A view of Shiprock on the New Mexico portion of the Navajo Nation. Photo: Beau Rogers
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Federal court blocks attempt to condemn lands on Navajo Nation





A federal appeals court has sided with tribal interests in a closely-watched land case that touches on a timely issue for the Trump administration.

By a unanimous vote, a three-judge panel of the 10th Circuit Court of Appeals said federal law does not authorize condemnation of lands in which the Navajo Nation holds an interest. The decision bars the Public Service Company of New Mexico from maintaining a power line on the reservation without the consent of all of the owners.

"Absent explicit authorization, tribal sovereignty prevails," Judge Gregory A. Phillips wrote in the 27-page decision.

The ruling, issued on Friday, affects the attempted condemnation of just two parcels on the reservation. But the case nonetheless drew significant attention in Indian Country because it could have opened up tribes to lawsuits and hindered efforts to reverse the effects of the allotment era.

"No one can feign surprise to learn that the United States government’s treatment of the original inhabitants of this country has not been a model of justice," Phillips observed in the decision.

The National Congress of American Indians, the Confederated Tribes of the Umatilla Indian Reservation, the Pueblo of Laguna and the Ute Mountain Ute Tribe highlighted that negative treatment in a brief they submitted to the court. Condemning lands in which a tribe holds an interest would only reinforce the "disastrous" allotment policy, which Congress officially halted in 1934.

"The practice of taking tribal lands and handing them out has been rightly abandoned, and it will do PNM and other utility companies no harm to be required to work with tribal governments and to obtain their consent while building and maintaining utilities on the reservation," the brief stated.

The parcels at issue in the dispute were allotted to Navajo citizens in the early 1900s. Under federal law, Indian allotments can be condemned, so long as the owners are compensated for "damages," according to 25 U.S.C. § 357.

The Navajo Nation, however, acquired interests in both parcels through land consolidation programs that Congress authorized to address the harmful effects of allotment. As a result, § 357 does not apply because the allotments at issue are now "tribal," the 10th Circuit determined.

"Section 357 does not reach tribal lands, even if land reobtains that status long after it was allotted," Judge Phillips wrote.

Phillips went to great lengths to discuss the ways in which Congress has addressed allotment and fractionation, an issue of land division that arose as a result of allotment. Much of the language was taken directly from the tribal brief, which included a description of the Land Buy-Back Program for Tribal Nations, the $1.9 billion land consolidation program that was part of the historic Cobell settlement.

The overarching goal of these efforts, Phillips noted, is to restore tribal ownership and reinforce tribal sovereignty.

"The issue is not how the tribe acquired the land, but instead what is the land’s present status now that the tribe has acquired it," the ruling stated. "As discussed, we hold that the land is now tribal land and thus beyond the reach of condemnation."

Phillips also pointed out the Public Service Company of New Mexico, also known as PNM, is not without recourse. The firm simply has to return to the negotiating table and come up with an agreement that satisfies all of the owners of the land, he wrote.

The power line at issue, known as the "AY Line," was installed on the reservation in 1960. It runs about sixty miles and crosses a total of 57 allotments, according to the court. Of those 57, just two were at issue in the attempted condemnation.

PNM named the owners of the two parcels as defendants in the lawsuit. Dozens are listed -- a sign of the fractionated nature of the allotments, a situation that the Cobell program was designed to address.

The Navajo Nation also was named a defendant, raising sovereign immunity issues that the 10th Circuit did not need to address because it resolved the case by looking at the language of § 357. According to the court, the tribe owns 13.6 percent of one of the parcels and just 0.14 percent of the second.

Through the Buy-Back Program, more than 11,000 landowners on the Navajo Nation received about $108 million for their fractional interests, according to the Department of the Interior. The equivalent of about 155,500 acres was transferred to the tribe as a result.

Navajo leaders have called the effort a success. Members of the Eastern Navajo Land Commission, a group established by the Navajo Nation Council, took the lead in educating the tribe about the benefits.

"They saw this program as a means to help the Navajo Nation with its land issues to promote development and economic opportunities for our people and communities," Speaker LoRenzo Bates said in early January, when the tribe hosted a top Interior official from the Obama administration.

The Trump administration is taking a different view. Jim Cason, an "acting" official at Interior, characterized the program as a money grab for tribal leaders and tribal citizens alike during a hearing on Capitol Hill this week.

"I don't think there's any tribal leader that would say, 'Gee -- I don't want free money,'" Cason told the House Subcommittee on Indian, Insular and Alaska Native Affairs on Tuesday.

When pressed by Rep. Norma Torres (D-California), the top Democrat on the subcommittee, Cason refused to acknowledge that the program helps strengthen tribal sovereignty. She asked him about it more than once but he declined to endorse that line of thinking.

The Cobell settlement, which was ratified by Congress, set aside $1.9 for land consolidation. Only about $600 million remains in the fund and Cason said the new administration is prepared to let the money run out.

Turtle Talk has posted documents from the case, Public Service Company of NM v. Barboan.

10th Circuit Court of Appeals Decision:
Public Service Company of NM v. Barboan (May 26, 2017)

House Subcommittee on Indian, Insular and Alaska Native Affairs Notice:
Oversight Hearing on the Status and Future of the Cobell Land Consolidation Program (May 23, 2017)

Department of the Interior Report:
2016 Status Report: Land Buy-Back Program for Tribal Nations (November 2016)

Related Stories:
Trump administration ready to let Cobell program run out of funds (May 24, 2017)