.
. ...
~
,
'·.~11\IAL
BEFORE THE INDIAN CLAIMS COMMISSION
Petitioners,
v.
THE UNITED STATES OF AMERICA,
. Defendant.
DEFENDANT'S BRIEF, PROPOSED FINDINGS OF FACT
AND OBJECTIONS TO PETITIONERS' REQUESTED
FINDINGS OF FACT.
.
. Shiro Kashiwa '. .
Assistant·Attorney'General·
Howard G. Campbell
Attorney
at:r
Hd 11 N~r Il.·
NOISSiWWO:J
SWlVl~ N'tlONI
I N D E X
Pages
BRIEF
• • • • • • • • • Co • • • • • • • • • • • • • • • •
0
t;I
•••••••••••••••••••
1-21
STATEMENT •••••••••••••••••••••••••••••••••••••••• 1-5'
QUESTIONS PRESENTED ••••••••••• ' •••••••••••••••••• 6
ARGlJ!.1ENT ••••••••••••••••••••••••••••••••••••••••• 7- 21
I.
Indian Title to Any Lands Outside the
Confirmed Grants of These New Mexico
Pueblos Was Extinguished Not Later
Thall 1858 ••••••••••••••••••••••••••••••••• 7-12
II.
Aboriginal Title Based on Continuous
Exclusive Occupancy and Use Was Broken
Not Later Than 1905 by Incursion of
NonIndian Settlements ••••••••••••••••••••• 13-18
III.
Pueblo of Santo Domingo Is Bound by Its
Stipulation as to the Extent of Its
Aboriginal Title Lands •••••••••••••••••••• 19-21
DEFENDANT'S PROPOSED FINDINGS QF FACT ••••••••••••••• 22-47
Finding No. l--Stipulations as to the Area of
Aboriginal Title .~ •••••••••••••• 22-23
Finding No. 2--Maps Portraying Specific Area
for each Petitioner •••••••••••••
24~25
.Finding No. 3--Opening of New Mexico Territory
to Settlement Under the Public
Land Laws ••••••••••••••••••••••• 26
Finding No. 4--Duty of the Surveyor General of
New Mexico to Investigate Land
Claims Arising Under Prior
Sovereigns •••••••••••••••••'••••• 27
Finding No. 5--Reports of the Surveyor General
on the Land Holdings of the
Pueblo Indian~ •••••••••••••••••• 28-29
ii
Finding No. 6--Confirmation of the Pueblo
Land Holdings by Congress ••••••• 30-31
Finding No. 7--Date of Extinguishment of
Aboriginal Title for the Pueblos
of San I1defonso. Santo Domingo
and Santa Clara was 1858 •••••••• 32
Finding No. 8--Petitioners' Evidence at the
Trial on the Date of Extinguish­
ment of Aboriginal Indian Title • 33-34
Finding No. 9--Defendant's Evidence on the
Trial of Date of Extinguishment
of Aboriginal Indian Title •••••• 35-37
Finding No. 10--Finding as to Date of
Interruption of the Indians'
Continuous. Exclusive -Occupancy
of the Aboriginal Title Areas •• 38
Finding No. 11--Conc1usion ••••••••••••••••••••• 39-47
CONCLUSIONS OF LAW •••••••••••••••••••••••••••••••••• 48-49
DEFENDANT'S OBJECTIONS TO PETITIONERS' REQUESTED
FINDINGS OF FACT ••••••••••••••••••••••••••••••• 50-54
I.
Stipulated Matters
Finding No. 1
Finding No. 2
Finding No. 3
II.
·
··
.. 50
SO-51
. 51
Indian Title to San Felipe Reservation
Finding Nos. 4-18 ­
(Santo Domingo Brief, Docket No. 355) • 51
"
iii
1110
Valuation Dates
Finding No. 19
(Santo Domingo Brief, Docket No. 355)
52
Finding No •. 20
(Santo Domingo Brief, Docket No. 355) • 53
Finding Nos. 21 and 22
(Santo Domingo Brief, Docket No. 355) • 54
Finding Nos. 23, 8 and 9
(Santo Domingo Brief, Docket No. 355,
San I1defonso Brief, Docket No. 354,
and Santa Clara Brief, Docket No. 356) .54
CONCLUSION ••••••••••••••••••••••••••••••••••••••••.•• 55
CIT A T ION S
Cases:
A1cea Band of Ti11amooks v. United States, 103 C.C1s.
494 (1945), aff'dJ 3 2 9 U.S. 40 (1946) ••••••••••• 9
. Barker v. Harvey, 181 U.S. 481 (1901) ••••••••••••••• 16
Clark v. Smith, 13 Pet. (38 U.S.) 195 (1839) •••••••• 8
Confederated Tribes of the Warm Springs I<.eservc:;tion
v , United States, 177 C.C1s. 184 (1966) ••••••••• 8
Cowlitz Tr.ibe·v. United States, 21 Ind.C1.Comm. 149
(1969) ...•.•..•.•.••.....•.••••.•.•.•..•••..•.•• 17
Johnson v.
~'lntosh,
8 Wheat. (21 U.S.) 543 (1823) •• 8
Mitchel, et a1. v. United States, 9 Pet. (34 U.S.)
711 (1835) •.•••••.•••••••••••••••••••••••••.• ~. 8
Nisgually Tribe v. United States, 21 Ind.C1.COk~.
173 (1969) ••••••••••.•••.•••••.••••••••••••
0
•••
8
i
i
(
!
I
I
iv
Cases (continued):
Northern Paiute Nation v. United States, 183 C.e1s •.
321 (1968) .•.....•••..•............•.•••••••• ~. 18
Osage Nation v. United States, 11 Ind.C1.Comm. 733
(1962) .••.•••.••.•.•.•.•.••••••.•••.••••..•.••. 8
Osage Nation v. United States, 19
Ind.C1.Comm~
447
(1968) ...•••••••.•.•......•...............••.•• 8
Pueblo of Nambe v. United States, 16 Ind.C1.Comm.
393 (1965) •••..•.••••.••.•••.•••.••.•••.•.•.• ~. 2
Pueblo of Taos v. United States, 15 Ind.C1.Comm.
666 (1965) ••.••.•••••.••••••.•.••••.••••••••••• 2
Sac and Fox Tribes v. United St3tes, 179 C.C1s.
8 (1967) ....•......•••..••.•..........•.•...... 8
San Carlos Apache Tribe v. United States, 21 Ind.
C1.Comm. 189 (1969)
..
. 7,.8
~
Shoshone Indians v. United States, 324 U.S. 335
(1945) .........•.•.•...••.•..•.•.•.••
0
•
•
•
•
•
•
•
••
9
Spokane Tribe v. United States, 163 C.C1s. 58
(1963) .••..•..••.•...••.•..••••.. ~ ••....•...... 8
United States v. Santa Fe Pacific RR. Co., 314 U.S.
339 (1941) ..............................•........ 7,
United States v. Seminole Indians, 180 C.C1s.
375 (1967) ••....•..•...•.•••••••••••••••••••.••• 7
Washoe Tribe v. United States, 21 Ind.Cl.Comm.
447 (1969)
...............................
... ...
.
,
.,
­
;lJ,-.: 11
v
S TAT UTE S
Act of September 4, 1841, 5 Stat. 453
.................. ~~'
15, 26, .
Act of March 3, 1843, 5 Stat. 619-620 ••••••••••••••••• 15, 36
I
I
I
Act of July 22, 1854, 10 Stat. 308 ••••••••••••••••.••• 6, 9, 11, 12, I
16, 17, 26, I
28, 32
I
Act of December 22, 1858, 11 Stat. 374
11, 12, 17,
30, 32, 48,
I
53, 54
Act of June 2, 1862, 12 Stat. 410
..................... 15, 36
Act of May 10, 1872, 17 Stat. 91 ••••••••••••••••• .'•••• 15, 36
Act of March 3, 1873, 17 Stat. 607 •••••••••••••••••••• 16,36
Act of June 4, 1897, 30 Stat. 34, 36 •••••••••••••••••• 15, 36
Act of June 6, 1900, 31 Stat. 614
••• ! •••••••••••••••••
15, 36
!
Treaty:
j
Treaty of February 2,1848,9 Stat. 922 ••••••••••••• ,.48
Miscellaneous:
Executive Order of June 13, 1902 (1 Kapp. 878) •••••••• 4
I
Indian Claims Commission Act, 60 Stat. 1049, 1050, 25
u.s.c.
sec. 70a .•............... ~ ....••.....••.•.•••
4~
H. Rept. No.1, 34th Cong., 1st sess. (1855) pp. 301­
303 .......•...•.
a .. • • • • • • • • • • • • • • • • • • • • • .. .. • .. .. .. .. .. .. .. . . .
28
S. Rept. No.5, 34th Cong., 3d sess. (1856) p. 411,
~
seq. .
28
I
BEFORE THE INDIAN CLAIMS CMtISSION
Docket Nos. 354, 355 and 356
PUEBLOS OF SAN ILDEFONSO,
SANTO DOMINGO,
AND
SANTA CLARA,
Petftioners,
v.
THE UNITED STATES OF AMERICA,
Defendant.
:i
DEFENDANT I S BRIEF, PROPOSED FINDINGS OF FACT
AND OBJECTIONS TO PETITIONERS I REQUESTED·
FINDINGS OF FACT
BRIEF
STATEMENT
These three Pueblo cases were part of a
filed about the same time by the same attorneys
claims for damages based on the loss of
without payment of any consideration.
cases are the Pueblo of Taos
of Nambe (Docket No. 358).
cU'V~.L6."•• c.~t1tre'01~
The
- 2 ­
All of these Pueblos are located on or near the Rio
Grande River in north-central New Mexico.
In relation to
Santa Fe, Taos is about 45 miles north-northeast and Nambe
is some 10 miles due north.
Of the three here involved,
Santa Clara and San I1defonso are covered by a line running
north-northeast about 20 miles from Santa Fe while Santo
Domingo is southwest of the city about 20 miles.
The cases of
~
and Nambe were tried on the issue of
aboriginal title one after the other in June 1962.
they were not consolidated,
1...1
Although
part of the records overlapped.
2
I
The Commission's decisions were handed down in 1965.--- In
each case, in spite of petiti.oners
having received specific)
. bounded grants from Spain, which were patented to them by the
~
claims descriptions.
After the areas had been mapped and
p1animetered by the Bureau of Land Management, it was dete:rinined
1 I This was due in part to the fact that Taos had cOlllpl:l.ea- .
tions not found in Nambe or these three cases:­
~I
Pueblo of Taos v , United States, 15 Ind.Cl.CODDl.~ 66~J'(!265);
Pueblo of Nambe v. United States, 16 Ind.C1.Comm. 393 (1965).
J
- 3 ­
that these Indian title compensable lands amounted to 130,000
. 3/
acres-- for ~ and 45,000 acres for Nambe.
Because in the
~
and Nambe cases the Commission had
awarded all the Indian title land claimed and had indicated
informally it would do this also in
~
I1defonso, Santo
Domingo, and Santa Clara, it was decided in 1966 that it
would be needlessly expensive to try these. three cases on the
title issue.
Accordingly, the Indians and the United States
stipulated the extent of the aboriginal or Indian title for
.
..!:../
each of the claimant Pueblos.
The August 1967 maps by the Bureau of Land Management
which are part of the stipulations show these Indian title
acreages:
San I1defonso •••••••••••••
Santo Domingo ••••• ~ •••••••
Santa Clara •••••••••••••••
Total .................•
~/
66,227
77,237.24
31,940.86
175,405.10
acres
acres
acres
acres
By far the largest of the five.
The extinguishment dates in Taos and Nambe were 1906
and 1905, respectively. Those were the years parts of·t:heir
Indian title lands were put into national forests.
~/
Stipulations filed herein on October 29, 1969.
,
I
!
I
I
- 4 ­
Subsequent to the stipulations as to acreage, these
cases were set down for a hearing on the only two remaining
issues in the liability phase of the case.
The more important
issue, connnon to all three cases, and the only issue in San
Ildefonso (Docket No. 354) and Santa Clara (Docket No. 356)
was the determination of
agreed acreages.
~he
correct valuation date for the
Santo Domingo
~ad
a second issue involving
aboriginal title to the San Felipe Reservation established by
the Executive Order of June 13, 1902 (1 Kapp. 878).
At the hearing, held on June 18, 1970, the Indians
introduced documentary evidence (Petitioners' Exhibits IT 1-20)
relating to the 1770 Spanish grant to the PueblosofiS.mto
'Domingo and San Felipe, proceedings be fore the Surveyorceneral
of New Mexico and the Court of Private Land Claims concerm.ng
the title under the 1770 grant and the establishment by
Executive Order of June 13, 1902 (l Kapp. 878) of the SaIl.
.
51·
61
Felipe Indian Reservation.- The Indians presented no witl1.~sses.-
~/
Tr. 6-19 (June 18, 1970).
6/ There had been earlier hearings in these cases (on
september 7 and 8, 1954 and December 12, 1956 mer~l'y to
preserve the ~ecollections of those advanced in years.
- 5 ­
The Government presented as its witness on the date of
extinguishment issue Mr. Samuel C. Nichols, an expert in
public land matters who has retired from the Bureau" of Land
Management.
Mr. Nichols testified as to all public land entries
prior to 1906 within the outer. limits of the aboriginal title
areas in each of these cases.
.2/
In addition, the Government
presented documentary evidence relating to the aboriginal
title areas, the public land entries thereon, and the 1902
8/
establishment of the San Felipe Indian_ Reservation.- The'
Indians filed their Requested Findings of Fact and Briefs
c­
on the liability phase of these cases on August 27, 1970.
The Gqvernment's Brief, Proposed Findings of Fact, and
'Objections to Petitioners' Requested Findings of Fact are
filed herewith •
..1J
-!/
Tr.21-36 (June 18, 1970).
Tr. 45 (June 18, 1970).
- 6 ­
QUESTIONS PRESENTED
1.
Whether aboriginal title to all lands outside the'
confirmed grants of these New Mexico Pueblos was extinguished
by the Act of July 22, 1854, 10 Stat. 308.
2.
Wheth~r
aboriginal title to all lands outside the
confirmed grants of these New Mexico Pueblos was extinguished
by not later than 1905 because the Indians had by this time
lost their exclusive use and control of the public domain
lands in the vicinity of their pueblos.
3.
Whether the Pueblo of Santo Domingo is bound by its
stipulation that the extent of their aboriginal title lands
as of 1848 was 77 ,237.24 acres, which stipulation expressly
excluded the 8,600 acres in the San Felipe Indian Reservation.
l
- 7 ­
ARGUMENT
I
Indian Title to Any Lands Outside the Confirmed
Grants of These New Mexico Pueblos Was
Extinguished Not Later Than 1858
Although the parties have stipulated the el'tent or area
of aboriginal title outside the confirmed pueblo grants to
the three petitioners in these cases, and only the question
of the date of extinguishment after 1848 remains, it is
r:
necessary to consider the general nature of Indian title to
determine when aboriginal title was extinguished.
To establish
aboriginal title the Indians must show three things:
(1) that
they have occupied, used and controlled the land exclusively;
(2) that they have occupied the land continuously; and-(3) that
they have occupled the land from "time innnemorial" or for
"a long time."
United States v , Santa Fe Pacific RR. Co., 314
U.S. 339, 345 (1941); United States v. Seminole Indians, 180
C.Cls. 375, 383 (1967); San Carlos Apache Tribe v. United States,
21 Ind.C1.Comm. 189, 192-194 (1969).
The predominant attribute
of aboriginal title is that it is the right of the pueblo or
tribe vis-a-vis the United States to continue to use land in
normal Indian fashion, e.g., for village sites, grazing of
- 8 ­
animals, gardens, gathering of natural materials and related
.-
uses which these primitive
~ocieties
made of the land.
Mitchel,
et a1. v. United States, 9 Pet. (34 U.S.) 711, 746 (1835);
Clark v. Smith, 13 Pet. (38 U.S.) 195, 201 (1839); Spokane
Tribe v. United States, 163 C.C1s. 58, 66 (1963); Confederated
Tribes of the Wann Springs Reservation v , United States, 177
.
C.C1s. 184,
194 (1966); Sac and Fox Tribes v. United States,
.
179 C.C1s. 8, 20-22 (1967); San
States, supra; Nisgua11y
~
Ca~~os
Apache Tribe v. United
v. United States, 21 Ind.C1.Comm.
173, .174-177 (1969); Osage Nation v , United States, 19 lnd.C1.
Comm. 447, 486,
~
seq. (1968); Osage Nation'v. United States,
~
11 lnd.C1.Comm. 733, 814,
seq. (1962) •
..
The fee or ultimate title of land occupied under aboriginal
.i"
t:i.t1e .a1ways remains in the United States, however.
,M'lntosh, 8 Wheat. (21 U.S.) 543, 587-588 (1823).
Johnson v.
The United
States, because of its ownership of the underlying fee and its
constitutional power to control intercourse with Indian tribes,
retains the power to extinguish aboriginal title which is
supr~me,
and which may be exerciRed under such circumstances
as Congress thinks best.
United
St~
RR. Co., 314 U.S. 339, 347 (1941).
v.
~ta
Fe Pacific
!
f
!
j
Ii
I
-
9
-
It follows from the above general principles of Indian
law that aboriginal title may be extinguished in either of
two ways.
It may be extinguished when the Indians no longer
maintain the continuous exclusive use and occupancy which are
necessary elements for aboriginal' title.
Such breaking of
"
I
I
II
i
the continuous exclusive use and occupancy by the Indians
might occur by conquest by another Indian tribe, by influx
of nonlndians into the area, by abandonment, or by use of
military force.
Extinguishment of aboriginal title may also
occur by exercise of the intent or
witho~it
~ll
of the United.States
~
a voluntary abandonment of their aboriginal haunts.
Northwest Shoshorte Indians v. United States, 324 U.S.i335,3/i.6
. (1945); Alcea Band of Ti1lamooks v , United States, l03C.C1S.
494, 560-561 (1945), aff'd, 329 U.S. 40 (1946);
wash"~:TriJ!:/
v. United States, 21 Ind.Cl.Comm. 447, 448 (1969).
The above-cited cases show that the United
either by passage of legislation, or by acts of
disposing of land claimed by'aboriginal title as
an unencumbered part of the .public
ment of aboriginal title.
this case.
,!~ain,
effec.t:
Such is the controlli
By the Act. of July 22;
1854~>10
Stat
clearly opened the Territory of. New Mexico witht
:
- 10 ­
stated therein to settlement under the public land laws of
the United States.
This 1egis1ation,first established the
office of Surveyor General for New Mexico whose power, authorities
and duties are the same as those of the Surveyor General of
Oregon.
The legislation next provides for disposition of
the public lands in the territory by various means.
tions are made for mineral and school Lands ,
Reserva­
Lards not otherwise
taken under the act are made subject to the Preemption AC1:;of
September 4, 1841, 5 Stat. 453.
Ii
i
More important to our immediate case, the SutVeyor\General
of New Mexico was given the duty "to ascertain
theorigih~
nature, character, and extent of all claims to 1andsi:lnder
. the laws, usages, and customs of Spain and Mexico;
was specifically instructed by Congress to
in regard to all pueblos existing in the
the extent and locality of each, stating
ants in the said pueblos, respectively, and
titles to the land."
This section of the act
concludes with the instruction that thepurpose,c)
gations by the Surveyor General was
confirm bona fide grants, and'until
i
- 11 ­
all such claims were reserved from sale or other disposal
by the Government.
The section would then clearly make all
land in New Mexico not so reserved subject to the sale and
disposal by the Government under the o·_:.er sections of the
legislation.
Pursuant to the above legislative authority, the Surveyor
General made a report to the Secretary of the Interior
da~ed
September 30, 1856 wherein he approved several private land
claims and the claims of 13 pueblos including all of the
petitioner Pueblos in these cases.
S. Doc. No.5, 34th Cong.,
3d sess. (1856), p. 411~ ~~. (Cong. Doc. Sere No. 875).
The c1ai,ms of the Pueblos were confirmed by the Congress by
the Act of December 22, 1858, 11 Stat. 374.
Thus, not only
did the Act of July 22, 1854, supra, open the Territory of
New Mexico to settlement under the pUblic' land laws but as
to the particular Pueblos which are
peti~ioners
here, it con­
firmed the extent of land they owned as recognized by the
United States.
To the extent that they may have had aboriginal
land outside their confirmed grants,
th~
I!
I
I
aboriginal title
would have been extinguished much as when Indians are placed
on a reservation.
I
See United States v. Santa Fe PacificO.. Co.,
I
I
- 12 ­
314
u.s.
339,
35l-~
seq. (1941).
By accepting their con-
finned pueblo grants,
the Indians have abandoned whatever
I
i
II
aboriginal claims they may have had outside their confiDme6
grants.
It must be concluded that whatever aboriginal title the
~&
petitioner Pueblos.had"1n 1848 was extinguished eithe't" by
enactment of the Act of July 22, 1854, 10 Stat. 308, showing
the intent of Congress to open all land in the Territory of
New Mexico, not specifically reserved to settlement under
the public land laws, or the Act of December 22, 1858, 11
Stat. 374, by which the grants of these pueblos were confirmed
to them by Congress.
I
.t
!
i
l.
- 13 ­
II
Aboriginal Title Based on Continuous Exclusive Occupancy
and Use Was Broken NQt Later Than 1905 by Incursion
of NQnIndian Settlements
It has been pQinted Qut in the Argument abQve, sectiQn
I, that abQrigina1 title may be.extinguished in either Qf_two
. ways.
We have shown in sec t Lon I that it was the intent of
CQngress that land not specifically reserved tQ the PueblQ
Indians was to be available for' settlement under the public
land laws, and any aboxd.gd.na], title oucsd de the confd.rmed
grants was thereby extinguished.
In this sectiQn we now
shQW that under the secQnd methQd, physical interruptiQn Qf
the cQntinuQus exclusive QccupatiQn and use by the Indians,
abQrigina1 title WQu1d have been extinguished nQt later than
1905.
GQvernment expert witness, Samuel C. NichQ1s, the fQrmer
head Qf the Department Qf the InteriQr's tract bQQk Qffice
in
the
Si1ve~
Spring, Maryland) testified as tQ the extent of
interrup~ion
by settlement under the public land laws
Qf the claimed abQrigina1 eit1e areas.
BefQre testifying,
Mr. Nichols examined the tract bQQk sheets
cove~ing
stipulated areas and applicable surveyor's notes.
the
Mr. Nichols
.
!,
!.
- 14 identified and listed those entries made in the areas involved
up to and including 1905.
Mr. Nichols divided the tract book sheets which covered
each of the stipulated areas and marked the information from
-!if
them on the wall maps •
. The maps were marked as follows:
,Santa Clara, area,
Defendant's Exhibit No.1; San Ildefonso area, Defendant's
Exhibit No.2; and Santo Domingo
No.3.
area~
Defendant's Exhibit
Next, the explanatory sunmary sheets marked Santa Clara,
Defendant's Exhibits 4-A through Dj San Ildeforiso, Defendant's .
Exhibits 5-A through H; and Santa Domingo, Defendant's Exhibits
6-A through L.
A recapitulation of Defendant's Exhibits 4-A throughE,
5-A through H, and 6-A through L, reveals that there were 232
nonlndian entries or applications for entries in the Indian
title areas delineated on the maps before 1906,
Homesteads:
6-A, 6-B and 6-F.
~s
follOWs:
28, shown on Defendant's Exhibits S-G,S-H,
The earliest dates are 1887.
(Act
of
May 20, 1862, as amended.)
..J./
These were Bureau of Land Management maps prepared iri
accordance with the land claim descriptions contained in the
petitions.
!
!
•
- 15 ­
Small Holding Claims:
6uB and 6-F.
14, Defendant's Exhibits 4-D,
1<Y
Earliest dates of entry 1876.-- (Act of March
-----"
3, 1891, as amended.)
Preemption Declaratory Statements:
Exhibits 5-F, 6-A, 6-F and 6-G.
Exhibit 6-A.
7, Defendant's
Earliest entry 1871, Defendant's
(Act of September 4, 1841, 5 Stat. 453; Act of ~
March 3, 1843; 5 Stat. 619-620; Act of June 2, 1862, 12 Stat.
410.)
Preemption:
1, as shown on Defendant's Exhibit 6-A.
Earliest entry 1891.
(Ibid.).
Forest Lieu Selection:
Earliest entry 1900.
1, Defendant's Exhibit 5-H.
(Acts of June 4, 1897, 30 Stat. 34, 36;
and June 6, 1900, 31 Stat. 614.)
Mineral Entries:
15, Defendant's Exhibits 6-A and 6-B.
Earliest entry 1885, Defendant's Exhibit 6-B.
(Act of May 10,
1872, 17 Stat. 91, as amended.)
Mineral Applications:
Earliest entry 1885.
2, Defendant's Exhibit
6~B.
(Ibid.).
10/ Small holding claims required at least 20 years
possession prior to survey. (26 Stat. 86!.) Survey
1896, Def. Ex. 6-B,p. 2.
~ ...._....
".,'"
- 16 ­
Cash Entries:
12, Defendant's Exhibits 6-A and 6-B.
Earliest entry 1870, Defendant's Exhibit 6-B.
(Act of
April 24, 1820, as amended.)
Coal Declaratory Statements:- 141, Defendant's Exhibits
6-A, 6-F and 6-G.
6-A.
Earliest
~y
1879, Defendant's Exhibtt
(Act of March 3, 1873,17 Stat. 607.)
I
I
(Ibid.).
. I
Coal Cash Entries:
6-G.
!I
i
11, Defendant's Exhibits 6-F and
Earliest entry 1903.
To that number must be added th7
homes~ead
entry» on
April 8, 1901, of Julio Garduno, within the disputed San
Felipe Reservation, which is involved in the second"cause of
action herein.
(Infra.)
The foregoing statistics should establish the fact that
i
L
from at least 1870 all the land here involved were open to
'\ettlement under the public land law and subject to sale' or
other disposition.
Barker v. Harvey, i81 U.S. 481 (1901).
The Act of July 22, 1854, 10 Stat. 303, made it subject to
preemption.
In his report for 1856, the Surveyor Generalbf
.
..,",-
­
New Mexico approved the claims put. before-him
byt'hese.three
11/"
.....
Pueblos, among others, to specific acreages.- Patents were
j-
11/ S. Ex. Doc. No.5, 34th Cong., 3d sess. (1856), p. 411.
The report here says: liThe Pueb Lo Indians are constantly
encroached uponbyfteMexican citizens, * * *."
!
- 17 ­
12/
issued for these acreages in 1864.- This well-·advertised
,
will or intent of Congress continued without· interruption
down to the present time.
That congressional intent fostered
the gre~t influx of entryman detailed above.
Not only were settlers moving into these aboriginal title
areas in substantial numbers soon after the passage of the
1854 Act, but surveys of the land were underway at least as
13/
early as 1861.- The making of surveys can hard1.y be exceeded
as indication of congressional intent.
Cowli.tz Tribe v.
United States, 21 Ind.Cl.Comm. 149, 151 (1969).
It is submitted that an examination of Defendant's
Exhibits 1 through 6-L show such an influx of nonIndians into
the lands involved as to have extinguished aboriginal title
in and of itself.
If a determination of extinguishment
to be made simply on the disruption of the Indians' ·continuOus
exclusive occupancy and use of aboriginal title areas
the confirmed grants, we would suggest a date for that ha:ppenling
12/ 11 Stat. 374; Def. Ex. 49, p. 21
States, Docket No. 357).
13/. See field note quotation on Def. Ex. 6-B, p,
Exs.6-F, p. 4 (1880); 6-G, p. 3 (1880); 4-B ,~oo~,
5-H, p~ 2 (1890)~·
Def.
- 18 ­
to be substantially before 1900.
Washoe Tribe v. United .
States, 21 Ind.Cl.CODDJl. 447, 448 (1969); Northern Paiute Nation
v. United States, 183 C.Cls. 321, 352-358 (1968).
In any
event it would not have been later than 1905.
It is also submitted that the ir.formation revealed in
.
the exhibit'material just' mentioned makes it impossible to
contend that there was any existing Indian title remaining
awaiting extinguishment_• • • • •
"'~'.
~
... -·1
iI
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- 19 ­
I
III
,I
PUeblQ Qf Santo DQmiuso Is Bound by Its Stipu1atiQn
u........t.Q~ the Extent of Its AbQriginal Title Lands
i
,
By stipulation filed befQre the Indian Claims Commission
.,,*
on OctQber 29,1969, the Pueblo Qf SantQ DomingQ and-the
United States agree that:
2. At the time Qf the Treaty Qf Guadalupe
Hida1gQ * * * the Pueb1Q Qf SantQ DomingQ
abQrigina11y and
used and Qccupied
. the area delineated Qn the attached map * * *.
3. There shall be entered an interlocutory
Qrder * * * that the PetitiQner has established
Indian title tQ an area comprisingapprQximate1y
77,237.24 acres and delineated Qn a map prepared
by the Bureau of Land Management in August, 1967
* * *.
Pursuant tQ the above stipu1atiQn, the Commission entered an
Qrder Qn December 17, 1969 as fQl1ows:
ORDER SETTING TRIAL ON DATE OF TAKING
It appearing that the parties are in the pro­
cess Qf settling the issues in this case with the
exceptiQn Qf the date of taking, it is therefore
ORDERED that a trial Qn tne questiQn of date
Qf taking be, arid it is hereby, scheduled for
Thursday, June 18, 1970 at 10:qO a.m.
.
•
- 20 ­
. The Commission thereafter, wit?out: notice to the Govern­
ment, changed its order on January 28, 1970 as follows:
ORDER SETTING TRIAL
IT APPEARING that the parties are in the
process of settling the issues in this case
with the exception of two questions: (1) the
date of taking, and (2) whether the plaintiff·
in Docket No. 355 had original Indian title
to 8,600 acres included within the San Felipe
Indian Reservation, it is therefore
ORDERED that a trial on the question of.
date·of taking and on the question of the
Indian title of the plaintiff in Docket No.
355 to an area of approximately 8,600 acres
now within the. San Felipe Indian Reservation
be, and it is hereby, scheduled for Thursday,
June 18, 1970, at 10:00 a.m.
Although the Government proceeded to trial on the issues as
directed by the Commission, the United States has never
acquiesced in the correctness of the January 28, 1970 Order.
Based on the stipulation of t~e parties, and as clearly
recognized by the ordew of this Commission dated December 17,
1969, the only issue remaining under the stipulation is the
"date of taking."
The Indians cannot stipulate as to the
extent of their aboriginal title lands and then
accept~ng
the
benefit of the agreement contend that in addition they had
other aboriginal title lands.
The flagrant violation of their
i
II
I
I
I
- 21 ­
stipulation is made even more apparent by reference to
map incorporated with the stipulation.
entire "claimed aboriginal area"
223,00n acres.
~e
That map shows the
and states that it contained
To reach the net stipulated "aboriginal area
minus grants & Res." of 77,237.24, the deducted grants and
reservations are listed by acreage and shown on the map.
Among the areas so listed and deducted is· the "San Felipe
Indian.Reservation" containing 8,600 acret:J.
A.more obvious
violation of a stipulation is difficult to conceive.
also be noted that identical
stipu1ation~except as
It may
to name
of the pueblo and acreages, were filed in Docket Nos. 354 and
356.
No attempt was made in either of those cases to try any
issue except the date of extinguishment of aboriginal title.
Indeed, it would have been inconceivable that after the filing
of the
stip~lation
they could have claimed aboriginal title
to any of the excluded grants or reservations.
Accordingly, the claim of the Santo Domingo Pueblo to
.
an interest in the 8,600-acre San Felipe Indian Reservation
shou1d,be summarily dismissed on the basis of their stipulation.
- 22 ­
DEFENDANT'S PROPOSED FINDINGS OF FACT
. Finding No. 1
Stipulations as to the Area of Aboriginal Title
(Petitioners have no comparable finding)
On October 29, 1969, the United States and each of the
three petitioners in these cases entered into a stipulation
as to the extent of each of the aboriginal title lands in
14/
..
1848 outside prior grants and reservations.- The stipulations,
which are identical except for names and
acreage~read
as
follows:
STIPULATION AS TO STANDING TO SUE,
.
LIABILITY AND AREA
The parties in the above-entitled claim
hereby stipulate and agree as follows:
1. The Pueblo 0,£ Santo Domingo is an,cl
has been since time immemorial a tribe of
American Indians residing within the present
territorial limits of the United States.
It has been recognized by the Government
of the United States as a Tribe repres~~ted
by its Governor and Council. . This action
was instituted ~ithin the time allowed by
the Indian C1atms Commission Act by and
under the direction of the Petitioner,' "'1'1~"""ft
through its Governor and Council.
JlJ:1
The stated acreages tn each case
maps mentioned in the stipulations.
- 23 ­
2. At the time of the Treaty of Guadalupe
Hidalgo, which was concluded on February 2,
1848, 9 Stat. 922, the Pueblo of Santo Domingo
aboriginally and exclusively used and occupied
the area delineated on the attached map, an~
the Defendant is liable for extinguishing the
Petitioner's title to said area.
3. There shall be entered an interlocutory
order that the Petitioner, the Pueblo of Santo
Domingo, has the rig,ht and capacity under the
Indian Cla~s Commission Act to bring and maintain
this claim for and on behalf of the Pueblo of
Santo Domingo, that the Petitioner has established.
Indian title to an area comprising approximately
77,237.24 acres and delineated on a map prepared
by the Bureau of Land Management in August 1967,
and that the Defendant is liable for having ex­
tinguished the Petitioner's Indian title to said
area.
4. The parties agree to execute and file with
the Commission a joint motion for entry of the
interlocutory order provided for in this stipu­
lation, submitting a proposed form of·order for
the approval of the Commission.
!
!
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II
- 24 ­
Finding No. 2
Maps Portraying Specific Area for Each Petitioner
(Petitioners' Requested Finding No. 2 in each Brief)
Attached to each stipulation set out in Finding No. 1
was the map' referred to therein. . These maps in addition to
depicting the various areas enumerated below setout the
total claimed aboriginal area of each prior grant and reser­
vation.
The infonnation as depicted on the map and listed is
as follows:
A.
Santa Clara Pueblo
(Defendant's Exhibit No.1)
The July 1967- Bureau of Land Management map of the
l5/.
Santa Clara claim, which accompanied the stipulation,-shows;
.an outer boundary embracing 85,500 acres.
the
a~reages to
Within tbe boundatj.
be subtracted from the above total are the
Pueblos' own grant, the Baca Location No.1 and the S'ant's.'
-
Clara Reservation.
't
,.::.:::.•):-.<.::-:-::--
.::<".
These together amount to 43,559.14ac:res.:
Subtracted from the total claim, these leave 3l,940.86 acres.
lSI
The other two maps were made in August
1967~
- 25 ­
B. San I1defonso Pueblo
(Defendant's Exhibit No.2)
. As above, the August 1967 Bureau of Land Management map,
which accompanied the stipulation, shows an outer
embracing 120,500 acres.
c1a~ line
Within the line are the San I1defonso
grant and two reservations,
and in addition
four.
confirmed
.
.
Spanish grants.
The net aboriginal acreage is 66,227.
c. Santo Domingo Pueblo
(Defendant's Exhibit No.3)
The Bureau of Land Management map, which accompanied the
stipulation, shows a total claim area of 223,000 acres.
Within
the outer boundary, in addition to the Santo Domingo. grant and
<;"
a j oint grant to San Felipe and Santo Domingo, .there are 13
confirmed grants (one of which is the San Felipe Indian Reser­
vation of 1902).
Subtracting the total of the grants and
reservations within the claim line from the gross figure
leaves a net acreage of 77,237.24.
- 26 ­
Finding No. 3
Opening of New Mexico Territory to Settlement Under
the Publie Land Laws
(Petitioner's Requested Finding No. 1~,
Santo Domingo Brief)
~I<
By the Act of July 22, 1854, 10 Stat. 308, a Surveyor
General was authorized for the Territory of New Mexico in
16/
which all of the lands involved in this case were located.
I
I
I
By the same legislation there was donated to every white male
I
citizen residing in the territory on January 1, 1853 a quarter
section of land. ,To every white male citizen who removed to
the territory between Jgnuary 1, 1853 and January 1, 1858, tnere
I
j
was likewise donated a quarter section'of land "on condition
of actual settlement and cultivation for not less than four
171
* * *.,,-
years
Section 4 of the act excepted from its pro­
visions all mineral or school lands, saline-s, military or other
reservations and lands settled on for purposes of trade and
commerce.
As to the latter class of lands, special provisions
were made for their disposition.
All other lands not specifically
covered by the provisions of the act were made subject ,to the
operation of the Preemption Act of September 4, 1841, 5 Stat. '
181
453.­
,
i
,~.-.~
16/
I
Sec. 2.
J:l.l
~.
~I
~.;
!I
sec. 7.
'I
- 27­
Finding No. 4
Duty of the Surveyor General of New Mexico to Investigate
Land Claims Arising Under Prior Sovereigns
(Petitioner's Requested Finding No. 10,
Santo Domingo Brief)
In addition to his usual duties, the Surveyor General of
the Territory of New Mexico was also directed
***
to ascertain the origin, nature, character,
and extent of all claims to lands under the laws,
usages, and customs of Spain and Mexico; * * *.
* * * He shall make a full report on all such
claims as originated before the cession of the
territory to the United States * * * denoting
the various grades of title, with his decision
as to the validity or invalidity of each of the
same * * *; and shall also make a report in
'regard to all pueblos existing in the Territory,
.showing the extent and locality of each, stating
the number of inhabitants in the said pueblos,
respectively, and the nature of their title to
the land. Such report * * *.. shall be laid before
Congress for such action ther~on as may be deemed
just .and proper, with a view to confirm bona fide
grants, and give full effect to the treaty o f ­
eighteen hundred and forty-eight between the
United States and Mexico; and, until the final
action of Congress on such claims, all lands
covered thereby 'shall be reserved from sale or
other disposal by the government and sh~ll not
be subject to the donations granf~1 by the
previ~us provisions of this act.-.
,J.!3/ Sec. 8.
i
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- 28 ­
Finding No. 5
Reports of the Surveyor General on the Land
Holdings of the Pueblo Indians
(Petitioners have no comparable finding)
Pursuant to the Provisions of the Act of July 22. 1854.
,
10 Stat. 308, the Surveyor General of New Mexico made reports
20/ 21/
in 1855- and 1856.- In addition to reporting on public land
suryeys and private land claims, the Surveyor General made
22/
the following report with respect to the Pueblo land c1afms:-- ­
Since the establishment of this office.
thirteen claims of Pueblo Indians, to lands
granted to them by the government of Spain,
have been examined and approved by this .
office; copies of the grants and-testimony
are herewith transmitted, market from No. 4
to No. 16, for the action- of Congress in
the premises.
The Pueblos of Taos, Santa Clara, Tesuque,
San Ildefonso, and Pojoaque have been deprived
of, and have lost the original title deeds to,
their , ands , and tes timony has been taken by
20/
H. Rept. No. 1, 34th Cong. , 1st sess. (1855) pp. 301-303.
21/
S. Rept. No. 5, 34th Congo , 3d sess.(1856) p. 411,
22/
M·,
pp , 411-412.
ss ass­
i
r ,
;.. 29 ­
this office to show that the title deeds to
their lands were in existence t and their loss
partially accounted for.
The following are the names of the Pueblos
whose claims have been examined and approved,
viz:
J/ .
Jemes, in Santa Ana county.
Acoma, in Valencia county.
San Juan, in Rio Arriba county.
Picuris t in Taos county •.
San Felipe, in Bernalillo county.
Pecos, in San Miguel county.
Cochiti, in Santa Ana county.
Santo Domf.ngo , in Santa Ana county.
Taos, in Taos county.
SantaClara t in Rio Arriba county.
Tesuque, in Santa Fe county.
Sanlldefonso t in Santa Fe county.
Pojoaque, in Santa Fe county.
The Pueblo Indians are constantly encroached
upon by Mexican "citizens t and in many instances
the Indians are despoiled of their best lands;
I therefore respectfully recommend that these
claims be confirmed by Congress as speedily as
possible, and that an appropriation be made to
survey their lands, in order that their boundaries
may be permanently fixed.
j~
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- 30 ­
Finding No",-\
Confirmation of the Pueblo Land Holdings by Congress
(Petitioners have no comparable finding)
By the Act of December 22, 1858, 11 Stat. 314,
Congre~s
confirmed the report of the Surveyor General on the Pueblo
land holdings as follows:
Be it enacted by the Senate and House of
Representatives of the United States of America
in Congress assembled, That the Pueblo land
claims in the Territory of New Mexico designated
in the corrected lists as-­
A, Pueblo of
Ana, "
B, cPueblo of
C, Pueblo- of
Ariba,
D, Pueblo of
E, Pueblo of
Bernalillo,
F, Pueblo of
Miguel,
G, Pueblo of
Santa Ana,
H, Pueblo of
of Santa Ana,
I, Pueblo of
K, Pueblo of
of Rio Ariba,
T_, Pueblo of
Santa Fe,
. M, Pueblo of
of Santa Fe,
N, Pueblo of
Santa Fe,
Jemes in the county of Santa
Acoma in the county of Valencia,
San Juan in the county of Rio
Picuris in the county of Taos,
San Felipe in the county of
Pecos in the county of San
Cochiti in the county of
I
Santo Domingo in the county
1
Taos in the county of Taos,
Santa Clara in the couney
Tesuque in the county of :
San Ildefonso in the county
Pojoaque in the county of
I'
I
- 31 ­
reported upon favorably by the said surveyor- .
general, on the thirtieth of Novemb~r, eighteen
hundred and fifty-six.
*
* * * and
*
*
*
*
the Commissioner of the Land-Office
shall issue the necessary instructions for
the survey.of all of said claims, as recommended
for confirmation by the said surveyor-general,
and shall cause a patent to Lsaur therefor as
in ordinary cases to private individuals:
Provided, That this confirmation shall only
be construed as a relinquishment of all title
and claim of the United States to any of said
lands, and shall not affect any adverse valid ~
rights, should such exist.
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- 32 ­
Finding No. 7
Date of Extinguishment of Aboriginal Title for the Pueblos of
San Ildefonso, Santo Domingo and Santa Clara was 1858
(Petitioner's Requested Finding Nos. 19, 20, .
21 and 22, Santo Domingo Brief)
Based on the facts recited in Finding Nos. 1 through
6, as well as the Conclusions of Law below, the Commission
finds as a fact and concludes as a matter of law that the
aboriginal title for the Pueblos of San lldefonso, Santo
Domingo and Santa
Cla~a
was extinguished either by the Acto.f
July 22, 1854, 10 Stat. 308, or the Act of 1?ecember 22,
11 Stat. 374.
Therefore, the determination of the
is that the date of extinguishment shall be
18S8~
CODIJlissi.o1il~
December22,18S~.
~1:3-'
- 33 ­
Finding No. 8
Petitioners' E~idence at the Trial on the Date of
Extinguishment of Aboriginal Indian Title
(Petitioner's Requested Finding Nos. 19, 20,
21 and 22, Santo Domingo Brief)
At the trial on the issue of the date of extinguishment
of aboriginal title, held on June 18, 1970, the evidence
presented by the petitioners was documentary and related
principally to the issue of aboriginal title of the Santo
~
Domingo Pueblo to the San Felipe Indian Reservation.
In:
addition, petitioners presented six exhibits r~lating to
. . 24/
the date of extinguishment of aboriginal title.-- The first
two of these relate to the establishment of Jemez Forest
25/
Reserve in 1905.-- The third and fourth exhibits relate to
the establishment of Grazing District No.1 under the Taylor
Grazing Act in
2&l
1941~
The fifth and sixth exhibits concern
the dates certain patents were. made within the
ab~riginal
claims area and the dates in some instances of the application
23/ Pet. Exs. IT-l through 10, IT-15 through 20. B-A,. l3-B
and 14.
24/
Pet. Exs. TD-l through 6.
25/
Pet. Exs. TD-l and 2.
26/
Pet. Exs. TD-3 and 4.
.'"
jo
for such
· - 34 ­
ill
patents~
For the reasons set out hereafter under our Conclusions
of Law it is unnecessary to make findings of fact on the
aboriginal title of the Santo Domingo Pueblo to the San Felipe
Indian Reservation.
Nor is it necessary to weigh the evidence
presented in the six exhibits relating to the date of ex­
tinguishment.
There is other unrebutted evidence, presented
by Mr•. Samuel C. Nichols, and matters of which we take judicial
notice, that the date of extinguishment occurred long before
the events referred to in these .six exhibits.
'll../
?:!I
Pet. Exs , TD-5 and 6.
28/ To the extent that Petitioners' Exhibits TD-5 andTD-(;
Show patents and patent applications prior to December 31,
1905, they support the conclusion of the CODIIliss::Lon set. Out in
Finding 10, below, that the interruption of the continUous,
exclusive occupancy and .use of their aboriginal land by the
petitioners was effectively interrupted by that date~
I
.,
!
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- 35 ­
Finding No. 9
Defendant's Evidence on the Trial of Date of Extinguishment
of Aboriginal Indian Title
(Petitioners have no comparable finding)
At the trial on the issue of the date of extinguishment
of aboriginal title, the defendant presented the testimony
of Samuel C. Nichols, a retired employee of the Department
29/
of the Interior.-- Mr. Nichols is an expert in pUblic land
matters, and before retirement was Chief of the Case,Processing
30/
Section of Field Services, Bureau of Land Management.-··Mr •..
Mr. Nichols testified as to all public land entries in the
32/
aboriginal claim areas prior to 1906.-- The results of his
29/
Tr. 21-23.,
30/
~.
~
32/
..
Tr • 23-36, 40-44.
Ibid.
II
i
- 36 ­
33/
findings were introduced in evidence -- and show that there
were approximately 232 entries made in this period beginning
in 1870.
The types of entries and ear1ies,t dates of each
6-A, 6-B and 6-F.
28, shown on Defendant's Exhibits S-G,
The earliest dates are i887.
S~H,
(Act of
I
i
May 20, IP.62 , as amended.)
Small Holding Claims:
II
I
type are as follows:
'Homesteads:
L
14, Defendant's Exhibits
I
4~D,
i
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6-B and 6-F.
Earliest dates of entry 1876.
(Act of March
3, 1891, as amjhded.)
Preemption Declaratory Statements:
Exhibits S-F, 6-A, 6-F and 6-G.
Exhibit 6-A.
7, Defendant's
Earliest entry 1871, Defendant's
(Act of September 4, J.84l, ,5
Stat.4~3;
Ae:t: .of:
March 3, 1843, 5 Stat. 619-620; Act of June 2, 1862, 12 ,Stat •
. 410.)
Preemption:
1, as shown on Defendant's Exhibit6-A.
Earliest entry 1891.
(~.).
Forest Lieu Selection:
1, Defendant's Exhibit 5-g.
<..."
Earliest entry 1900.
(Acts of June 4, 1897, 30 Stat. 3lt"
and June 6, 1900, 31 Stat. 614.)
~/
Def. Exs. 4-A through 6-L.
36;
i
- 37 ­
Mineral Entries:
15, Defendant's Exhibits 6.:.Aand6....B.
Earliest entry 1885, Defendant's Exhibit 6-B.
(ActotMaylO,
1872, 17 Stat. 91, as amended.)
Mineral
App1ication~:
Earliest entry 1885.
Cash Entries:
2, Defendant's Exhibit 6-B.
(Ibid.).
12, Defendant's Exhibits 6-A and 6-B.
Earliest entry 1870,. Defendant's Exhibit 6-B.
(Act of
April 24, 1820, as amended.)
Coal Declaratory Statements:
6-A, 6-F and 6-G.
6-A.
Earliest entry 1879, Defendant's Exhibit
(Act of Ma~ch 3, 1873, 17 Stat. 607.) (~.)~
Coal Cash Entries:
6-G.
141, Defendant's Exhibits
11, Defendant's Exhibits 6-F and·
Earliest entry 1903.
I
To that number must be added the homestead entry, on
April 8, 1901, of Julio Garduno, within the disputed San
Felipe Reservation, which is involved in the second cause
of action herein.
,
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!
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t
FindiI'igNd. il0;
Finding as to Date of IntettUpt$O'l1.,Qf the Indians' Contin1.1ous,
Exclusive Occu~~cy of the Aboriginal Title Areas_
.' . (Petitioner~·sRequested 'Fi'l1.dit1~N~svr19~}2t);c<u
21 and 22, S~t~ Domingo Brief)
.
Based on the evidence presented to the Commission at
.'
;;.
: 1,1
,(~.
~':
~"";
;;,."--,__..,,:~"'-:i··;-'?·.;"_~·;
the trial held on June 18, 1970 as outlined in Findings 8
. ;~~;
·..i
i.I - L_:~
been incursions into the aboriginal title areas claimed by
. . '1 '.
'.'
~-::t':"
r
'foG -or ;-;~:»~lJ':f:>(~~~-,
the three Pueblos in these cases to such a degree that not
'
....,'
,
later than 1905 none of these Pueblos maintained continuous
exclusive occupancy and use of the claimed aboriginal title
",-_.;
areas.
Therefore, even if ·aboriginal Indian title had not
been extinguished by acts of Congress in 1858 as detemned
,
. ;
in Finding No.7, above, it wou;d have ~een extingu~sh~d,1?r,:
"
the interruption of continuous, exclusive
use as of December 31, 1905.
l ..
- 39 ­
Finding No. 11
Conclusion
The stipulations made in
the~~
'.',
cases together
evidence presented viewed overall show that the three
petitioners, being tribes,
ba~ds
or indentifiable grOUps
American Indians residing within the territorial limits' of
the United States, each possessed on February 2, 1848 the
aboriginal or Indian title, based on continuous, exclusive
occupancy and use from time immemorial, of the 'areas
below:
Santa C1ara Pueblo
The aboriginal acreages shown on
D~fendant's
. 1 are divided into three parts as follows:
Exhibit
(a) a continuous
strip east to west along the bottom of the
(b) .a rectangular separate segment at the extrero.eeastem
of the claim as mapped; and (c) a continuous east-to-west strip,
also separate, across the top of the claimed area.
The description of the net Indian title acreages as
prepared by the Bureau of Land Management is as follows:
A. Coumencing at the intersection of the north
boundary of the San Ildefonso Grant and the. west
boundary of the Santa Clara Pueblo Grant, in
Section 30, T. 20 N., R. 8 E.;,..
.
- 40 Thence west along .rhe north boundaryp~. . ~~~
San Ildefonso Grant to thepointwheresl3.id
boundary intersects tr~ridge between Garcia
Canyon and Chupaderos Canyon;
Thence northwesterly, westerly, and sou~~:"
westerly along said ridge to a point neat the
northwest corner of Sec t Ibn 26 of T.20N.,
R. 6 E.;
Thence south to the mountain ridge imme4iately
north of Guaje Canyon;
Thence westerly and northwesterly alongisaid
ridge to the point of intersection with the
south boundary of the Santa Clara Indial\
Reservation;
Thence· easterly on the boundary of the ...Santa
Clara Indian Reservation, also the lit:l~.; ~etweeD.
Sandoval and Los Alamos counties, to the; point'
of intersection with the west boundarybf the
Santa Clara Pueblo Grant;
.
,
-.
.
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Thence south on the west bounda.ryOfthe;;Santa
Clara Pueblo Grant to the point of beginning.
B. Commencing at the southwest corner.C>f
Santa Cruz Grant and the east b,oundaryof Sant:~
Clara Pueblo Grant;
Thence northeasterly along the south~o~dary
of the Santa Cruz Grant to a pointoQ;.said
boundary due south of Quarteles;
Thence south to the point of intersect~0tl.wi~
the north boundary of the Pojoaque PW!k!()Gr~!=;
Thence west on the north boundary Of'1:h~;;!P3j~~qu.~
Pueblo Grant to the point of intersectionwitb
the east boundary of the Santa Clara PUeblo
Grant;
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Thence north on the east boundary of Santa
Clara Pueblo Grant to the point of beginning.
C. Commencing at a point in Section 31,T.
21 N., R. 5 E., on the divide between the
source of Santa Clara Creek and the source of
Rito del los Indios, and on the north boundary
of the Baca Location No.1;
Thence north to the point of intersection with
the south boundary of the Po1vader.a Grant;
Thence east to the point of intersection with
the west boundary of the Juan Jose Lobato
Grant;
Thence southeasterly on said boundary to
Tschicoma Mountain;
Thence with the same boundary northeasterly
and east to the point of intersection with the
west boundary of the Bartolome Sanchez Grant;
Thence south on the west boundary of said grant
to the northwest corner of the Santa Clara
Pueblo Grant;
Thence continuing south to the northeast corner
of the Santa Clara Indian Reservation;
Thence following the Rio Arriba and Sandoval
county line, which is the north boundary >of
Santa Clara Indian Reservation, in a 'westerly
direction to the northeast corner of the Baca
Location No.1;
Thence north and west following the boundary
of the Baca Location No. 1 to the point of
beginning.
Containing 31,940.86 acres.
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San
The San Ildefonso Indian title acreages,
Defendant's Exhibit No.2, which are not
.described by the Bureau of Land Management as
Commencing at a mountain peak located about
500 feet due south of the southwest corner
of the Santa Clara Reservation;
Thence southwesterly and westerly
mountain north of GuajeCanyon to
said ridge lying northeast of the southWest
corner c'2 Section 26, T. 20 N., R. 6 E.;
Thence due north to a
of Chupadaros Canyon;
Thence northeasterly, easterly and
along said ridge to the point where
the north boundary of the San
Thence due east along the north bounda.ry
San Ildefonso Pueblo Grant to the nc·'!'t·he;!i's1:
corner of said Grant;
Thence southeasterly and
line running halfway in between
boundary of the San Ildefonso Pueblo
the west boundary of· the Pojoaqu.e Pu,eblo iGlt'atit,.
and continuing due south to the Ca,lalbs,so"Arr'oy'o;
Thence westerly along the Calabaso Ar:ro'7o
Canada Ancha;
Thence northwesterly along Canada
Rio Grandt;;;
Thence southwesterly along the Rio
the ridge lying immediately
de los Frijoles;
AD~n,a
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Thence northwesterly and northerly along said
ridge to the source of the Rito de los Frijoles;
Thence northerly to the peak of PaJarito
Mountain;
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Thence northerly to the point of beginning;
with the following exceptions:
, San Ildefonso Pueblo Grant
Jacona Grant
Cajo Del Rio Grant
Ramon Vigil Grant
Baca Location No. I
Santa Clara Reservation
San Ildefonso Rese.rvation
insof~r as they lie within the perimeter described.
Containing 66 t227.00 acres.
Santo Domingo Pueblo
The Indian title lands are compensable acreages aggregating
77,237.24 acres and are divided into six separate tracts of
land described "A" to "F" •. The "A" segment is on the extreme
northern tip adjace.nt to Canada de Cochiti; segment "B" is
immediately below Canada de Cochiti; area
"c" is in the
south-central part of the claim; and part "D" is in the
::1ortheast corner of ,the claimed area while "E" an'tl IIF" are
immediately below the Sitio de Juana Lopez Grant.
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tracts as follows:
A. From Cerro la Jara due
Peralta Canyon;
Thence southeasterly along the Peralta.
Canyon to a point where the canyonin~ersects
the northern boundary of the Canada de Cochiti
Grant;
Thence due west along said boundary t.otne
. point of intersection with a line projected
from Bear Springs Peak to Cerro la Jara;
Thence northeasterly along said line
point of beginning.
B. From Bear Springs Peak in sectdon 30~ T.
17 N., R. 4 E., along a line projected tOWard
Cerro La Jara, northeasterly to the point: of
intersection with the southern bOtindai"yof the
Canada de Cochiti Grant;
.
Thence. due east along said boundary
Peralta Canyon;
,.
.~
Thence due south along the westernboundary?~
the Cochi.ti Pueblo Grant to the point of inter';'
section with the northern boundary of theSari~o
Domingo Pueblo Grant;
.
'.
Thencenorthwesterly,~outh, and southeasterly
along the Santo Domingo Pueblo GrantboundiJ:Y.
to the northwest corner of the
Felipe
Pueblo Grant;
San
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Thence due south along the wes t bounda....~
of the San Felipe Pueblo Grant to the point
of intersection with the township line between
Tps. 14 and 15 N., R. 4 E.;
lbence northwesterly, on a line projected to
strike Borrego Spring, to the point of inter­ section with the east boundary of the Ojo del
Borrego Grant;
Thence,north and westerly along the boundary
of the OJ 0 del Borrego Grant to a point on the
previously mentioned tine projected to strike
Borrego· Spring;
Thence northwesterly along said line to Borrego
Spring;
Thence northeasterly to Bear Springs Peak, the
point of beginning.
c. From the southeast corne:':' of the Santo
Domingo Pueblo Grant south along the western
boundary of the Mesita de Juana Lopez Grant
to the point of intersection with the north
boundary of the Ortiz Mine Grant;
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Thence west and south along the boundary of
the Ortiz Mine Grant to the poi~t of intersection
with aline projected from Tuerto Spring north­
westerly to Arroyo Coyote;
Thence northwesterly along said line to the
Arroyo Coyote;
.Thence southwesterly, westerly, and north­
. westerly along Arroyo Coyote to the point of
intersection with the east boundary of the Town
of Tejon Grant;
Thence north and west on the boundary of the
Town of Tejon Grant to the Arroyo Coyote;
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Thence northwesterly along Arroyo COyote
the eastern boundary of the
boundary of the San Felipe Indian Reserv,a.t:l011;
Thence north along zhe eastern boundary
San Felipe Indian Reservation to the pOli~~
intersection with the south boundar>' __ . . _•.._
Santo DOIilingo Pueblo Grant;
Thence southeasterly along the southbblll'ldaiy
of the Santo Domingo Pueblo Grant to the <place
of beginning.
'
.. _,,-.
D. From the Turquoise Trading Post sO}ltIlellste~,!y~
on a line projected tostrikeMt.Cha~£~~untl,
to the point of intersection withtheJ~~
boundary of the Sidi) de los Cerrillos{.Grant;
Thence westerly along the boundal"ie_s.()f~;;~~eT~~;E~O
de los Cerrillos Grant» . the Sitio de<J'll~~pez··
Grant, and the Mesita de Juana Lopez c.;r~tEC!<
the point of intersection with the e~stjibou'lid.~
of the La Majada Grant;
. .
Thence north on the east boundary ofth~La;:<
Maj ada Grant to a point on the Santa Fe River; .
Thence easterly along the Santa Fe Rivette,
the point of intersection with the eastboundatj
of Section 1, T. 15 N., R. 7 Eo;
Thence southeasterly to the Turquoise Trading
Post, the point of beginning.
E.
From the southwest corner of theSitio
Juana Lopez Grant easterly along the;~()\i1:h
boundaries of the Sitio de Juana Lop~zc;raIl.t:
and the Sido de los Cerrillos Grant~oapo~nt:
on a line p;ojected from Turquoise Trading !~~f
southeasterly to Mt. Chalchihuntl;
...
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Thence southeasterly along said line to
Mt. Chalchi'huntl;
Thence southwesterly to Devil~ Throne;
Thence northwesterly and westerly along the
boundary of the Alamitos or Juan Salas Grants
to the point of intersection with the boundary
of the Mesita de Juana Lopez Grant;
Thence north on the east boundary of the Mesita
de Juana· Lopez Grant to the point of beginning.
F. From Cerrillos southwesterly on a line .
projected to Madrid, to the point of intersection
with the east boundary of the Mesita de Juana
Lopez Grant;
Thence north along said boundary to the southwest
corner of the Alamitos or Juan Salas Grants;
Thence southeasterly and north along the boundary
of the Alamitos or Juan Salas Grants to the point
of intersection with a line projected from Devils'
Throne to Cerrillos;
Tltence southeasterly along said line to Cerrillos,
the point of beginning.
Containing 77,237.24 acres.
Each of the petitioners was deprived of its aboriginaL
or Indian title to the areas described above by the United
States on December 22, 1858 without payment of corisidera:tion~
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CONCLUSIONS OF LAW
Based on the stipulations and evidence presented in
these cases as outlined ill the above findings of fact, the
Commission concludes asa matter of law:
1.
That each of the petitioners and the United States
have entered into stipulations filed with this Commission on
October 29, 1969 as to the aboriginal title area exclusively
occupied and used by each of the Pueblos as of the date .
United States $overeignty attached by the Treaty of Guada1~pe
Hida16o, 9 Stat. 922, February 2, 1848.
Both the petitioners.
and the United States are bound by these stipulations and
any claims as to aboriginal or Indian citle to additional
areas will not be heard by this Commission..' Accordingly ~ che
Commission denies as a matter of law the claim of the
Pl!~blo
of Santo JJomingo to an interest in the 8,600-acre San Felipa
Indian Reservation based on aboriginal title.
2.
AI] aboriginal or Indian title of the Pueblos of
San Ildefonsa, Santo Domingo and Santa Clara to areas outside
the grants confirmed by the Act of December 22,' 1858, 11 Stat.
374, were by that act extinguished.
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3.
The extinguishment of the aboriginal or Indian
title of the three Pueblos without payment of consideration
entitles each of the petitioners to an award for the fair
market value on December 22, 1858 of its aboriginal title area,
as described in Finding No. 11, less gratuitous offsets,
pursuant to section 2, first paragraph, c Lause 5, and paragraph
3. of the Indian Claims Commission Act, 60 Stat. 1049, 1050, 25
u.s.c.
4.
sec. 70a.
Accordingly, . the cases will now proceed to deteDDina­
tions c£ the fair market value for the aboriginal title areas
as of December 22, 1858.
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l.
DEFENDANT'S OBJECTIONS TO PETITIONERS' REQUESTED
FINDINGS OF FACT
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Stipulated Matters
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Finding No. 1
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In each of the three briefs, no objection.
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Finding No. 2
The Government objects to this finding in each brief.
The metes and bounds descriptions of the outer perimeter
and net acreages given in each brief are generally accurate .
in
a~cordance
with the stipulations of the parties.
However,
none of the interior grant and reservation perimeters are
given although they are expressly stated in the stipulations
through incorporation of the maps.
For the correct metes
and bounds description properly excluding the interior prior
grants and reserves, see Government's Proposed Finding No. 11.
The Government cbjects to the last sentence of this
finding in the Santo Domingo brief as an apparent attempt
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to exclude the 8,600 acres in the San Felipe Indian Reserva­
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tion from the stipulation.
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The 8,600 acres were included in
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the outer perimeter but excluded from the stipulated aboriginal
title area.
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Finding No. 3
In each case, no objection.
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Indian Title to San Felipe Reservation
,
Finding Nos. 4-18
(Santo Domingo Brief, Docket No. 355)
f
The Government objects to these findings as being
irrelevant.
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The sfipulation of the parties filed October 29
e
1969'sets the outer perimeter of the Santo Domingo aboriginal
title claim, and the net acreage of the aboriginal title claim
as of February 2, 1848.
The San Felipe Indian Reservation is
expressly excluded frOll. the net acreage.
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Valuation Dates
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Finding No. 19
34/
(Santo Domingo Brief, Docket No. 355)-­
The Government objects to this finding.
There is no
evidence to support the conclusion that aboriginal title
was extinguished as of the date individual patents were issued.
Further, the proposed findit:lg is based on an erroneous legal
conclusion that aboriginal title is extinguished piecemeal
even after the continuous, exclusive occupation and use of
the aboriginal title area by the Indians has been substantially·
interrupted by settlers moving into the area under the public
land laws.
.
34/ The identical finding is incorporated by reference
as Finding No. 4 in the ~ Ildefonso Brief, Docket No. 354;­
and the Santa Clara Brief, Docket No. 356.
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Finding No. 20
35/
(Santo Domingo Brief, Docket No. 355)-­
The Government objects to this proposed finding as
iDUD.aterial.
Since the Indians' aboriginal title had been
extinguished by
th~
Act of December 22, 1858, 11 Stat. 374,
the establishment of the Jemez Forest Reserve in 1905 is of
no consequence to that issue.
To the extent the proposed
finding .has any relevance, it bolsters the Government's
contention that not later than December 31, .1905.- the Indians'
continuous, exclusive occupancy and use of aboriginal title·
lands outside their pueblo grants had been decisively broken.
35/ The identical finding, except for the description of
the land incorporated in the Jemez Forest Reserve on October
12, 1905, is incorporated by reference as Finding No. S in
the .2!illI1defonso Brief, Docket No. 354, and the Santa Clara
Brief, Docket No. 356.
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Finding koso 21 and 22
~
(Santo Domingo Brief, Docket.No. 355)
The Government objects to these proposed findings as
itmnateria1.
Since the Indians' aboriginal title had been
extinguished-by the Act of December 22, 1858, 11 Stat. 374,
the establishment of the Taylor Grazing District No. 1 in
1941 is of no consequence to that issue.
F,inding Nos. 23, 8 and 9
(Santo 'Domingo Brief, Docket No. 355, .
San I1defonso Brief, Docket No. 354,
and Santa Clara Brief, Docket No. 356)
The Government has no objection to these proposed findings
except as to the reference to the description in Requested
Finding No.2.
No.2.
See our objections to the Requested Finding
.~
36/ The identical findings are incorporated by reference
as Finding Nos. 6 and 7 in the .2!!l Ildefonso Brief, Docket
No. 354, and the Santa Clara Brief, Docket No. 356.
,,
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CONCLUSION
For the reasons stated above, the Commission should
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hold that the Indians aboriginal title to
was
extingui.~hed
lands~
as stipulated
"as of December 22, 1858, and that the
determination of fair market value as of that date should
proceed.
s~J:~
Assistant
"~~ (2l!ft.§J
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" Howard G. Campb;;'lf" V
Attorney
.
Atto~ey
General
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CERTIFICATE OF SERVICE
I hereby certify that on the 11 day of January 1971
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10 copies of the foregoing Defendant's Brief, Proposed
Findings of Fact and Objections to Petitioners' Requested
Findings of Fact weremai1ed to the attorneys of record for
petitioners, Richard Schifter, Esquire and Bobo Dean, Esquire, .
Strasser, Spiegelberg, Fried, Frank and Kampelman,1700 K
Street, N. W., Washington, D. C.
20006.
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Attorney