*1 MOUNTAIN STATES TELEPHONE & TELEGRAPH
CO. v. PUEBLO OF SANTA ANA Argued February 20, No. 84-262. 1985 Decided June *2 Stevens, J., opinion delivered the Court, in which Burger, J., White, C. Rehnquist, O’Connor, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall Blackmun, JJ., joined, post, p. Powell, J., part took no in the decision of the case. Marie
Kathryn Krause argued the cause for petitioner. With her on the briefs were H. William Allen and Russell H. Carpenter, Jr. E.
Scott Borg argued cause for him respondent. With on the brief was Richard W. Hughes.* delivered the opinion of the Court.
Justice Stevens In 1928, Mountain States Telephone and Com- Telegraph pany an purchased easement from the Pueblo of Santa Ana for a telephone line. Mountain States contends that the *3 conveyance of this easement was §17 under valid Pueblo Lands Act of 1924, 43 Stat. 641, because it “first was approved the by Secretary of the Interior.”1 The Pueblo contends §17 only authorizes such transfers “as may hereafter be provided by Congress,” and that Congress never provided legislation authorizing of conveyance Pueblo lands with the approval of the Secretary. Both con- structions find some in support the language §of 17. * Briefs of amici curiae urging reversal were filed for the United States Lee, Solicitor General F. Henry by II, Habicht Deputy Solicitor General Claiborne, Kneedler, Edwin S. Klarquist; and Robert L. for the State of by New Mexico Bardacke, Paul Attorney General, Charlotte TJram and Thompson,
Bruce Attorneys General, Assistant Hugh Parry, Spe W. and cial Attorney General; Assistant City for the of John by Escondido et al. Schell, R. Foster, Kent H. Engstrand, Paul D. Lincoln; and Donald R. Atchison, for Topeka and Svolos, Co. Gus Railway by Santa Fe John R. Lynn Slade, H. Cooney, Thai; and John S. and for Public Service Com pany of New Mexico Robert H. Clark. by Briefs of amici curiae urging affirmance were filed for the All Indian L. Lamar Parrish and by Council et al. Stetson; Catherine Baker Chestnut; Peter C. by the Pueblo de Acoma and for the Pueblo Taos by William C. Schaab. infra, 1 43 Stat. complete for the text of 17.
I—I provide legislation for the “to enacted very complicated adjudication and a and settlement of final conflicting affecting claimed titles series of difficult Re The Committee Indians of New Mexico.”2 the Pueblo history “interesting unique ports review the legislation explain why special remedial Indians”3 necessary. Span and the first Indians were found Coronado “These residing villages many explorers of them ish occupying Indians now occ that the Pueblo the same lands days, Spanish conquerors upy.”4 From the earliest they rights recognized still in the lands the Pueblos’ ownership occupy,5 lands was confirmed of these and their independent King Spain. grants Later, land from political limited civil and of Mexico extended Government rights them in the own and confirmed Indians, to the Pueblo ership their lands. territory acquired that is now New
The United States Treaty Guadalupe-Hidalgo.6 in 1848 under the Mexico During period New Mexico 1848and when between territory members of that inhabitants State, became —and generally believed that advised of the bar who them— dispose power the same unrestricted Pueblo Indians had originated Span- had whose title their lands as non-Indians *4 supported grants. decisions of the view was This ish (1924). Cong., Sess., 492, 68th 1st 3 Rep. No. 2 S. 3 Report Report incorporates the Senate verbatim The House Ibid. (1924). 787, Cong., Rep. No. 68th 1st Sess. text. H. R. 4 492, Rep. No. at 3. S. 5 population a total Indian of Act affected “20 Pueblos . . . with The 1924 17,000 acres of 6,500 8,000. Each consists of about between boundaries, 340,000 of acres all.” Ibid. or a total land within its exterior 6 Limits, Peace, Friendship, and Settlement between Treaty of Republic, Mexican 9 Stat. 922. of America and the United States
241
Supreme Court of the Territory of
Mexico,7
New
and by this
Court’s square
United States v. Joseph, 94 U. S.
holding
614 (1877),8 the Pueblo Indians were not an “Indian
tribe” protected by the Nonintercourse Act.9 As a result,
it
Lucero,
United States v.
1 N.
(1869);
M. 422
Nambe v.
of
Romero, 10
58,
N. M.
tion ... all they forbid idea should be classed with the Indian tribes for whom the intercourse acts were made . . . .” United States v. Joseph, S., 94 U. at 616-617 (quoting United Lucero, States v. 1 M., N. 453). 9The current version of the Nonintercourse Act was enacted of the Trade and Intercourse Act of 1834: purchase, grant, “[N]o lease, or conveyance other lands, any or of title thereto, or any claim from Indian nation or Indians, tribe shall be of validity in law equity, unless the same be treaty made or convention entered pursuant into to the Constitution.” 4 Stat. U. S. C. Section Act is the last in a series of enactments beginning §with 4 of the Indian Trade and Act Nonintercourse of 1790. 1 Stat. 138. County Oneida Oneida Indian York, Nation New U. S. In Congress extended provisions *5 242 convey good thought could title that the Pueblo Indians any notwithstanding prohibition of the Act’s their lands conveyance
“purchase, grant, . . . of lands lease, or other any 25 C. Indians.” Stat. U. S. . . . tribe of from §177. concerning unique opinion prevailing status question into as a result Indians was drawn regulate liquor
attempt by
trade
authorities to
federal
They orginally brought charges under an
with the Pueblos.
prohibiting
liquor to
the sale of
1897 criminal statute
Joseph,
Relying
however,
on
the Territorial
“Indian.”10
Supreme
that the
held,
Pueblos were
Court
response,
meaning
In
the statute.11
within the
“Indians”
expressly
Enabling
required
Act of 1910
Mexico
the New
prohibit “the introduction
the new State’s Constitution
that
country,
liquors into
which term shall also include
Indian
occupied by
now owned or
the Pueblo Indians
all lands
Sandoval,
In
v.
The narrow decided Sandoval dependent of the Pueblo Indians was such status prohibit expressly intoxi the introduction of could regulate power cating liquors “To their lands under its into Art. Const., . . the Indian Tribes.” U. S. . with Commerce reaching the Court decision, however, In cl. 3. I, 8, the Indian and intercourse with regulating now in force trade “the laws Territor[y] of New Mexico.” Stat. to “the tribes tribes” 587. 506. Stat. Mares, M., P., at 1129. States 14 N. United 36 Stat.
rejected the factual premises that had supported its judg ment in Joseph,13 and suggested that “the observations there made respecting the Pueblos were evidently based upon statements in the opinion of the territorial court, then under review, which are at variance with other recognized sources of information, now available, and with the long-continued action of the legislative and executive departments.” U. S., at 49. The Court’s disapproval of Joseph strongly implied that the restraints on alienation in contained the Nonintercourse Act —as well as the liquor might statute — apply to Pueblos. As a result, validity all non- Indian claims to Pueblo lands was in placed serious doubt. on
Relying the rule established Joseph, 3,000 non- Indians had acquired putative ownership parcels of real estate located inside the boundaries of the Pueblo land grants.14 The Court’s decision Sandoval cast a over pall all these titles by suggesting the Pueblos had been wrongfully dispossessed of their lands, and that they might have the power eject the non-Indian settlers.15 After 13“[B]y an uniform course of action beginning early as 1854 and contin up ued present time, legislative and executive branches of the regarded Government have treated Pueblos New Mexico as dependent communities entitled to protection, its aid and like other Indian tribes, and, considering their lineage, isolated and life, communal primitive customs civilization, and limited this assertion of guardianship over them cannot be arbitrary said to be regarded but must be as both and controlling.” authorized S., 231 U. at 47. 14 “Thesehearings disclosed that there are approximately 3,000 now claimants to lands within the exterior boundaries grants. The non-Indian claimants with their comprise families 12,000 about per sons. With exceptions, few the non-Indian range claims from a town lot of 25 feet front to a few acres extent. stated, It was however, in the hear ings by parties all that probably percent of the claims are not resisted only pf Indians and percent about the number will be contested.” Rep. S. No. at 5. 15“The fact that the may... United States time in the future take steps persons possession oust of lands within grants, these Pueblo continuing uncertainty title, as to has cast a cloud on all lands held on the problem,16 hearings extensive conducting Lands Act the Pueblo and enacted drafted the complicated to “settle Act stated purpose all of the lands Indians for the to secure of title questions 68th No. Rep. S. entitled.” are they equitably to which Sess., 1st Cong.,
II Board, composed Public Lands Act, Under *7 a third General, Attorney the Interior, States, the United President of the by be appointed to person to the Pueblo claims conflicting to determine was established to issue instructed Board was 636. The Stat. lands. of of the lands bounds forth the metes setting a report the under extinguished not to be found that were each Pueblo Ibid. Continuous, open, in Act. the rules established claimants, cou- non-Indian by adverse possession notorious of en- to the date from 1889 of taxes the payment with pled under if 1924 possession 1902 to from in or actment §4.17 title. a Pueblo’s extinguish to sufficed title, color of the lands mortgage The value . . . areas. people within the Pueblo white have been discontin- sales, leases, and transfers nothing; [and] almost is the 4223 before Subcommittee and S. Hearings S. 3865 . on ued . . Com- of the Senate Indian Lands to the Considering Bills Relative (1923) (Sen- Sess., Cong., Surveys, 4th 67th Lands and mittee on Public Twitchell, E. testimony of R. Hearings) (report submitted ate General). Attorney to the Special Assistant House H. R. 13674 before 16 Ibid.; H. R. 13452 and Hearings on Affairs, Cong., 4th 67th Sess. on Indian Committee Non- whether question purport to resolve itself did not Act Pueblos; provided §4 statutes applied to the Act intercourse any legal equitable or “in other were addition in that section limitations have under laws may had claimants] [the defenses which In November Mexico.” 43 Stat. 637. Territory and State New Pueblos arguing appeal this Court an docketed the Government judgments States, adverse and that the United always wards of had been by the Pueblo brought quiet title actions 1910 and 1916 entered in by brought the United States action quiet title not bar a later Laguna could reports The Board’s implemented by towere be quiet suits to title the United States District Court for the District of §§ New Mexico. 3.
The Act also directed the Board to award the Pueblos com- pensation any rights for the value of extinguished that were they if any “could have been at time recovered for said Indi- by ans the United prosecution.” States §6. seasonable occupied Settlers who had good their lands faith, but rejected, might whose claims were compensation receive any improvements value they had erected on their lands, or for the full they value of purchased their if had those lands and entered them before 1912 pur- under a deed porting convey §§ title.
After the Board determined parcel who owned each ofland, the Act foresaw that some consolidation of each Pueblo’s holdings might land occur. The Board was directed to iden- tify any parcels adjacent to a Pueblo settlement that should purchased from non-Indian owners for transfer to the §8. §16 Pueblo. In addition, of the Act authorized the Secretary of the Interior, with consent of the Pueblo, sell lands owned the Pueblo that *8 among were “situate adjudicated or otherwise determined in favor of non- on the Pueblo’s behalf concerning the parcel same of real estate. The Gov- ernment filed a expedite motion to case, consideration of the informing the Court of the enactment of the Pueblo Act, Lands noting that “[t]he Chairman [of the Pueblo Lands Board] has informed the Attorney General early that an determination of this will helpful ease be to the Board in the discharge of its duties and functions under this Act.” Motion to Advance States, of United O. T. p. No. In holding quiet that the title action barred, was not the expressly Court observed that the Pueblos were “Indian tribes” within the meaning of the Nonintercourse Act. United Candelaria, States 271 U. S. 441-442 practical The result was that non-Indian claimants Pueblo only lands could raise the defenses set Candelaria, §4. out in Unlike present the controversy involves a transaction that occurred after passage the of the Pueblo Lands Act and which is governed therefore by § 17. body apart the Indian the main of from claimants Indian land.”18 provisions Act were all foregoing Pueblo of the Lands
The past consequences In of transactions. designed the to settle in 17— must construe this we the contrast, section case— entirely in Pueblo lands that with transactions concerned was might provides: It the future. in
occur the right, in or to lands of interest the title, or “No title has to which their of New Mexico Indians Pueblo extinguished shall determined as hereinbefore not been by acquired the of virtue of laws or initiated be hereafter except any in other manner Mexico, of New or the State Congress, by provided may sale, and no be hereafter conveyance any of or other grant, character, of lease by any pueblo any made thereto, title or claim or lands, living community, any in commu- Indian or as a nity Mexico, New shall in Indians, State equity validity the same be any unless or law be Secretary approved of the Interior.” first added). (emphasis Stat. provides: complete of 16 text against any lands board or said adjudged the court “That if land determined adjudicated or otherwise among lands
claimant be situate body main of the Indian apart from the favor of claimants non-Indian the best interest it to be for land, the Interior deems and the claim- against the non-Indian parcels adjudged so the Indians such governing sold, may, authorities he consent ant be make, may regulations as thereof, such he under pueblo, order sale than the cash; buyer thereof other and if the highest bidder losing paying to such price be used claimant, purchase shall losing aforesaid, if found improvements adjudicated value of the claimant thereof, hereof, if and the balance provisions of section under the officer, officers, proper paid over to any, shall be *9 claimant, and the value of his buyer losing community, but if aforesaid, shall be enti- adjudicated buyer such as improvements been has improvements so value of such upon his bid for the tled to have credit adjudicated.” question decided here is whether the second
The to be language following the word clause—the “and”—indicates may convey good that a Pueblo title to its lands with approval Secretary Interior. of the
HHJ-HI—I allegedly acquired predecessor In 1905 Mountain States’ telephone right-of-way across land a a line and constructed Presumably App. Ana. 8. owned the Pueblo Santa conveyance under the Non- the 1905 would have been invalid swpra. events, n. In all intercourse Act. See acting guardian for the Pueblo Santa States, the United brought in the District Court an action United States Ana, quiet title to the lands of the District of New Mexico Pueblo. litigation pending, the Pueblo entered into a was While granting agreement right-of-way Mountain it an States operate telephone maintain and construct, easement “to App. dispute. telegraph pole line” on the land now Secretary agreement was forwarded to the 39.19 The the recommen- the Bureau of Indian Affairs with Interior approved Id., under 17. at 181-183. This that it be dation approval agreement approved, received, and the was agreement. right-of-way Id., and endorsed on id., at the District Court motion,20 the On Government’s quiet title Mountain from the thereafter dismissed States pole cents a paid for the easement was or 80 $101.60 The consideration poles. App. 181. for 127 part: motion read Government’s States] has ob [Mountain the institution of this suit
“[Subsequent April 13,1928, by the approved Ana a deed from the Pueblo Santa tained 17 of the Pueblo Lands in accordance with Section of the Interior obtained, for 7, 1924, thereby States] . . . has [Mountain Act of June right way in consideration, good title to the adequate and sufficient an Id,., controversy Pueblo] [Mountain States].” [the herein between at 36. *10 good ground sufficient that it had “secured
action on the controversy way premises right in ... in title to the provisions the Pueblo of Section 17 of accordance with Lands Act.”21 telephone in 1980. removed the line On
Mountain States year, brought this action claim- October 10 of that damages period prior ing trespass removal of for the to the summary granted partial judg- the line. The District Court holding liability, that the ment for the Pueblo on the issue of §by grant right-of-way in 1928 not authorized of the Id., at 86-92. Appeals interlocutory appeal an Court allowed 1292(b) § 734 F. 2d. 1402
under 28 U. S. C. and affirmed. (CA10 1984). pro- The court Pueblo lands were held that prior tected the Nonintercourse Act and that 17 any conveyance of the Lands Act did not authorize lands. It reasoned: such
“The two clauses of 17 of the Pueblo Lands Act are joined by conjunctive ‘and.’ To us that means ex- actly says. what it No alienation of the Pueblo lands ‘except may provided by shall be made hereafter be Congress’ conveyance and no such ‘shallbe of valid- ity equity approved law or unless same be first Secretary things of the Interior.’ Two are re- conveyed quired. must First, a manner provided by Congress. In- Second, the of the approve. first, terior must As to at the time of agreement [Mountain States], between the Pueblo and Congress provided nothing. Hence, had the first condi- provided tion was not met. The fact that had 21Id,., argued pre has the 1928 at 37. Mountain States dismissal challenging validity right-of-way cludes the Pueblo from of the 1928 agreement. Appeals Brief for Petitioner 39-47. The Court of held that ruling not a quiet the dismissal of the title action 1928 was on the merits (CA10 1984). In that would bar this action. 734 F. 2d case, however, disposition of our we do not evaluate the merits view of this contention. approval Secretary meaning-
no method makes the operation depends less. The of the second clause on compliance Id., with the first clause.” at 1406. *11 Appeals rejected
The Court of considered and Mountain legislative history States’ reliance on the of the 1924Act and by Secretary its construction the of the Interior. Appeals’ interpretation
Our concern that the Court of might significant the Act have a effect on other titles ac- § quired pursuant grant to 17 led us to certiorari. 469 U. S. (1984). 879 We now reverse.
HH < § supports The word “hereafter” in the first clause of 17 the Appeals’ interpretation literally, Court of of the Act. Read unequivocally the statute seems to state that no interest acquired “except may Pueblo lands can be as hereafter be provided by Congress” differently, stated or, somewhat — Congress yet concerning until enacts another statute lands of the Pueblo Indians of New Mexico. problem
The with this construction of the statute is that requirement Secretary’s approval in the second § nullity Congress clause of 17would be a until acts. if Even Congress authorizing a later did enact another statute Congress entirely alienation of lands, that would be accept reject requirement. free Neither the Appeals any plausible Pueblo nor the Court of has offered attributing design Congress. reason for this futile to the 68th light elementary In of “the canon of construction that a stat- interpreted part inop- ute should be so as not to render one (1979), erative,” Franklin, Colautti v. 379, U. S. § limiting power second clause of 17 cannot be read as Congress legislate in the “hereafter.”22
22Congress pass did Acts in 44 Stat. 498 and 45 Stat. authorizing rights-of-way lands, the condemnation of over Pueblo but these response Acts were voluntary enacted to Pueblos that refused to make conveyances of easements to utilities and common H. R. carriers. See Rep. Sess., Cong., Thus, No. 69th 1st the 1926 and 1928 interpretation Appeals’ of the first literal The Court § nullify § n. 18, effect of 17 would also clause of design indicates that Lands Act supra. of the Pueblo holdings thought land Congress of Pueblo consolidation some settlement might the claims in connection with be desirable implemented promptly the Pueblo Lands program to be § purports supra, end, To this at 245-246. Board. See conveyances lands with the consent of Pueblo to authorize approval of governing and the of the Pueblo authorities Appeals’ If literal the Court of of the Interior. prop § accepted, the consolidation 17 were construction only implemented have been could erties foreseen provide. might Congress It is inconceivable thereafter comprehensive have inserted would expect provided it in the Act if it did not scheme settlement effective forthwith. to be *12 Appeals’
Finally, practical inter- of the Court of effect requirements apply pretation of the Nonintercourse is to voluntary In Con- of Pueblo lands. transfers Act to gress logically any approaches adopted of three
could have voluntary to be have left the matter It could transfers. applied Nonintercourse the rule of the courts; decided adopted A review of the structure rule of law. or a new Act; Congress the last followed convinces us of the statute course. provisions § simply arguing extended the
In that 17 relies on lan- Pueblos, the Pueblo Act to the Nonintercourse guage However, it is the of the section. in the first clause closely resembles of 17 that the first—clause second—not language Act: of the Nonintercourse and structure 17: Section convey- any grant,
“[N]o or other character, lease of sale, by any any thereto, claim made title or or lands, ance of authority provided in the second supplement designed to Acts were 17, it. replace clause of
pueblo community, any as a or living Pueblo Indian in a community of Pueblo Indians, in the State of New Mex- any validity ico, shall be of equity or in law unless the approved by same be first Secretary of the Interior.” Nonintercourse Act:
“[N]o purchase, grant, conveyance lease, or other any lands, or of title or claim any thereto, from nation or tribe of any Indians, shall validity in law equity, unless the treaty same be made or conven- pursuant tion entered into to the Constitution.” language slightly is significantly pro- —but —altered approval by vide for of the Interior instead of by Congress. ratification
In Congress if case, apply had intended to the Nonin- tercourse Act to these it is why lands, difficult to understand say simple it did not language. so in When consid- appropriate ered it in the generally Act to applicable extend Indian statutes to the it Pueblos did language so with concise directed to that end.23 subsequent Indeed, in view of events, Congress might have simply by achieved that omitting result §17 from leaving the Act and the matter to the courts. See supra. n. In view, our it likely is much more that Con- gress procedure intended to authorize a different for Pueblo lands in unique view of history their history that is dis- —a length cussed at some Reports.24 the Committee 23For § 4 example, recognized Act that a might bring its own action to quiet “Provided, however, title That any contract entered *13 any into with attorney attorneys by or the Pueblo Indians of Mexico, New carry to on litigation such subject shall be to and in accordance with exist ing laws of the United States.” 637; 43 Stat. Rep. S. No. at 7. Wilson, 24 Francis representative for the Pueblos, apparently origi nated the first § draft of In a letter to the Commissioner of Indian Af explained he fairs that 17 of is, “Section the Bill we think the way shortest prevent to present conditions from recurring or existing again. . . . This section is intended to cover the ground same [the as Nonintercourse Act] but it changed is so as to accord with the conditions of the Pueblo Indians.” App. to Brief in Opposition 12.
V harmo- reading better the statute that of There is another § the entire of the structure 17 with of two clauses nizes the legal After the contemporary context.”25 “its Act with questions of generally assumed that Joseph it was decision, by to reference answered to be were Pueblo lands title to In Con- law. to federal than law, rather New Mexico holding a clear of legislating the benefit gress without was completely assimi- had been Pueblos that from this Court pro- were titles whose land Indian tribes of the status lated to In- by had established Sandoval law. federal tected strongly implied applied had liquor Tribe, to the law dian Congress apply; but also Act would that the Nonintercourse future, law, state surely clear that to make wanted Congress had entirely pre-empted and that area, in this was The first jurisdiction complete these over lands. assumed against prohibition fairly §17 a flat read as is of clause future trans- connection Mexico law New reliance on of involving After alienation lands. actions only involuntary, if occur voluntary lands, those by law. federal sanctioned acqui- generally § to the 17 refers first clause
While the “right, in . . . lands or interest title, sition grant, any “sale, refers second clause Indians,” language conveyance This lands.” ... or other lease freely a Pueblo. plainly land made transfers of refers providing interpreted logically of 17is clause The second that no future law, federal matter of as a command, a firm approval Sec- conveyance valid without should suggests language retary of the Interior. adequately Interior could that the
assumed protect with future connection of the Pueblos interests supported lan- is This construction transactions. land guage allowing of Pueblo for the consolidation University 677, 699 Cannon 441 U. S. Chicago, *14 with the consent of the Pueblo and if “the Secretary Interior deems it to be for the best interest of the Indians.”26
This interpretation §17 gives both clauses a meaning that is consistent with the remainder of the statute the historical situation of the Pueblos.27 It is consistent with the limited legislative history available,28 and is supported by 26The argues specific authority §by conferred 16 would superfluous § interpreted if 17 is as generally authorizing conveyances approval with the of the Secretary. § Provisions similar to however, were early contained in versions of the bill that § did not contain see Rep. S. No. 67th Cong., Sess., 4th (1923); H. Rep. R. No. Cong., Sess., 3, 67th 4th (1923), and it probably considered to be an comprehensive isolated element in the procedure claims settlement estab Act, provision lished rather than a general applicability § like 17. Section 16 was also no designed doubt to encourage Secretary to take the initiative in urging the Pueblos to consolidate their land holdings after the Board’s completed. work was 27The word “hereafter” in the first clause of 17 puzzle remains a even under interpretation. this may It be that inadvertently used the word “hereafter” when it say intended to “herein” or “hereinafter”; per haps when the word bill, “hereafter” was included in the subsequent might date enactment regarded have been part of the “hereafter.” any case, In ambiguity this in the first clause of 17 does not alter clarity of the rule of law established the second. 28 During the Hearings Senate the Chairman of the Subcommittee consid ering the bills on the problem Pueblo lands referred to the desirability of authorizing the convey Pueblos to their lands approval with the Secretary: “Senator Lenroot. general we not legislation Have provides the alienation of Indian lands with the consent of Interior? “Commissioner Certainly, Indians, as to all Burke. except the Pueblos. They
“Senator Lenroot. are not included the statute? “Commissioner Burke. No; and no tribal lands can except be alienated Congress. act of This land is not allotted. “Mr. Wilson [representing special Pueblos]. There is legislation cover- ing Tribes], [the Five Civilized and in the court, Sandoval case the speaking of the tenure to lands of tenants, compared them di- rectly with the tenure of the Five Tribes. patented land, Civilized That is but there was a parallel drawn court, mind of the which intended to *15 Secretary opinion contemporaneous of the Interior of the the placed stamp ap Judge a who Federal District and the years proval numerous others the and this transaction on following Act in 1924.29 of the Pueblo Lands the enactment contemporaneous view of the Executive Officer uniform The administering responsible the and the District statute quiet jurisdiction the title actions over exclusive Court with very to brought Act30“is entitled Pueblo Lands the under likely far more great respect.”31 individuals were These precisely lands could be handled convey the idea Tribes. Five Civilized way the land same you might it have whether I should like to consider “Senator Lenroot. with may sold or alienated provide that these advisable [be] Secretary the Interior. and the the Pueblo of both the consent quite desirable under some probably going to be That is “Mr. Wilson. encouraged the idea at different times rather In fact we have conditions. they get their lands into swaps transfers could make and they if could policy at one time that we had In fact that was the condition. much better it. reference to Commissioner, any objection to there be Mr would “Senator Lenroot. part of the Government. that on the think there should be I do not think so. I “Commissioner Burke. Indians, they might interest of it authority that where was so Department.” supervision of the under strict convey, I would it but Hearings, at 155. Senate ap- authorizing conveyances of lands with the Sections 16 Interior, appeared in later versions of the Secretary of
proval of the 24, supra. n. bill. See also Attorney offered same 1926, Special Assistant to General In adopt today. App. of 17 that we See of the second clause construction construction, a result of this 3a-4a. As Brief for Petitioner Ana, involving conveyances the Pueblo of Santa approved at least 8 other 112-115,129-180, involving more than 50 1958, App. 1926and between dismissals Many early transactions involved also other Pueblos. under the Pueblo brought the United States quiet title actions from 23; supra, as Amicus Curiae Brief for United States Act. See Lands at 247-248. 30 1, 3, §§ 43 Stat. Zenith (1827). Darby, Wheat. also Lessee v. Edwards’ (1978); Norwegian States, Corp. v. 437 U. S. Radio United States, U. Nitrogen Products Co. United S. understanding
have had an of the actual intent of judges legal implications than who must consider the century transaction over half a after it occurred. judgment Appeals of the Court of is reversed.
It is so ordered. part took no the decision of this case. Justice Powell Justice Brennan, with whom Justice Marshall Justice Blackmun join, dissenting.
Section 17 of the Pueblo Lands Act of 1924, Stat. provides in 641-642, full: right,
“No title, or interest in or to the lands of the Pueblo Indians of New Mexico to which their title has extinguished not been as hereinbefore determined shall acquired by hereafter be or initiated virtue of the laws of any except the of State New Mexico, or other manner may provided by Congress, as hereafter be and no sale, grant, any conveyance lease of or character, other any by any pueblo lands, or title or claim thereto, made community, any living as a or Indian a commu- nity Indians, the State of New shall Mexico, any validity equity be of in law or in unless the same be approved by Secretary first the of the Interior.” provision striking This awkward and obscure is a illustration statutory phraseology of the fact that sometimes is “the con- sequence legislative perhaps by nothing of a accident, caused Congress busy more than the unfortunate fact that is too to carefully all do of its work as as it should.” Delaware Tribal (1977) (Ste- Business Committee Weeks, U. S. added). dissenting) (emphasis opaque vens, J., language Section 17’s given just conflicting interpre- has rise to not two literally proffered readings— tations, but to a multitude of attempts ambiguous each of which to rationalize the words, phrases, explain away apparently and clauses and to incon- ultimately language, each of which inoperative sistent mud- This language whole.1 into a coherent the meld fails to fluctuating by construction perhaps illustrated best dle is past Department over the Interior by § given to the Court offers And while years. at 270-275. infra, § “harmoniz[e]” attempt the anomalies to up its own aspects of ultimately some that must concede it at ante, interpretation,” ante, [its] puzzle § “remaifn] even under n. 27. attempting to thought Court, in that the have I would naturally statutory bog, canons would turn this drain questions for governed Indian-law construction designed specifically re- past centuries —canons two construing provisions 17, and such ambiguities in solve responsibilities directly trust grow the federal out of which Congress, officials, and executive conduct that define Instead, respect tribes.2 the courts boldly pronounces its wholly ignores canons these Court goes far interpretation statute revisionist own beyond reading. Under current the Government’s even give 19Pueblo 17to intended view, Court’s tribe —the power possessed other Indian no Tribes a power freely without tribal unalloted to alienate their approval only subject to the restrictions, *17 respecting any guidelines without and Interior, of the 12-32; Brief 16-32; Respondent Brief for g., Brief for Petitioner e. See, Atchison, Topeka and 11-16; Brief for Curiae as Amicus for United States Co. 9-16; Brief Public Service Curiae Railway Co. as Amicus Fe Santa Mexico as of New 11-18; Brief for State Amicus Curiae Mexico as of New 5-21; Brief as Amicus Curiae of Taos 3-7; Brief for Pueblo Amicus Curiae All Indian Pueblo 11-13; Brief for Curiae Acoma as Amicus for Pueblo de Amici Curiae 7-20. et as Council al. Tulee (1983); 206, Mitchell, 463 U. S. See, e. States v. g., United Georgia, Nation v. Cherokee (1942); 684-685 Washington, 315 U. S. Indian Cohen, of Federal (1831). Handbook F. generally See 5 Pet. (1982) (Cohen). 220-228 Law scope, timing Secretary’s requirements, or
manner, supervision. § plausibly simply
I I dissent. believe 17 more is read attempt by clarify ap- an to reaffirm full and plicability general to the Pueblo Tribes federal restraints against exceptions alienation of Indian lands and the thereto. interpretation This better reflects the structure of the Pueblo spirit in Lands Act and the which it was enacted. The interpretation, in hand, Court’s on the other flies the face of legislation prior Lands Act and of both enacted legislative history; and after the misconstrues the over- Act; concerning origins consistency looks evidence interpretation pur- administrative to which the Court now ports fiduciary relationship defer; and flouts the owed to Indian tribes and canons of construction that serve to relationship. preserve that
I § acknowledges, light As in the Court must be examined “ ” contemporary legal of ‘its context.’ at 252. Alien Ante, governed by ation of Indian in 1924 as lands, now, was provides principles of the Nonintercourse which Act, purchase, grant, conveyance “[n]o lease, lands, or other any any title or claim from Indian nation or tribe thereto, validity equity, Indians, shall be of law or unless by treaty pursuant same be made or convention entered into entering Congress ceased into trea to the Constitution.”3 Act 1871,4 ties with Indian tribes but the Nonintercourse characteristics of Indian has continued to define essential country: concerning questions that all title property this pre-empted by that interests law, are federal 1834, 12, § § C. Trade Intercourse Act of Rev. 25 U. S. Stat. §177. 3, 1871, 1, §2079, C. 4 Appropriations Act of Mar. Rev. 25 U. S. Stat. Nation, also FPC v. Tuscarora Indian 362 U. S.
258 congressional explicit conveyed only pursuant to can lands be
Indian ization.5 author permitted in unallotted interests has 1871, Since spe- through ways: conveyed first, in two be Indian particular authorizing lands; tribal of alienation statutes cific authorizing through general the transfer statutes second, and approval subject of to the in Indian lands limited of interests Secretary A of this number statutes Interior.6 century 19th category end of the enacted at second were century, such limited early and authorized in the 20th and conveyances gas, grazing, farming, and oil, and for as leases railways, highways, rights-of-way development; for mineral typically These timber.7 statutes sales of and utilities; and authority by, Secretary’s inter placed on the strict limits years price for which inter- prescribing and term alia, special conveyed, providing for the collection ests could plac- royalties tribes, for the benefit affected taxes and conveyances, scope geographic ing on restrictions safeguards establishing procedural owners, the tribal and regulations promulgation which and requiring of rules authority. exercise his would 5 Oneida, County York v. Nation New g., e. Oneida See, Hualpai rel. Indians States ex United (1974); 661, 414 U. S. generally Co., 339, Cohen Fe R. U. S. 347 314 Santa Pacific 510-522. id., (summarizing legislation). id., 48-51; at 517 516, nn. and 6 See 7 §397 795, 28, 1891, §3, 26 25 U. S. C. g., Act of Feb. Stat. e. See, 305, 15, 1894, 1,§ 28 25 leases); Aug. Act of Stat. mining (grazing and 990, 2, 1899, 1,§ 30 as leases); Mar. Stat. (farming § Act of U. C. S. telegraph rights-of- (railroad, telephone, § amended, 25 U. S. C. (telephone § 1083, 3, 1901, 3,§ 25 U. S. C. 31 Stat. way); Act of Mar. 65, 1, 2, 11, 1904, §§ 33 Stat. as rights-of-way); Act of Mar. telegraph 3,1909, 35 Stat. Act of Mar. as amended, (pipelines); § 321 25 U. S. C. 25, 1910, 7,§ 36 Stat. (reservoirs); Act of June amended, § 25 U. S. C. (timber 30, 1919, sales); Act of June amended, 25 U. S. C. as (oil leases); Act amended, gas § 399 25 U. S. C. 26,§ Stat. leases). (mining 29, 1924, 25 U. S. C. May 43 Stat.
259
Congress had extended the Nonintercourse Act to the Ter
ritory
shortly
of New Mexico in 1851,8but from
after the
Civil
War until
1910,
territorial courts, sustained
this
application
Court, barred
of the Act to the Pueblos on the
grounds
they
really
g.,
were not
“Indians.”
e.
See,
Joseph,
(1877);
United States v.
In order to reassert its over the Pueblos, Con gress Enabling in the pro New Mexico Act of June 20, 1910, vided as a condition for statehood that “all lands ... owned or by any held Indian or Indian tribes . . . shall be and remain subject jurisdiction to the . . . absolute and control of the Congress of the United States,” and that “the terms ‘Indian’ country’ and ‘Indian shall include the Pueblo Indians of New occupied by Mexico and the lands now owned or them.”10 27, 1851, 7,§ Act of Feb. 9 Stat. 587: “[A]ll the laws regu now force lating trade and tribes, intercourse with the provisions or such may applicable, be, same as shall hereby, and the same are extended over the Indian tribes in the Territories of New Mexico and Utah.” 9See, g., e. Chavez, United States v. 357, (1933); 290 U. S. 360-365 Fall, Santa Rosa v. United States (1927); U. S. 320-321 Candelaria, 271 U. S. 20, 1910, §2, 10 Actof June Const., Stat. 560. See also N. M. XXI, 1911) (“The § (adopted Art. Jan. people inhabiting this state do agree they and declare that forever right disclaim all and title ... to all lying within said by any boundaries owned or held Indian or Indian tribes, right or title to which shall acquired through have been Sandoval, decision and the Act Court’s Enabling After the leasing supervise began the Interior Department statutes summa to the pursuant of rights-of-way grants subjected conveyances were such Numerous rized above. the enactment 1910 and
its between supervision its consideration 1924,11 during Lands Act *20 right-of-way the and leasing informed that Act was Congress “to the same to the Pueblos being applied were statutes Indian tribes.12 as other extent” a Act set forth Lands of the Pueblo 16 sections
The first of dis the thousands for resolving mechanism comprehensive Pueblos’ uncertain the resulted from claims that land puted to Joseph prior decision after the Court’s status of such until the title sovereignty; and that States, any prior or United extinguished the same shall be shall have been or Indian tribes Indian jurisdiction and the absolute disposition under subject to the remain States”). congress of the United of the control Study Legislative A Lands Act: 17 of the Pueblo Kelly, 11 1L. Section 1984) manuscript (unpublished Practice History and Administrative 27-29). (Exs. n. See id., 128-136 (Kelly); infra. of the Senate a Subcommittee and S. before Hearings on S. 3865 Sess., Cong., 72-73 Surveys, 67th 4th Lands and on Public Committee (1923 (1923) Hearings): Senate attempted exercised or department ever Has the Lenroot. “Senator these Indians? property by over the alienation control to exercise act, enabling yes; and since Since “Colonel Twitchell. by these that have been made The leases particular. case Sandoval it, time, required as I understand made since that which been Indians superintendent. the consent of department [M]y point was whether . . . Lenroot. “Senator rights, and alien- protecting their with reference
making any disclaimer to things of that sort? property, or ation Chairman, going all, we are Not at Mr. “Commissioner Burke. extent.
same supposed I so.” Lenroot.
“Senator the House Com- R. 13674before H. R. 13452and H. Hearings also on See Sess., Affairs, Cong., 67th 4th on mittee Enabling enactment of the Act and the decision Sandoval. § I ante, at 244-246. believe that 17—described its way prevent existing author as “the shortest conditions recurring existing again”13 from simply best read as —is declaratory applicability reaffirmation of the full to the Pueblos Nonintercourse Act as it stood in 1924. Thus, prohibiting acquisition the first clause of of Pueblo 17— “any except title under New Mexicolaw or in other manner” provided by Congress merely to reaffirm the fed —served pre-emption questions concerning eral of all Pueblo lands. prohibiting any The second “convey clause of form of 17— approved by . . Secretary ance . unless the same be first quite similarly merely Interior” —can be read as confirming conveyances interests Pueblo lands approval must have secretarial otherwise —where has approve par created a mechanism conveyances. ticular reading §17 This does, course, render redundant of then-existing repeatedly law. But as the Court has acknowl- *21 edged, Congress’ practice historical in Indian-law enactments frequently general policy has been to include such declara- quo. g., Bryan tions and reaffirmations of the status e. See, County, (1976); v. Itasca 426 373, U. S. 391-392 Johnson and Graham’s Lessee v. 8 McIntosh, 543, Wheat. 604 Apache See also Arizona v. San Carlos 463 Tribe, U. S. 545, (1983)(re Acts). Enabling disclaimer clauses in state Contrary Congress to the Court’s revisionist view, had no questions already doubt whatsoever that of Pueblo title had pre-empted by Enabling been Act,14 and the first clause of 13 (Dec. Letter from Francis Burke, C. Wilson to Charles 18, H. at 1 (Ex. 37). 1923), reprinted Kelly in 2 31, See n. infra. Congress 14 TheCourt that “adop[t] believes intended to a new rule of Ante, “apply law” rather than to the Nonintercourse Act to these lands.” ante, 250, (“The at 244, 251. See also at n. 17 Act itself purport did not question resolve the applied whether the Nonintereourse Act to the Pueb los”). Congress already But had extended the Nonintercourse Act to the § therefore be more than a nothing 17 can reaffirmation of §17 federal second clause of is pre-emption. part as the is linked to first, the same sentence the first by and is the same “and,” phrased conjunctive prohibitory under reason- suggesting similarity purpose any terms — I § canon of construction.15 therefore conclude that 17, able in the the En- Act, context the Nonintercourse placed Act, right-of-way various statutes abling leasing if viewed effect, simply then is most comprehensible the status those statutes and reaffirming by quo represented the Sandoval decision. As set forth this below, unambitious construction best accords with the structure of the Pueblo Lands Act and subsequent congressional legislation, and with the legislative history, principles always inus to Indian construing legislation pertaining have guided tribes.16 8, supra, Act, Enabling see n. and in the 1910
Pueblos both the swpra. Act, During legislative hearings leading see n. to the already agreed pre-empted Act it was had this Pueblo Lands g., e. See, Hearings, Rep. at 155. also matter. Senate S. (1924) Cong., Sess., (question “finally had been No. 68th 1st deter- 1913). today, consistently Sandoval mined” Until Court has acknowledged this effect of the 1851 and 1910 Acts. See cases cited in 9, supra. n. (4th Sands, Statutory See 2A C. on Construction 47.16 Sutherland ed. 1984). infra, See also at and n. 65. every 17,§ reading As with other some anomalies remain under this interpretation. agree I with the Court that the second “hereafter” in the operative signifi clause of 17 could not have intended to have first been Ante, Moreover, any “conveyance cance. n. 27. the reference to living community . . . made . . . Pueblo Indian in a of Pueblo Indi possibly ans” could meant to have been immediate literal effect. *22 simple Pueblo lands were unallotted and therefore held fee communal title, power so an individual Pueblo Indian could not have had the to con vey Perhaps Congress by language encompass land. intended this the might in possibility that Pueblo lands the future be allotted to individual policy The federal allotment came to an end with the enact members. Reorganization amended, ment of the Indian Act of 48 Stat. as seq. 461 et § generally Cohen 147-149. U. S. C.
l-H b—I concludes, however, Court intended the second clause of 17 to reject of the Noninter- application course Act “to these lands” and instead to “a new rule adopt of law” a Pueblo to title authorizing “convey to its lands good Ante, with the approval of the Interior.” Secretary at 251, 250, 247. Statutory Structure
A. The Court believes this interpretation “better harmonizes the two clauses of 17 with the structure of the entire Act.” Ante, The Court’s interpretation, however, would render § 16 wholly superfluous of the Act, which gave explicit authorization congressional to conveyances of Pueblo lands in one extremely narrow set of circumstances. Specifically, § 16 authorized the sale of land found Pueblo Lands Board (1) to belong to a rightfully the land “be if situate among lands adjudicated or otherwise determined favor of non-Indian claimants and apart from the main body (2) of the Indian land”; the Pueblo and the con- Secretary (3) curred in sale; the land went to “the bid- highest der for cash.”17 The purpose of this provision “get 641, provided Section 43 Stat. in full: if adjudged by
“That land the court or against any said lands board claimant among adjudicated be situate or otherwise determined favor of non-Indian apart body claimants and from the main of the Indian land, and the of the Interior deems it to for the be best interest parcels the Indians that such adjudged against so the non-Indian claim- sold, may, ant be he with the governing consent of the authorities of the pueblo, thereof, order the regulations may make, sale under such as he highest cash, buyer bidder for and if the thereof be other than the losing claimant, purchase price paying shall be used in losing to such adjudicated claimant improvements value of aforesaid, if found provisions under the hereof, of section 15 thereof, the balance if any, paid shall be over proper officer, officers, to the of the Indian community, buyer but if losing claimant, and the value of his improvements adjudicated has been aforesaid, buyer such shall be enti- tled to upon have credit his bid for the value of such improvements so adjudicated.”
264 to one another.” contiguous Senate holdings (Sen. Mexico). at 154 of New
Hearings, Jones §16 The Court argues vaguely that con- “probably an “isolated element” of that it some- Act, sidered” initiative” how enabled to “take the uniquely in Ante, consolidation “urging” 253, of Pueblo lands. n. This unsupported argument is untenable. As the for the Solicitor Department just Interior emphasized last year, is inconceivable that would have Congress “[i]t authorized the sale of under the narrow very circumstances of and then one 16, Section section later would the Pueblos to alienate their lands for empowered purpose with no standards or conditions other than Sec- retarial an irrational result could not have approval. Such been intended by Congress.”18
The error of the Court’s is further interpretation exposed the fact that, since has en- Congress recurrently acted much narrower legislation affirmatively authorizing of interests in conveyances legislation lands — would have had no if, rational basis as the Court concludes, Congress already had authorized unlimited conveyances Pueblo lands simply upon secretarial For approval. exam- (1) In ple: to concern response the existing easement and statutes might right-of-way not technically be applicable to Pueblo enacted lands, Congress legislation that nine clarifying statutes, of those with “the basic along Acts cited such Congress sections,” were fully “appli- cable to the Pueblo Indians of New Mexico and their lands.”19 Attorney Henry Solicitor Frank K. Richardson to Assistant F. General (Oct. 1984) (Richardson Memorandum). II, p. Habicht 21, 1928, Apr. amended, §322. Act of Al Stat. 25 U. S. C. though Department consistently applied general had easement and right-of-way Pueblos, Special statutes to the a new Assistant to the Attor ney that, peculiar wording General concluded as a result of the 2, 1899, pertaining rights-of-way, “[fit the Act railroad is not of Mar. quite them, though it looks as it certain that it does include but did
These provisions included numerous procedural and financial safeguards governing (2) such conveyances.
1933 extended the narrow provisions §of 16 to authorize the sale by the Pueblos and the any land that had Secretary been taken from a non-Indian claimant the Pueblo Lands Board.20 Congress’ purpose was to remove the “restrictions in the sale of lands”;21 [these] the legislation was to designed authorize in “a alienation limited num- Pueblo lands only ber situations” where to necessary consolidate a tribe’s (3) land base.22 In 1948, Congress authorized the Secretary to grant “for rights-of-way all purposes” across “the lands to the belonging Pueblo Indians New Mexico,” to subject “the consent of the proper tribal officials” of organized (4) tribes.23 In 1949, Congress authorized the Pueblos and the to certain exchange Pueblo lands for those infra, 271, not.” See and n. premise 39. On the that the 1899 Act “probably was sufficiently not broad to cover matter,” the Rep. H. R. 955, No. Cong., Sess., 69th (1926), 1st 2 Congress leg- enacted emergency islation authorizing proceedings condemnation in federal district court against Pueblo lands. The Act was invalidated as a procedural result of defects, see H. Rep. 816, R. No. Cong., Sess., 70th 1st 1 (1928), and Con- gress subsequently enacted the clarify Act to general ease- ment and right-of-way provisions “applicable were to Pueblo Indians of Mexico,” New ibid. May 31, 1933, §7, 20 Actof 48 Stat. 111. Rep. 73, (1933). Cong., 21 S. No. Sess., 73d 1st
22 Id., added). (emphasis at 17 Specifically, these situations were those “wherein non-Indian settlements long standing, recovered for the Pueb los, are not needed may Pueblos but profitably more be sold proceeds reapplied purchase to the improvement of lands nearer to the ancient villages.” Pueblo Ibid. also H. R. Rep. 123, See No. Cong., 73d (1933) Sess., 1st (legislation was designed permit to “the blocking of lands tribes”). belonging to the 23 Act 1, 2, §§ of Feb. 17-18, Stat. §§323, U. S. C. Five of the nineteen Pueblo organized Tribes under Reorganiza the Indian tion Act supra. see n. Rep. H. R. 94-1439, p. Conf. No. (1976). Department has long extended requirement this consent to rights-of-way over all Pueblo §§ lands. 25 CFR 162.2-162.5 of tribal of consolidation” the purpose domain “[f]or the public in 1961 “[f]or was enacted (5) legislation lands.24 Similar and consolidat- pattern the land tenure of improving purpose authorized (6) In 1968, Congress lands.”25 ing lease to Zuni Pueblos Tesuque, Cochiti, Pojoaque, not exceed a term of to “for purposes specified their for could leases which except grazing ninety-nine years,” exception an created This authorization 10 years.26 exceed applicable statutory provisions from for these Tribes re- leasing limit Indian which Tribes, other (7) enacted in 1976 25 years.27 stricted lands right- of the general the full clarify applicability legislation “to place Pueblos;28 to the purpose of-way provisions relative position the same Pueblo Indians Mexico the New feder- *25 lands as other across their of rights-of-way to grants Indian tribes.”29 ally recognized if meaningless have been enactments would of these
Each unlimited duration leases of authorized already § 17 1924, The enactments land. sales of outright and even has that Congress demonstrate clearly 1961 1933, 1947, and necessary where only of Pueblo authorized alienation pat- land tenure improve and to tribal base consolidate the interpreta- that the Court’s effort crafted carefully terns —a 1928, 1948, the enactments Similarly, annuls. today tion that leases intent Congress’ and 1976 demonstrate 1968, the same proce- subject be on Pueblo lands rights-of-way conveyances that such govern safeguards financial dural and is irreconcilable intent generally on Indian lands —an ave- entirely independent an § 17 created the notion that with to standardless only subject title of Pueblo nue for alienation approval. secretarial
24 §622. 605, C. 1949, §2, 25 U. S. Stat. Aug. Act of §624. C. 25 U. S. 87-231, § L. Stat. Pub. §415. amended, C. 25 U. S. 90-570, L. 82 Stat. Pub. 27 Ibid. §322. 1275, 25 U. S. C. 94-416, §3, 90 Stat. Pub. L. 94-1439, at 4. Rep. No. H. R. Conf. Legislative History
B. explains, The Court baffling interpreta- however, that its § tion of 17 is legislative “consistent with the history- limited available.” Ante, at 253. All support the Court can offer in carefully this assertion excerpt is a distilled from a collo- quy between Senator Lenroot and Wilson, Francis an attor- ney during for the Pueblos, hearing. 1923 Senate Ante, at 253-254, n. 28. inquired Senator Lenroot “whether it might [be] provide not advisable to may that these lands be sold or alienated with the consent of both the Pueblo and the Secretary of the replied Interior,” and Wilson that it would “quite desirable under some conditions.” 1923 Senate Hearings, at 155.
Unfortunately, the Court omits some rather crucial lan- guage demonstrating colloquy that the upon entire it relies pertained to 16rather than began to 17. Senator Lenroot by asking: “Might there be cases where it would be to the interest of the Indians to sell?” Id., at 154. re- Wilson sponded that “I can think might of one. There be, but I have not in mind.” Ibid. Senator Jones of New Mex- suggested ico then that “where strips there are allotments, here and there, where the title has been divested from the might Indian, it strips not be advisable as to the where non- interspersed Indians have not the title, strips where non-Indians have the disposition title, that there be some get that land so holdings as to contiguous the Indian to one Everyone present another.” agreed Ibid. “[i]t would *26 very (Wilson). be desirable.” Ibid. participants question turned next to whether the
Secretary conveyances. could authorize such As was “true generally agreed of the Indian law,” it was that the “anything could have to “Congress do with it” because jurisdiction has taken full sale land,” this and would “[absolutely” legislate therefore upon have “to it.” Id., (Sen. at 155 Lenroot, Comm’r Burke, Mr. Renehan, Sen. Jones). only point It was at this que- that Senator Lenroot Congress ried provide whether may should that “these lands 268 agreed would that it Wilson alienated,” and
be sold Ibid. Wilson conditions.” “quite under some desirable were—where “some conditions” identified what then get they [so] swaps could transfers make “could Pueblos Ibid. condition.” much better lands into their history, legislative 253, therefore ante, at This “limited” (1) participants that Con- understood all that demonstrates give approval to alienation gress its would (2) only so where to do intended lands, Pueblo necessary contiguous holdings to one get the Indian “to narrowly drafted precise function of another” —the hammering Congress, suggested after that was it Nowhere of some Pueblo for alienation authorization out this limited of all Pueblo alienation then intend authorize would lands, lands.30 attorney an Wilson, Francis drafted 17
Section legislative proceedings,31and representing Pueblos provision suggested In- drafted has not how the Court simply urging the Pueblos be who were dian advocates possibly intended have been could like other tribes treated against in the set forth alienation restraints to override to the comparison of the Pueblos that a apparently believes The Court supports its during colloquy discussed above “Five Civilized Tribes” outright alienation of authorize Congress intended to conclusion ante, 253-254, at approval. See subject only to secretarial allotted Tribes, most of which were the Five lands of n. 28. But tribal specified periods century, inalienable for were made the turn of the around on of tribal extended allotments time, that have been restrictions congressional subject to detailed Indian blood half or more members of generally Cohen 785-788. See relaxing the restrictions. standards manage parallel is no between Contrary implication, there to the Court’s property management of property the Five Tribes’ ment of interpretation of 17. under the Court’s (Nov. 5, Walker, at 3 g., to Roberts e. See, from Francis Wilson Letter (Ex. Francis Wilson Kelly 1); from C. 1923), Letter reprinted in (Ex. 2). (Nov. Kelly 26, 1923), reprinted in 2 Burke, H. Charles Kelly generally 10-11.
Nonintercourse claratory simply Act. That 17 was intended aas de- scope reaffirmation full of the Nonintercourse by Act is best provoked illustrated fact that it no debate, commentary, opposition. The much more modest 16, on engendered the other sharp hand, controversy.32 As one historian reviewing concluded after legislative all available history, departmental private records, and correspondence, there is
“nothing in the record
anyone
to indicate that Wilson or
else
interpreted
intended or
authorizing
Section 17 as
convey
the Pueblos to
any greater
their lands to
extent
than other Indians,
modifying
or otherwise
the Non-
any
Intercourse
way.
Act
substantive
Such a con-
if
struction,
circulated at that time,
certainly
would
provoked heated
opposition
debate and
from the Collier
group
especially
and others,33
since sales
individuals
part
tribal officials had in
caused the turmoil that
led to the Act. What is remarkable about Section 17 is
easily accepted,
that it was so
apparently
consensus.
among
alone
lengthy provisions
Almost
vari-
undisputed
ous bills, it was
and unamended.”34
After a similar review, the
Department
Solicitor for only
“[njowhere
year
Interior found
last
legis
in history
lative
suggestion
is there
that Section 17 was
32See,
g.,
e.
1923 Senate Hearings,
105-106,
154-155.
33The reference
Collier,
is to John
who became Commissioner of Indian
Affairs in 1933.
organizations
Collier and
represented
that he
were
opposed to further alienation of the Indian
base,
they
tribal
played
an
active role in the enactment of the Pueblo Lands Act.
intended nothing has offered The Court lands.”35 alienate Pueblo to contrary. suggesting the plausibly Construction Administrative
C. contempo the “uniform explains, that however, The Court “‘very great officials commands executive of view” raneous appropriate an if this were 254. Even respect.’” at Ante, the construction,36 administrative a consistent defer to case to Department con history the Interior’s of the checkered purported that Court’s the 17 demonstrates struction pre recognized wholly have “We unwarranted. is deference interpretation weight viously an administrative that consistency upon things, among ‘its depend, other will agency.” Morton v. pronouncements’ anof later and earlier (1974),quoting v. & Skidmore 199, S. 415 U. Ruiz, Swift (1944). Democratic v. also FEC See S. 323 U. Co., (1981); 38-39 Campaign 454 U. S. Committee, Senatorial Inc., Dealers, Assn. Securities v. National States United demonstrates record 718-719 U. S. swung wildly §17 has Department’s construction years. past 60 forth over and back years Act was Lands the Pueblo after first two
For general right- applied Secretary routinely enacted, prior to the Act.37 he had of-way as Pueblo, to the statutes granted pursuant rights-of-way Among numerous 50-year to the provisions easements were restrictive these Comp Telegraph Telephone petitioner States Mountain Memorandum, at Richardson (1) “plain and unam requiring of construction light of the canons In alienation, lift restraints on intent to congressional expression of biguous” (2) resolved legislation be ambiguities 275-279, that all infra, at see 66, infra, not an title, n. is this see rights preserving in favor deference administrative invoking usual rules of appropriate case (1974); Ruiz, 415 U. S. 236-237 generally Morton actions. 225-228. Cohen (Ex. 35). id., 20-21; 14-17, see also Kelly 37 1 any.38 Never was might there even a hint that 17 any change worked exceptions the law or in the narrow Congress’ policy against alienation.
In Special 1926,however, a Attorney new Assistant to the George General, A. H. existing Fraser, concluded that the right-of-way probably statutes did not cover the Pueblos: quite “It is [the do] certain that statutes not include though them, but it [they] looks as did not.”39 Moreover, Fraser concluded prohibiting first clause of §17— “except may provided alienation Con hereafter *29 gress” literally that no transfer of interest —meant land could occur until acted at some unde point termined accordingly began the future.40 Fraser fil ing trespass pursuant suits against to the Pueblo Lands Act companies railroad rights-of-way and utilities that had across Pueblo lands.41 companies, obviously,
These
were not
to
anxious
submit to
litigation.
representative
extended
A
of one of them stated
that it
get
essential
was
to find a method to
easements and
rights-of-way
bureaucracy
“railroaded thru” the federal
with
delay.42
a
clearly
minimum of
The record
shows that the
permit
construction of 17 to
Pueblo alienation was devel
oped,
by
by
attorney
a Government official, but
an
Chicago
underwriting
bond house
one of the railroads.43
id.,
id.,
21;
38 1
(Ex. 29)
at
see
2
also
at 133-135
(Secretary’s approval).
39Letter
George
from
A. H.
Baca,
Fraser
to J. M.
(Apr. 1, 1926),
at 1
(Ex.
reprinted
59).
Kelly
in 2
211
40Letter
from George A.
Attorney
(Nov.
H. Fraser
General,
to
4,
at 4
1925),
(Ex.
reprinted
35).
in
From Many grantees otherwise would method.48 this quiet the Pueblo title under suits forced to defend been directly By acquiring Pueblos, from the deeds Act. Lands litigation dismissed or to be they avoid either to able were petitioner in case.49 this as defendants, out cheapest and easiest method as “the this Fraser described involving lands.50 way getting of” rid controversies *30 (May 2 Hagerman, at (Ex. to J. C. Cochrane H. 42); from Walter Letter (Ex. 50). Kelly 2 1926), 191 reprinted (Mar. 1, Burke, 2, 4 at to Charles H. Cochrane from Walter 44 Letter id., (Ex. 41). 4: “If the also at Kelly 171, See in 2 173 1926), reprinted to Government, they have decided been as Indians are wards Pueblo theory such a resort, it seem inconsistent last would the court of convey lands.” instance, power their have, to they hold to 45 (Feb. 27, General, 4 Attorney at H. to George A. Fraser Letter from 39). (Ex. Kelly 165 1926), reprinted in 2 46 Ibid. 47 Burke, (Apr. 1 to H. at Charles from C. Cochrane Letter Walter 69). (Ex. Kelly 234 1926), in 2 reprinted id., 38. 48 1 49 at dismissal). (order Kelly 1 36. See also App. 37 1928), (May 10, Gill, 1 Joseph at George A. H. Fraser to 50 Letter from 113). (Ex. Kelly 2 344 reprinted in
273 There usually “no ... difficulty all” in persuading Pueblos sign such deeds;51 a “carload of lumber” was some times thrown in to sweeten the deal.52 As the Solicitor for Department Interior recently observed, this con §of struction 17 frequently resulted in the outright avoidance of clearly applicable statutes would provided far greater procedural and financial protection to the Pueblos than a process that involved the “mere approval of an exist ing agreement negotiated Cf. United tribe.”53 by a States Locke, (1985) U. S. 84, n. dissent J., (Stevens, ing) (criticizing the Department of the Interior’s use of “every technical construction” of an ambiguous statute to enable the “suck[ing] up” property “much as a vacuum if cleaner, not watched closely, suck will up jewelry loose money”).
Section 17 was used only from sporadically 1920’s 1950’s. From 1926 to 1933 there were 55 approvals pursuant to its terms; from 1936 to 1944 there were 13; from 1953 to 1959 there were ll.54 Section 17 has never been since used 1959 to authorize any conveyance.55 On the other hand, since the 1920’s at least 779 rights-of-way over Pueblo lands have been obtained pursuant to the generally applicable right-of-way statutes accordance with the strict safe guards contained therein.56 In the 1940’s, the Solicitor for from R. (Mar. Letter H. Hanna George A. H. 25, 1926), Fraser re printed (Ex. 48). 2 Kelly frequently The deeds were actually signed; Santa Ana notes with respect to the right-of-way case, at issue in this “none of the Pueblo’s officers could sign even his name” original and “the of the easement they shows thumbprinted it.” Brief Respondent 11, n. 12. (Mar. Letter from R. H. George Hanna to A. H. 25, 1926), Fraser re (Ex. printed 48). Kelly 2in id., See also 1 at 26-27. Memorandum, Richardson at 5. Kelly
54 1
55 Ibid. 56 Ibid.; see Memorandum, also Richardson at 6: “In case, the instant *31 Department’s reliance on Section 17 falls far being of short consistent. Approximately rights-of-way 75 approved were pursuant to Section 274 §17 did that concluded Department Interior any such rights-of-way and acquisition of
authorize general statutes.57 pursuant to the made acquisitions must where occasionally § thereafter invoked 17 Nevertheless, to in order acreage [was] and involved” of amount a “small agency.”58 Consistent . . the for . work “considerable avoid generations, the Department in recent views with the “Congress year that last concluded Department’s Solicitor authorizing the as to be construed 17 intend Section did not contrary “ir view was lands,” that of alienation to correct had been in this case courts and that rational,” interpretation of that [earlier] Department’s “disregard the emphasized before has as the Government And section.”59 construction—such administrative earlier Court, this except one or two rights-of-way for only applied it was— support reasonably cannot therefore incidents, and isolated generally § out authorize would interpretation 17 that of an Pueblo lands.60 right of alienation However, greater number a far period 1928 1934. during the
primarily 1948 Acts.” to the 1928 pursuant approved rights-of-way were of 57 25, 1943, held that February of his memorandum “The Solicitor approved by Pueblos made way had been rights grants while April Act of 17. . . the to Section pursuant Interior Secretary of the by the dealing rights with acts certain to the Pueblos applicable . made 21,1928. . now thereunder promulgated regulations these Acts way and way.” Memoran rights of of such acquisition in the procedure govern the 1943), (Aug. Interior Secretary of the Weekley to D.W. dum from 98). (Ex. Kelly reprinted the Inte Zimmerman, Jr., to from William 58 Memorandum 100). (Ex. Kelly 1946), reprinted (May 31, rior Memorandum, at 5-6. Richardson shows, The record Curiae 27. as Amicus United States 60 Brieffor the sale used validate 17 was in 1928 however, one occasion that on “This Bernalillo, N. M. townspeople lands to acres of Pueblo Kelly parcels,” in small of claimants by dozens acreage was claimed pre held non-Indians —the in the town interspersed and was Nevertheless, sale was §in 16. envisioned cise situation “slightly the Pueblos from acquired land was under validated *32 agency expertise Court’s notion of deference to in an appears go something case, then, to like this: where a proffered construction of a statute was not followed for two years by private but attorneys was then advocated and “ac- quiesce[d]” byin the Government as a matter of convenience; where that fiduciary construction was then used to avoid the safeguards legislation away other but withered after a dec- ade or two; where the construction was followed less than 10% of the applied; to cases which it could have been where rejected by the construction years ago agency more than 40 agency’s top legal branded “irrational” just year; officer urged last and where the Government has given that compass the construction be a narrow at most, this Court as a matter of deference to such a “uniform” construc- adopt tion will the most extreme version of that construction as the law of the land.61
D. Canons Construction
Finally, § interpretation if even the Court’s of 17 had some plausible in the basis structure of the Pueblo Lands Act or its acre,” over although an $6.00 the Pueblo Lands appraisals Board’s “own valued most of it at several Id., hundred dollars an acre.” at 44. 61The Court’s “deference” to interpretation § Fraser’s 1926 of 17’s sec clause, ante, ond at n. is unconvincing for an additional reason. At various interpreted (1) § times Fraser 17’s clause literally as either first
prohibiting any acquisition of interests Congress unless (2) “hereafter” acquisitions, authorized such prohibiting involuntary transfers of such prior congressional interests without approval. See, g., e. George (Nov. Letter from A. H. Attorney General, Fraser to at 4 1925), (Ex. reprinted Kelly 35); Letter from George A. H. Fraser (Feb. Attorney General, (Ex. at 27,1926), reprinted 39). Kelly in 2 App. See also to Brief for Petitioner Today 3a-4a. rejects the Court both interpretations these silentio, sub adopting interpreta instead a novel tion of the first clause of 17 that no Ante, one has ever followed. principle 252-253. The Court’s prior deference to a administrative con appears struction therefore to be that such appropriate only deference is prior extent that the construction accords with the Court’s desired interpretation. this Court' construction history, canons
legislative
century nevertheless
early
19th
in the
since
followed
has
interpretations of
given
other
rejection
compelits
should
Nonintercourse
faithfully
terms
hew
17 more
this
Court—
grants
*33
Constitution
The
Act.
—not
lands,62and
respecting Indian
policy
power
national
set
policy
Congress’
of
century
cornerstone
19th
since
Indian
of
alienation
on
impose
restraints
strict
has been
responsibility
trust
federal
grounded
policy
on
title—a
fiduciary
general
accordance
In
tribes.63
Indian
toward
against
are
policy
alienation
this
departures from
principles,
Hualpai
rel.
ex
States
implied.” United
“lightly
be
not to
339, 354
U. S.
314
Co.,
R.
Fe
Santa
v.
Indians
Pacific
therefore
statutes
language
Indian
(1941). Ambiguous
alien
on
of restrictions
in favor
construed
always has been
Hollowbreast,
Cheyenne
v.
Tribe
g., Northern
e.
See,
ation.
613,
Long
U. S.
Jim, 227
(1976);
v.
Starr
649, 656
425
S.U.
extin-
to authorize
(1913). Congressional intent
unambiguous,”
“plain and
must be
title
guishment
Indian
of
Fe
Hualpai
v. Santa
Indians
rel.
Pacific
ex
States
United
expressed
“must
it either
is,
supra,
346 — that
at
Co.,
R.
surrounding cir
from
or be clear
Act
face
on the
412
history,”
Arnett,
v.
Mattz
legislative
and
cumstances
reservation).64
this
(termination
Just
(1973)
of
505
481,
U. S.
To
...
Power
shall
“The
8,§
8:
I,
cl.
Const., Art.
62 U.S.
authority to
. . .” The
.
Tribes
Indian
.
. . with
Commerce
regulate
if not
expressions,
fundamental
the most
“one of
is
property
tribal
control
Indian
Congress over
of
power
constitutional
of
expression,
major
Weeks,
U. S.
430
v.
Committee
Business
Tribal
Delaware
affairs.”
(1977).
86
York,
63
New
Nation
Indian
v. Oneida
County Oneida
of
g.,
e.
See,
of
York
v.
New
Nation
Indian
(1985); Oneida
of
226, 247-248
S.
470 U.
Nation,
Creek
v.
667-670; United States
S.,
Oneida,
414 U.
County of
17;
Pet., at
Georgia, Nation
v.
(1935); Cherokee
103, 109-111
U. S.
(1823).
McIntosh, Wheat.
Lessee
v.
Graham’s
Johnson
220-228, 508-528.
generally Cohen
See
Passenger
Washington
Commercial
State
Washington v.
also
County,
Itasca
Bryan v.
(1979);
658, 676
Assn.,
U. S.
Fishing Vessel
Term, we
principles
followedthese
concluding
that various
congressional enactments had neither authorized nor ratified
sales
land
the Oneida Indian Nation of New York; the
congressional language, we found, “far from demonstrates
plain
unambiguous
a
extinguish
intent to
Indian title.”
County Oneida v. Oneida Indian Nation New York, 470
U. S. 226, 248
Cf.
Montana
Tribe
Blackfeet
(1985) (state
Indians,
has seen contrary the Court’s because and reasons, these For Code. of the Pueblo clearly the structure flouts interpretation so significance of history, legislative Act, Lands subsequent only 17 can that I must conclude legislation, declaratory a broad attempted forth to having set read Congress believed Act as Nonintercourse reaffirmation applied Pueblos.66 to Act that construction Court’s argued, that the however, might be It giving respect degree greater awith the Pueblos treats that lands, disposing tribal automony broader them are the Pueblos simply a view reading reflects contrary is There managing affairs. own their incapable of somehow at one against policy alienation federal question that the no “protecting Indians paternalistic notions time embodied policy now federal But improvidence.”67 their own from policy Congress’ reflects grounds. different much rests on necessary are on alienation restraints its determination impact market full from Indian “insulate land tribal substantial preserve “a thereby to forces” society and of tribal the existence is] [that essential base con other canons of in violation stands interpretation 66 TheCourt’s conveyanc suggest, Pueblo I interpretation Under as well. struction set safeguards and financial procedural range of subject full ing is gener Indian tribes conveyances such governing the statutes forth Yet is not. conveyancing interpretation, the Court’s ally. Under conflicting interpreta such two faced with that, when established it is well rights preserving ambiguities favor resolve tions, must courts *35 trust obligation “the distinctive dictated course safeguards and —a dependent these dealings with in its upon the Government incumbent States, Nation v. United Seminole exploited people.” sometimes 225; Mitchell, 463 U. S., at States (1942). v. United See 286, 296 U. S. (1973); 164, 174 Comm’n, S. U. Tax State Arizona v. McClanahan (1943); 423, 431-432 States, U. S. v. United Indians Nation Choctaw (1930). generally Cohen 363, 367 Shaw, 280 U. S. Carpenter 221-225. 67 Id., at 509. respondent
culture.”68 As the Pueblo of Santa Ana has argued: inconsistency
“There is wanting no in the Pueblos to applicability insure array to their lands of the full federal restrictions on alienation. Like other tribes, the long Pueblos wanting as communities take the view to preserve experience prior their homelands. Bitter recently the Pueblo Lands Act, and even more . . has . agree shown that councils can tribal be induced to conveyances. single unwise A such transaction could cause the total loss of the land base, and the ultimate disappearance entity. Reposing tribal an uncon- delegable power approval ditioned, Secretary, in the may provide adequate protection against moreover, not improvident Characteristically, transactions. . . . it is non-Indian entities such as Petitioner and amici who argue ‘emancipation’ for of the Pueblos.”69 policy against The federal standing long- alienation, and this Court’s deferring policy, may canons of construction to that may ultimately question be sound. But that ais Congress, indulge and it is not for this unsupport- Court to statutory analysis simply able to further its own views on the proper management of Indian affairs.70
68 Ibid. “The continued enforcement of restrictions, federal view, in this perceived incompetence derives not from a ‘ward,’ but per from a ceived value in desirability separate of a polity.” Indian culture and Id., (1973) (re at 510. Rep. Tribe). See also No. 93-604 S. Menominee Brief for Respondent n. 25. See also Price, Regulat & Chambers ing Sovereignty: Secretarial Discretion Leasing Lands, and the of Indian 26 Stan. L. Rev. 1061 repeatedly justify Court tries its decision reference to the “unique “unique so-called status” ‘interesting history of the Pueblo Ante, ante, 240, 242; Indians.’” at see also Congress’ Yet con judgment sistent which some deference is due —has since 1851 been —to the Pueblo Tribes be in position should “the same ... fed other erally recognized Indian Rep. 94-1439, tribes.” H. R. Conf. at 4. Simi-
1—11—1HH certiorari, this petition a writ for us on came As it only to the related that statute obscure an involved case excep- two one or but With in New Mexico. Tribes outright alienation to sanction used had been never it tions, supra, used had been and it n. see lands, of tribal convey 60-year approximately in its 80 times interests lesser virtually into had fallen history. the statute Moreover, generations. two the last for and complete oblivion disuse presented question advised were alsoWe —however companies involved— Tribes important to the individual handful ease- than a implicated little more nevertheless easements those most of advised, we were And, ments.71 (under provisions, general renegotiated already been had 17).72 §not of New District Court the District addition,
In had Appeals Tenth Circuit for the the Court of Mexico proffered construction petitioner’s concluded both the Pueblo status the well-settled not accord 17 did posi- geographic of their courts, virtue Those Tribes.73 jurisdiction over essentially exclusive exercised have tion, Mexico pertaining since New to the Pueblos questions federal continuing exposure to cases their result of aAs statehood. best have been involving these courts Pueblos, history ‘interesting unique and “the position understand close at to evaluate 240, at Indians,”’ ante, the Pueblo consistently Joseph decision this Court exception of larly, with lifestyle history or notwithstanding differences held that has tribes under as other the identical status the Pueblos S., at Chavez, 290 U. g., States v. e. United See, Act. Nonintercourse 320-321; United Fall, S., at 273 U. Rosa v. 361-365; Santa Sandoval, States v. United 439-443; S., Candelaria, 271 U. at States (1913). 28, 45-48 231 U. S. 6, 24-25. Opposition Brief Arg. 2-3; Tr. of Oral Respondent Brief for 72 Id., 24-25; also see 32-33. 86-92; 734 F. 2d App.
range relationship between the Pueblo Tribes and the Federal Government. With the of exception several proce- dural dismissals of title quiet actions the 1920’s,74 these courts over the last 60 years held that consistently Pueblo lands axe fully governed by the Nonintercourse Act and that such lands are inalienable without explicit congres- sional authorization.75 They also have held that consistently 74The argues Court that the District “placed Court stamp 1920’s approval of on this transaction and others,” numerous and that these ac tions are respect.’” Ante, very great “‘entitled to However, apparently only exceptions, two “approval[s]” District Court’s simply consisted of granting motions (acting guard Government as Pueblos) ian for the quiet dismiss certain title actions the defend before ants had even complaints. answered the These dismissals were not on the merits and validity § of conveyancing 17 contested, had not been they therefore upon cannot be relied authority as for the Court’s decision. Texas, See Oklahoma v. 21, Henson, (1926); 272 U. Vicksburg v. S. 42-43 259, 269, 231 U. S. 273
The
did, however,
District Court
enter final decrees in
quiet
two
title
suits that sanctioned the use of 17. See United States as Guardian
theof
Arvizo,
Equity
v.
(May 14,1931);
No. 2079
United States
of Acoma
Laguna
Guardian
the Pueblo
Armigo,
(Nov.
v.
Equity
2,
No. 2080
of
of
1931). The record shows that the defendant
both cases did railroad
negotiate
right-of-way
new
agreements
Pueblos,
with the
simply gath
but
ered the
dating
old deeds
successfully
1880’s back to the
submitted
them to
Secretary
retroactive
validation without Pueblo
approval
payment
and without the
compensation.
of
39-40;
new
1 Kelly
2
(Exs. 101-106).
id.,
“[fjortu-
at 301-313
suggested,
As one historian has
nately
viability
for the
Act,
of the Pueblo Lands
such action was not liber
ally indulged, otherwise there would have been little reason for the rest of
the Act. The
simply
could
have ratified all of
the old deeds
which
id.,
possession
non-Indians took
of Pueblo lands.” 1
at 40-41.
75See,
g.,
e.
University
Mexico,
United States v.
New
703,
731 F. 2d
(CA10),
denied,
706
Plains Electric Generation
(1984);
cert.
decisions below only not con- did law not settled And this law. this settled directly from but Court, followed of this flict with decisions them.77 the Court
Notwithstanding considerations, of these all today are not Pueblos that the holds granted certiorari78 Mexico, supra, at 706 University New v. See, g., States e. United fully under were and their lands (§ Pueblos that the merely “reaffirmed the Nonintereourse protection of and the guardianship (§ merely “insured States, supra, at Act”); Alonzo v. United States Sandoval in the United implicit decision *38 the restrictions that Con which force”; that the restrictions it “insured in . . . would continue respect to lands owned existing, with recognized as theretofore gress continue, community, Pueblos, should as a New Mexico possessed extinguished, provided as had been title the Pueblos’ except in eases where Act”). for in such were deferring [who] to “individuals purported concern The Court’s of Con- understanding of the actual intent an likely to have had far more panel 254-255, might have been better directed ante, at gress,” States Senator a former Judge Bratton was United Chief decided Alonzo. legisla- right-of-way the 1928Pueblo sponsored and had from New Mexico Lands of the Pueblo to 16 amendment 19, supra, and the 1938 tion, n. see the two District one of Judge Phillips had been 20, supra. Act, n. see Act. Lands the Pueblo title suits under quiet judges who heard Court member, opinion below authored panel Breitenstein, Judge the third the instant case. 362-365; Pueblo Santa Chavez, supra, v. 77 See, g., States e. United (Nonintereourse “applies] here Act S., Fall, at 320-321 Rosa v. 273 U. nomadic or classified are to be concerned the Indians whether with, it does dispensed can be requirements [its] . . . None of Indians. attempt to an there even of them respect of most appear (“While is no supra, at 441 there Candelaria, v. comply”); States United Indians, ... it to Pueblo Act] in the express [Nonintereourse reference and, in spirit plainly its They are within including them. taken as must be ”); States United words, of Indians’ ‘any tribe fairly opinion, within its our Sandoval, supra, at 45-49. v. 17.1(a) (c)(discretionary grant certiorari Rules But see this Court’s departed from far “has so alia, where, decision below inter appropriate for an exer as to call proceedings ... judicial usual course accepted and important ques- an “has decided supervision,” power this Court’s cise of
subject the terms of the Nonintercourse Act and that, under §17, they may instead “convey good title to [their] the approval of the Secretary of the Interior.” Ante, at 247. The Court, ironically, has thus come full cir- In United States v. cle. Joseph, U. S. 614 (1877), the Court exempted the Pueblos from the Nonintercourse Act. As the Court subsequently conceded, that decision rested on assumptions “at variance with other recognized sources of information . . . and with the long-continued action of the legislative and executive departments.” United States Sandoval, U. S., at 49. Congress was required enact the Pueblo Lands Act to resolve the morass that the Court’s uninformed and improvident decision Joseph had created. Today, its first and probably last direct encounter with the Act, Court once again an renders uninformed, improvi- dent, and sweeping opinion that is “at variance . . . with the long-continued action of the legislative and executive depart- ments.” United States v. Sandoval, supra, at 49. And, once again, Congress most likely will forced to in and step clean after up the Court’s handiwork.
I dissent. *39 tion of federal which been, law has not be, but should settled Court, this or has decided a question federal in way in conflict applicable deci- of this sions Court.” See also Estreicher Sexton, & University New York Supreme (1984) (executive Project Court (to 14-15 summary) published in 59 N. Y. (1984) (footnotes U. L. Eev. omitted)) (“The can, Court should, and police establish and a framework for delegation and exercise of responsibility lower courts. Except in relatively rare situations justifying intervention, immediate the Court manager would accord a presumption regularity validity decisions state and lower federal A manager courts. wise delegates responsibilities and, subordinates absent an indication something awry, is accords their decisions a presumption of validity. To do otherwise denigrate is to the authority of actors, subordinate thereby diminishing their own sense of responsibility ultimately increasing manager’s tasks as well as the workload”). overall