Public Service Co. of New Mexico v. Barboan
857 F.3d 1101
10th Cir.2017Background
- PNM sought to condemn a perpetual 50-foot right-of-way across five formerly allotted parcels after the Bureau of Indian Affairs declined to renew its 1960 right-of-way because consenting individual owners revoked consent.
- Two of the parcels (Allotments 1160 and 1392) include undivided fractional beneficial interests now owned by the Navajo Nation (13.6% and 0.14%, respectively); both remained held in trust by the United States.
- PNM sued under 25 U.S.C. § 357 (Act of Mar. 3, 1901), arguing that any parcel once allotted remains subject to condemnation under § 357 regardless of subsequent ownership changes.
- The district court dismissed the condemnation claims as to the two parcels holding Navajo interests for lack of subject-matter jurisdiction, concluding § 357 does not authorize condemnation of tribal land; it certified four interlocutory questions.
- The Tenth Circuit reviewed de novo, applying the canon to construe Indian statutes ambiguously in favor of tribes, and affirmed dismissal as to the two parcels in which the Navajo Nation holds an interest.
Issues
| Issue | Plaintiff's Argument (PNM) | Defendant's Argument (Navajo Nation / U.S.) | Held |
|---|---|---|---|
| Does 25 U.S.C. § 357 authorize condemnation of an allotted parcel in which a tribe holds an undivided interest? | § 357 applies to any land that was allotted in severalty; once-allotted-always-allotted — subsequent tribal acquisition does not remove condemnation authority. | § 357 authorizes condemnation only of land "allotted in severalty to Indians" currently held by individuals; any tribal interest (even fractional) converts the parcel to tribal land outside § 357. | Held: § 357 does not authorize condemnation of parcels in which the tribe holds an interest; tribal interest makes the parcel tribal land beyond § 357. |
| Is an Indian tribe a required party under Rule 19(a) to a § 357 condemnation when it holds an interest? | (If § 357 applies) tribe need not be a necessary party as condemnation targets the land/in rem. | Tribe is a necessary party because it holds an interest that would be affected; sovereign immunity may bar joinder. | District court found tribe a required party and could not be joined due to sovereign immunity (not reached on appeal). |
| Does tribal sovereign immunity bar a § 357 condemnation action against lands in which the tribe holds an interest? | Any implicit abrogation of immunity exists because § 357 permits condemnation of allotted land. | Congressional abrogation of tribal immunity must be unequivocal; § 357 does not expressly abrogate immunity. | Court noted abrogation must be explicit; PNM did not show explicit abrogation (alternate grounds would prevent proceeding). |
| Can condemnation proceed in tribe's absence under Rule 19(b) where joinder is barred? | PNM contended proceedings could continue against individual allottees/owners. | Tribe’s absence makes litigation unfair and incomplete; cannot proceed equitably without tribe. | District court found action could not proceed in equity and good conscience without the Nation; Tenth Circuit affirmed dismissal on § 357 ground, which also moots further Rule 19 analysis. |
Key Cases Cited
- Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641 (discusses Congress’s power to authorize condemnation of tribal lands)
- Solem v. Bartlett, 465 U.S. 463 (historical expectations about allotment and reservation status)
- Hodel v. Irving, 481 U.S. 704 (allotment era consequences and fractionation problem)
- County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (context on allotment history and fee-title consequences)
- United States v. Clarke, 445 U.S. 253 (procedural interpretation of condemnation under § 357)
- Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (plain-meaning statutory interpretation principles)
- Transok Pipeline Co. v. Darks, 565 F.2d 1150 (10th Cir.) (§ 357 reaches allotted land after passage to heirs)
- Nebraska Public Power Dist. v. 100.95 Acres of Land in Thurston County, 719 F.2d 956 (8th Cir.) (any tribal interest makes tract tribal land outside § 357)
- Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150 (10th Cir.) (tribal sovereign immunity principles)