifices throughout this 10-year litigation and tirelessly fought to recover their traditional lands. This case was filed by the firm’s founding partners, including Tom Luebben and Karl Johnson, and, on behalf of the many attorneys in the firm who have worked on this case, we are honored to see this case through on behalf of Karl who is no longer with us, and with the continuing work of Tom.