[Senate Hearing 107-548]
[From the U.S. Government Publishing Office]
S. Hrg. 107-548
T'UF SHUR BIEN PRESERVATION TRUST AREA ACT
=======================================================================
JOINT HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
AND THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
S. 2018
TO ESTABLISH THE T'UF SHUR BIEN PRESERVATION TRUST AREA WITHIN THE
CIBOLA NATIONAL FOREST IN THE STATE OF NEW MEXICO TO RESOLVE A LAND
CLAIM INVOLVING THE SANDIA MOUNTAIN WILDERNESS AND FOR OTHER PURPOSES
__________
APRIL 24, 2002
Printed for the use of the
Committee on Energy and Natural Resources
and the Committee on Indian Affairs
U.S. GOVERNMENT PRINTING OFFICE
80-581 WASHINGTON : 2002
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii FRANK H. MURKOWSKI, Alaska
BYRON L. DORGAN, North Dakota PETE V. DOMENICI, New Mexico
BOB GRAHAM, Florida DON NICKLES, Oklahoma
RON WYDEN, Oregon LARRY E. CRAIG, Idaho
TIM JOHNSON, South Dakota BEN NIGHTHORSE CAMPBELL, Colorado
MARY L. LANDRIEU, Louisiana CRAIG THOMAS, Wyoming
EVAN BAYH, Indiana RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California CONRAD BURNS, Montana
CHARLES E. SCHUMER, New York JON KYL, Arizona
MARIA CANTWELL, Washington CHUCK HAGEL, Nebraska
THOMAS R. CARPER, Delaware GORDON SMITH, Oregon
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Brian P. Malnak, Republican Staff Director
James P. Beirne, Republican Chief Counsel
Mike Connor, Council
Frank Gladics, Professional Staff Member
----------
COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
KENT CONRAD, North Dakota FRANK MURKOWSKI, Alaska
HARRY REID, Nevada JOHN McCAIN, Arizona,
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
PAUL WELLSTONE, Minnesota CRAIG THOMAS, Wyoming
BYRON L. DORGAN, North Dakota ORRIN G. HATCH, Utah
TIM JOHNSON, South Dakota JAMES M. INHOFE, Oklahoma
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
C O N T E N T S
----------
STATEMENTS
Page
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 12
Bryson, Nancy, General Counsel, Department of Agriculture........ 21
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado........ 2
Craig, Hon. Larry E., U.S. Senator from Idaho.................... 9
Cummins, E. Tim, County Commissioner, Bernalillo County,
Albuquerque, NM................................................ 55
Domenici, Hon. Pete V., U.S. Senator from New Mexico............. 3
Hordes, Stanley M., Ph.D., President, HMS Associates, Inc........ 29
Inouye, Hon. Daniel K., U.S. Senator from Hawaii................. 1
Leshy, John D., Former Solicitor, Department of the Interior..... 34
Miller, Anita P., Co-Chair, Sandia Mountain Coalition,
Albuquerque, NM................................................ 59
Murkowski, Hon. Frank H., U.S. Senator from Alaska............... 11
Myers, William G., III, Solicitor, Department of the Interior.... 13
Paisano, Stuwart, Governor, Pueblo of Sandia, Sandia Tribal
Council, Bernalillo, NM........................................ 47
Riordan, Guy, Owner, Piedra Lisa Tract, Albuquerque, NM.......... 82
Sansonetti, Thomas L., Assistant Attorney General for Environment
and Natural Resources, Department of Justice................... 17
Stern, Walter E., Esq., Modrall, Sperling, Roehl, Harris and
Sisk, Representing Sandia Tram Company......................... 69
Sullivan, Edward, Executive Director, New Mexico Wilderness
Alliance, Albuquerque, NM...................................... 75
APPENDIXES
Appendix I
Responses to additional questions................................ 91
Appendix II
Additional material submitted for the record..................... 111
T'UF SHUR BIEN PRESERVATION
TRUST AREA ACT
----------
WEDNESDAY, APRIL 24, 2002
U.S. Senate,
Committee on Energy and Natural Resources,
Committee on Indian Affairs,
Washington, DC.
The committees met, pursuant to notice, at 2:35 p.m. in
room SD-366, Dirksen Senate Office Building, Hon. Daniel K.
Inouye, Chairman of the Committee on Indian Affairs, presiding.
OPENING STATEMENT OF HON. DANIEL K. INOUYE,
U.S. SENATOR FROM HAWAII
Chairman Inouye. We gather this afternoon to receive
testimony on S. 2018, a bill to establish the T'uf Shur Bien
Preservation Trust Area within the Cibola National Forest in
the State of New Mexico, to resolve a land claim involving the
Sandia Mountain Wilderness, and for other purposes.
The chairman of the Energy Committee, Senator Bingaman, is
presently actively involved in a debate in the Senate chamber,
so he is unable to be with us and he has asked me to convene
the session.
As you know, this is not the first erroneous boundary
service or the first inaccurate interpretation of the words
used in a statement of boundaries that has come before the
Congress. We have had need to address similar circumstances in
several other States and so we are accustomed to the issues
that are before the committees today.
In reading the testimony of the witnesses last evening, I
was particularly impressed with the thoughtful statements of
the Pueblo of Sandia. It is clear to me that not only has this
area always had special cultural and spiritual significance to
the current members of the Pueblo and many generations of their
ancestors, but that the Pueblo is committed to preserving the
values of the wilderness designation that was brought about
under the stewardship of the senior Senator from New Mexico, my
good friend Pete Domenici.
If one knows a little bit about the Pueblo, one might have
an even better understanding of the commitment the Pueblo has
to maintaining the status quo in this area. For those of you
who may not know, the Pueblo of Sandia is one of the Nation's
leaders in environmental protection and management. For
example, in 1997 the Pueblo was the first tribal recipient of
the U.S. Environmental Protection Agency's Partnership for
Environmental Excellence Award, for the Pueblo's outstanding
success in developing an environmental management program to
protect and manage tribal resources.
Two years later, the John F. Kennedy School of Government
at Harvard University recognized the Pueblo of Sandia with a
$10,000 high honor award for excellence in tribal self-
governance in the field of environmental protection. Of the 556
federally recognized tribes in the Nation, the Pueblo of Sandia
was one of only eight tribal governments in the Nation to
receive this prestigious honor.
It is clearly a further testament to the Pueblo's concern
for the environment that they maintain an environmental
department whose number of personnel is equal to 4 percent of
the total tribal citizenry. So as we receive testimony on S.
2018 today, I believe it is important that we keep in mind the
context in which we are considering the terms of the settlement
agreement.
The Federal court has ruled that an earlier Interior
Department Solicitor's opinion could not stand because it did
not accurately take into account the circumstances surrounding
the Pueblo's land grant. Should the Congress fail to act before
the terms of the settlement agreement expire in November,
should this matter then proceed to be a subject of further
litigation, in all likelihood the claims of the Pueblo will
prevail.
The fact that the Pueblo has come to the table with other
interested parties and has agreed to preserve the status quo on
lands to which they could otherwise assert exclusive use
demonstrates not only a measure of utmost good faith, but of
desire on the part of the Pueblo to assure that good relations
among neighbors will be the hallmark for the path to be
followed by future generations.
So I commend the parties for all that they have done to
bring us to this point and I hope that we can bring this matter
to a swift resolution and avoid the specter of further time-
intensive and costly litigation.
May I now call upon my co-chairman, Senator Nighthorse
Campbell.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL,
U.S. SENATOR FROM COLORADO
Senator Campbell. I thank you, Mr. Chairman. Just very
briefly, I thank you for convening this hearing. I think that
when we have a chance for all the affected parties to come to
Congress and be respectful of each other's views, it is
certainly a step in the right direction.
It is my understanding that the exact location of the
eastern boundary of the Sandia Pueblo has been an issue for
decades. It is not unusual for those boundaries, as you
mentioned, to be of some dispute since the methods of measuring
in the days when it was negotiated were certainly not a clear
science, often done just by where a tree stood or a rock stood
or by what was called lengths of chains. Clearly, the method of
transferring the land itself was suspect in many cases, some
done by negotiation, some done at gunpoint, as everyone knows.
But we simply cannot turn the clock back and in my opinion,
when we have two different opinions by two predecessor
Solicitor's opinions, when they have the opposite conclusion,
that leaves us with the difficult task of trying to find some
kind of a compromise and some kind of an agreement to avoid
costly and expensive litigation that will in my view, as yours,
probably hold in favor of the Pueblo and thereby jeopardize the
lives of the non-Indian people who have homes in that area, who
invested their life in that area. I do not think that is
particularly good, either.
There is at least one part of Solicitor Leshy's opinion
that seems helpful. He found that a new survey was necessary,
but postponed the implementation of his opinion in the hope
that the parties could reach an agreement that would make such
a survey unnecessary. The question I would have answered from
each witness is whether you agree that we should continue to
try to reach a settlement or we should continue to allow each
new Solicitor, Interior Solicitor, to take his best shot at it
and reach an opinion that might be overturned by a court.
Finally, because of the possibility that this bill may be
used as a model or a template for many other similar
controversies, I trust that the Indian Affairs Committee, on
which I serve with you and Senator Domenici, too, will have an
opportunity to formally review any bill that we move forward
with and consider changes which address the concerns.
Thank you, Mr. Chairman.
Chairman Inouye. Thank you very much.
May I now recognize the senior Senator from New Mexico,
Senator Domenici.
STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR
FROM NEW MEXICO
Senator Domenici. Thank you very much, Mr. Chairman.
Since a large number of the people in the audience are from
my State, might I say welcome to all the New Mexicans, most of
whose faces I recognize. Those that I do not, we welcome you
nonetheless.
My opening statement, Mr. Chairman, is rather long and I
will do the best I can to state it quickly. But it is my way of
laying this entire matter before the people in my State, who
are genuinely interested.
I want to thank the Energy and Natural Resources Committee
and the Indian Affairs Committee for holding this joint
hearing. I also welcome the witnesses. We have a pretty good
array of witnesses and in 2 or 3 hours we surely ought to get a
good flavor and a lot of questions answered.
I would like to speak briefly about this land, its history
and its importance to our State. Much of the area in question
has for the past quarter century been congressionally mandated
wilderness area, the highest level of protection for publicly
owned lands that Congress can bestow. I worked on the creation
of that Sandia Wilderness in 1978 during my first term here in
the Congress.
We were able to pass the wilderness designation giving this
land the wilderness protection even though it is easily
accessible by a very short walk from the city limits of
Albuquerque. The proximity demanded wilderness designation
because this land was facing potentially severe degradation. I
consider designation of this wilderness area one of the most
important legacies that I will leave as a Senator from New
Mexico.
More than 1 million visitors use this land each year and a
significant commercial interest exists on the land already. You
can see why it is important as to how we go about transferring
this land in light of just that little bit of background.
The stewardship of these 10,000 acres has been good, even
in the face of dramatic increases in use and population
increases. I believe all parties to this issue want this good
stewardship to continue and the land preserved for posterity.
Governor Paisano has told me that personally, as have
homeowners and city and county officials.
Three significant interests seem relevant here: first, the
interest of the Pueblo of Sandia, whose members have used the
land before any of the other parties in this matter; second,
the interest of the private landowners in the area, who find
themselves in some potential jeopardy as far as full use and
access to their property; and third, an often forgotten
interest, that of the American public that uses this unique
urban-wilderness interface in ever-increasing numbers. They are
the public that we must serve.
The specific question that has haunted this land since
legal proceedings began in 1980 is simple: Was a serious error
made in surveying the original grant of land to the Pueblo of
Sandia or was the original survey accurate to the best of our
ability to determine? Our search for the truth in this matter
faces serious historical challenges. The origin of the dispute
began more than 200 years ago and has spanned several different
governments, territorial, colonial, pueblo, and Federal. The
original documents are written in an archaic Spanish not widely
used today, even in our State.
This property's confusing historical record is now further
complicated with a wide diversity of current interests on the
land, which I have just stated in my opening remarks.
I am pleased that among the witnesses we will hear from
today is one of the very few persons alive who has personally
reviewed this specific question.
The bill's main problems: we are here today to review a
bill proposed by my colleague Senator Bingaman. I have several
concerns with the bill's general approach as well as its
substantive effect. First, the bill fails to resolve or even
address the core question which has led to these 20 years of
litigation. Senator Bingaman's bill instead takes the approach
of attempting to embody in legislation the basic points of a
settlement agreement entered into last year by only some of the
parties involved in this litigation.
Senator Bingaman's bill thus departs from the normal
avenues established by Congress to deal specifically with
claims such as these, the so-called Indian Claims Commission
Act, ICCA, that is used quite often in similar cases in our
State and throughout Indian country; or the use of conservation
easements to ensure that historical use be retained, but that
management of public lands be left in the hands of the public
agencies. That is two approaches.
Secondly, Senator Bingaman's bill operates to effectively
give the Pueblo veto power over all future uses of this land.
This situation, while at first blush it might appear to be
appropriate, could lead to disastrous consequences. Let me give
you just one example.
The management plan for the area that would become law if
S. 2018 is passed requires the development of a comprehensive
fire management plan. The legislation requires that the Pueblo
of Sandia and the counties must agree with all new uses in this
area. To the extent that the fire management plan fails to meet
the needs of either the Pueblo or the county, there will be a
conflict. If these conflicts are not resolved up front, when
fire occurs I am concerned that fire crews will not be able to
implement suppression efforts in a timely and effective manner.
This should be determined in advance or in a manner better than
prescribed in the Senate bill.
I also suspect that private land owners will likely have a
different goal for the fire plan. They will likely want
immediate and complete suppression of fires, while Forest
Service and perhaps the Pueblo may support the introduction of
more prescribed burns and let-burn policies for the forests.
Given our experience in the Los Alamos fires of 2000, I for one
would like to know about what the fire plan for this area might
be before we legislate.
Finally, the bill operates to legislatively ratify a new
management plan for the area that has not enjoyed the benefit
of a formalized public review. The management plan as some read
it is not subject to review under the National Environmental
Policy Act. In fact, the plan has not been reviewed under any
of the relevant statutes that Congress has passed and various
presidents have signed into law.
Now, it may very well be that it is the position of some,
that this is immune from those laws. We hear so much from
Americans that we cannot have any kind of transaction that is
even close to a major Federal action without those laws. I just
raise it here today.
While it is true that any future amendments to this
proposed management plan might be subject to some public and
agency review, the underlying plan S. 2018 ratifies, if it is
ratified, is exempt, I repeat exempt, from such review. This
strikes me as a significant departure from the entire
environmental regime imposed on the resources of the West
during the past 25 years.
I have made it clear to Senator Bingaman, my good friend,
and others that I have other problems with S. 2018, the
underlying settlement agreement and the management plan it
proposes to ratify. I will include those concerns with my
formal statement.
Before I conclude, I understand that the Pueblo of Sandia
supports most of the Bingaman legislation. The Pueblo will
speak for itself this afternoon and it will be helpful to know,
if they don't, what they don't. I am told that some of
Bernalillo County's concerns and those of the city of
Albuquerque also have been addressed. That would mean, if it is
only some, that there are some that are not. We will hear from
the county and home owners later.
I understand that many points of clarification remain. The
devil is always in the details. We will hear these details
today. I know that home owners and the county have spent
hundreds of thousands of dollars on this issue and, to quote
one of them, they are about ``bled dry.'' Yet in this country
we try to find justice, not on the basis of who has the most
money, but who has the most facts.
With that, I welcome today's hearing and look forward to
the witnesses' testimony. There are two other issues that I
would quickly raise. They are addendums to my statement. One is
veto power. I believe that we have to look at that carefully.
The Federal Government must--there is another issue. If in fact
any laws are changed or management affecting the area is
changed by the Federal Government, the Federal Government must
compensate the Pueblo as if they own the land in fee, full
compensation in that event.
Tribal law precedent raises another interesting issue and
there are two others, but I will just ask that they be inserted
in the record as if I had stated them.
Thank you, Mr. Chairman.
[The prepared statement of Senator Domenici follows:]
Prepared Statement of Hon. Pete V. Domenici, U.S. Senator
From New Mexico
intro
First, I want to thank the Energy and Natural Resources Committee
and the Indian Affairs Committee for holding this joint hearing. As a
long-time member of both committees, I believe that the important
subject before us today merits such an unusual joint hearing. I also
welcome the witnesses, especially those New Mexicans who have traveled
a long way to testify today. The large number of other New Mexicans
present at this hearing dramatizes the interest that many of my
neighbors in Albuquerque and the surrounding region have in this
matter.
history
Before I comment directly on the bill that is the subject of
today's hearing, I would like to speak briefly about this land, its
history and importance to our state.
Much of the area in question has for the past quarter of a century
been a Congressionally mandated Wilderness Area, the highest level of
protection for publicly-owned land the Congress can bestow. Before most
of the members of these two committees were Senators, I worked on the
creation of the Sandia Wilderness Area. In 1978, during my first term,
we were able to pass the wilderness designation, giving this land
wilderness protection even though it is easily accessible by a very
short walk from the city limits of Albuquerque. Indeed, its proximity
demanded wilderness designation and without it, this land was facing
potentially severe degradation. I consider designation of this
wilderness area one of the most important legacies I will leave as a
Senator from New Mexico.
Although the land is a protected wilderness area, more than 1
million visitors use it each year, and significant commercial interests
exist on the land. Apparently the stewardship of these 10,000 acres has
been good, even in the face of dramatic increases in use. I believe
that all parties to this issue want this good stewardship to continue
and this land preserved for posterity. Governor Paisano has told me
that personally, as have homeowners and city and county officials.
Three significant interests seem relevant here: first, the interest
of the Pueblo of Sandia, whose members have used the land before any of
the other parties in this matter; second, the interests of the private
landowners in the area, who find themselves in some potential jeopardy
as far as full use and access to their property; and, third, an often
forgotten interest, that of the American public that uses this unique
urban-wilderness interface in ever-increasing numbers.
The specific question that has haunted this land since legal
proceedings began in the 1980s is simple: ``Was a serious error made in
surveying the original grant of land to the Pueblo of Sandia, or was
the original survey accurate to the best of our ability to determine?''
Our search for the truth in this matter faces serious historical
challenges. The origin of the dispute began more than 200 years ago and
has spanned several different governments--Territorial, Colonial,
Pueblo, and Federal. The original documents are written in an archaic
Spanish not widely used today in our hemisphere. But this property's
confusing historical record is now further complicated with a wide
diversity of current interests in this land.
I am pleased that among the witnesses we will hear from today is
one of the very few persons alive who has personally reviewed this
specific question.
the bill's main problems
We are here today to review a bill proposed by my colleague,
Senator Bingaman. I have several concerns with the bill's general
approach, as well as its substantive effect.
First, the bill fails to resolve, or even address the core question
which has led to these 20 years of litigation. Sen. Bingaman's bill,
instead, takes the approach of attempting to embody in legislation the
basic points of a settlement agreement entered into last year by only
some of the parties involved in this litigation. Sen. Bingaman's bill
thus departs from the normal avenues established by Congress to deal
specifically with claims such as these: the Indian Claims Commission
Act (``ICCA''), used quite often in similar cases in our state and
throughout the nation; or, the use of conservation easements to insure
that historical uses be retained, but that management of public lands
be left in the hands of public agencies.
Secondly, Sen. Bingaman's bill operates to effectively give the
Pueblo veto power over all future uses of the land. This situation,
while at first blush may appear appropriate, could lead to disastrous
consequences.
Let me give you an example. The Management Plan for this Area (that
would become law if S. 2018 is passed) requires the development of a
comprehensive fire management plan. The legislation also requires that
the Pueblo of Sandia and the Counties must agree with all new uses in
this area. To the extent that the fire management plan fails to meet
the needs of either the Pueblo or the County there will be a conflict.
If these conflicts are not resolved up front, and a fire occurs, I am
concerned that fire crews will not be allowed to implement suppression
efforts in a timely and effective manner.I also suspect the private
landowners will likely have a very different goal for the fire plan,
(i.e. they will likely want immediate and complete suppression of
fires), while the Forest Service and perhaps the Pueblo may support the
introduction of more prescribed burns and a let-burn policy for natural
fires. Given our experience in Los Alamos and the fires of 2000, I for
one would like to know about what the fire plan for this Area might be,
before we legislate.
Finally, the bill operates to legislatively ratify a new management
plan for the area that has not enjoyed the benefit of a formalized
public review. This management plan, as some read it, is not subject to
review under the National Environmental Policy Act. In fact, the
management plan in S. 2018 has not been reviewed under any of the
relevant statutes Congress has passed and various President's have
signed into law. While it is true that any future amendments to this
proposed management plan might be subject to some public and agency
review, the underlying plan that S. 2018 ratifies is exempt, I repeat,
exempt from such review. This strikes me as a significant departure
from the entire environmental regime imposed on the resources of the
West during the past 25 years.
I have made it clear to Sen. Bingaman and others that I have other
problems with S. 2018 and the underlying settlement agreement and
management plan it proposes to ratify. I will include those concerns
with my formal statement today as part of the record.
Before I conclude, I understand that the Pueblo of Sandia supports
most of the Bingaman legislation and the Pueblo will speak for itself
later this afternoon. I am told that some of Bernalillo County's
concerns, and those of the City of Albuquerque, have also been
addressed. We will hear from the County and homeowners later, also. I
understand the many points of clarification remain, and that the devil
is always in the details. We will hear those details today. I know that
the homeowners and the County have spent hundreds of thousands of
dollars on this issue and, to quote one of them, ``are about bled
dry.'' Yet, in this country, we try to find justice not on the basis of
who has the most money, but who has the most facts.
With that, I welcome today's hearing and I look forward to the
witnesses' testimony.
ADDENDUM
Here are some of my specific other concerns with this legislation:
1. ``Veto Power"
while this legislation gives greater control to local
parties over land use, it arguable contradicts public and
environmental protections such as those under NEPA.
Specifically, two local counties and the Pueblo are given an
exclusive ``right to consent'' to new uses in the area. The
public is left out of any management decisions.
If Congress or the Forest Service ever changes laws or
management effecting the area, the federal government must
compensate the Pueblo as if they owned the land in fee. This
opens the federal government up to millions in potential
claims.
This assumes that the Pueblo has what is tantamount to a
right in fee title. That has not been shown. To date, no court
of law has heard the merits of this claim based on a
presentation of evidence. The only finding that the claim is
meritorious is an opinion of one Interior Solicitor which is
diametrically opposed to a previous Solicitor's opinion. There
are clearly differences of opinion on the law and facts that
could be decided one way or the other.
2. Tribal Law Precedent
There is no precedent for any Indian tribe having exclusive
criminal and civil jurisdiction over a tract of public land.
This confuses the traditional distinction between tribal land
and non-tribal land.
As written, this area could be the exclusive hunting and
fishing domain of the Pueblo ostensibly for religious and
cultural purposes. This will inevitably result in conflicts
with non-Indian users of the area as well as the adjacent
landowners.
Congress intended to settle all outstanding tribal land
claims under the Indian Claims Commission Act (``ICCA''). If
the legislation were to pass, the question becomes this: Could
tribes that either failed to bring claims before the ICCA or
tribes that received monetary compensation under the ICCA, now
look for an administrative boundary adjustment for additional
land?
Based on former Solicitor Leshy's opinion, tribes and others
may consider appealing to the Department of the Interior for
boundary adjustments, since Mr. Leshy held that Interior can
administratively remove Congressionally designated land from
the Forest Service.
S. 2018 purports to give trust status to certain lands
acquired by the Pueblo within the area. This gives the Pueblo
exclusive jurisdiction over these small islands of trust land
contained within a National Forest. For the general public,
this raises the specter of Interior and the Pueblo making
different rules and regulations for small inholdings. Thus,
could an inadvertant trespass by an innocent hiker land that
person before a tribal court?
The jurisdiction given to the Sandia Pueblo under the bill
is representative of ``Indian Country''--that of tribal trust
land, while purporting to be maintained as National Forest
land. Therefore, will all tribal trust rights and
responsibilities also apply?
3. Wilderness Issues
The bill eliminates section 4(d)(4) of the Wilderness Act,
which gives the President authority for establishment of
facilities for the general public interest. Not only does this
pick and choose the applicability of sections of the Wilderness
Act, but it could potentially effect needed emergency response
activities such as for fire.
If modifications of the Wilderness ``nature'' of the area--
which is a vague characterization--occur, the government will
be responsible for millions of dollars in damages to the
Pueblo.
Finally, the bill ``freezes'' current land status and
management in the year 2002. At the same time, S. 2018 exempts
this area from some existing laws and exempts the area from all
future laws unless Congress specifically applies those laws to
the area.
The Pueblo has claimed it seeks protection of the area, and
wishes only free and unrestricted access to the area for
traditional and cultural uses. Therefore, does S. 2018 imply
that: federal Wilderness designation is NOT protective enough;
and current federal laws to preserve and protect cultural and
religious resources, such as the American Indian Religious
Freedom Act, will not be adequate?
4. Bad Precendent
I am concerned, in addition, about the precedent this sets
for similar disputes in my home state and in other states. In
this time of unprecedented national litigation over land and
water, I believe we have to be very careful. I worry about the
impact our actions might have on other historically-based
claims, not just from American Indians, but from other parties
who believe that their land has been withheld from them
unjustly. When we are in an area of great uncertainty, our
public responsibility is to move with great care.
Chairman Inouye. Without objection.
Now it is my pleasure to recognize a member of the Energy
Committee, Senator Craig.
STATEMENT OF HON. LARRY E. CRAIG, U.S. SENATOR
FROM IDAHO
Senator Craig. Mr. Chairman, let me first ask unanimous
consent that the testimony of Senator Frank Murkowski, the
ranking member of that committee, become a part of the record.
Chairman Inouye. Without objection, so ordered.
Senator Craig. I think as we know, he is on the floor with
the chairman this afternoon as we move to try to finalize the
energy bill.
I have a lengthy statement and I will ask unanimous consent
that it become a part of the record and I will shorten it for
the sake of those witnesses who are sitting out there
diligently waiting to be heard by this committee. But I will
tell you that a lot of what I have to say is reflective of many
of the comments of the senior Senator from the State of New
Mexico.
While I understand these issues oftentimes take on a local
importance and a local character as it relates to the need to
settle, when we are dealing with public lands in our Nation
there are processes and rules that we all play by and we must
play by for the sake of the public. Without question, Pueblo
Sandia and the tram company, the Forest Service, the Department
of the Interior, as well as all of the affected parties who did
not sign the agreement, deserve to be heard. I would hope, as I
think my colleague from New Mexico has already stated, we can
make an effort to resolve this issue.
You know, claims stemming from 1859 or earlier that were
not resolved by the Indian Claims Commission between 1946 and
1978, well, I guess they ultimately make their way here. As a
result of that, we have got to resolve them. At the same time,
following those time frames and especially starting in the mid-
seventies, we developed some processes of transparency in
decisionmaking that are critical to the public interest,
whether it is FLPMA, the Federal Land Planning Management Act,
or whether it is the National Forest Management Act.
We are talking about what, 10,000 plus acres of I think
critical importance to all parties involved, and a public
interest that has to be addressed here. What it appears might
be happening--and I say this with some trepidation--is that
this legislation would convert the area into a super-
wilderness, one where the ability of a President to approve
water development, transmission lines, and possible roads and
overriding public needs are taken away.
Now, clearly in a wilderness area I can understand that to
a point of degree, but at the same time provisions under the
Wilderness Act and the Clean Water Act and other environmental
protections we would not want to ignore, and I think they have
to be resolved as we move forward.
I am worried about the ability of the Forest Service to
deal with the very real problems that were, again, spoken to by
my colleague as it relates to wildfires. New Mexico last I
checked was still burning and probably will be this summer.
Arizona is now on fire. Somehow we have grown to believe that
fire left alone is a natural way of taking care of the
landscape. Under normal settings, certainly not pre-Pueblo but
pre-European man, that might be argued as a valuable and
important tool.
Post-European man's presence on the soil would suggest that
we change the environment in a way for some of that management
to control these fires and manage them accordingly. The fuel
loading is critical. I believe that is an important issue here.
Also, the plague or, if you will, I think it is pronounced
``HAN-tas'' virus, is an issue that I think all of us are a bit
concerned about.
Mr. Chairman, let me ask you to move on with the hearing.
At the same time, I think that a thorough review in the public
arena of this issue and a settlement where all parties were
not--I should say may have been at the table, but did not
agree, that is still in conflict. While public policy does
conflict resolve sometimes, it also creates new conflict. We
would like to hope that in the process we could resolve all of
that.
Thank you.
[The prepared statements of Senator Craig and Senator
Murkowski follow:]
Prepared Statement of Hon. Larry E. Craig, U.S. Senator From Idaho
Chairman Bingaman and Chairman Inouye, I appreciate the opportunity
to come together in a joint hearing and learn more about this land
claim, it's Settlement Agreement, the Management Plan and S. 2018. I
look forward to hearing from the various witnesses who have been
invited to help us better understand the intricacies of this
legislation.
Normally, legislation such as this, to resolve a local land
dispute, would draw very little attention. Given the relatively unique
solutions proposed in this legislation and its potential to both help
resolve other federal land disputes, as well as perhaps solicit new
land disputes, expect this hearing will be the beginning of a
discussion that will be interesting and at times challenging.
I think that all parties to this dispute, the Pueblo of Sandia, the
Tram Company, the Forest Service and the Department of the Interior, as
well as those affected parties who did not sign the Settlement
Agreement, and Congress are all going to have to be flexible and
stretch to find a solution that is fair and equitable to all involved.
I am interested in learning how it is that a claim stemming from
1859, or earlier, was not resolved by The Indian Claims Commission
between 1946 and 1978. I understand that several of the witnesses here
today can help us better understand that. I am also quite frankly
concerned about the number of tribes that lost claims in the Indian
Claims Commission process might react to this legislation.
Like several other Senators here today, I have concerns about some
of the process questions. I am curious how the elimination of FLPMA and
NFMA in this 10,000 acre area meets the commitments Congress made to
the American Public to empower them to help shape federal land
management and policy.
While I understand how difficult it is to gain settlement
agreements, I think we have a fundamental responsibility to ensure all
potentially affected parties to these agreements are protected. I am
told we have a number of witnesses here today that did not sign the
agreement and I am sure they will help us understand why, as well as
what we need to do in this legislation to protect their rights.
I am troubled by the inconsistencies between the proposed
Management Plan and the Settlement Agreement for this area, both of
which will be tiered to the legislation. I wonder if we wouldn't be
better off simply writing the important provisions of these documents
into a longer bill to eliminate some of the inconsistencies.
I also note, with some trepidation, that this legislation would
convert this Area into a ``super-wilderness'', one where the ability of
the President to approve water development, transmission lines, and
possibly roads for an overriding public need has been taken away. If we
are willing to legislate changes to the Wilderness Act in S. 2018, what
other provisions of the Wilderness Act, the Clean Water Act, or other
environmental protections will we want to ignore to help resolve other
local land management issues?
I worry about the ability of the Forest Service to deal with the
very real problems such as wildfire or endemic diseases such as the
Plague and the Hantavirus in relation to some of the limitations in
this legislation. For instance, S. 2018 includes a provision in the
management plan that indicates that a fire management plan must be
developed, but provides the Pueblo of Sandia the ability to veto new
activities--is this a conflict?
Likewise, the documents suggest the existence of both the Plague
and the Hantavirus, but include provisions that require the agency to
allow the Pueblo of Sandia a full right of access to the area to carry-
out both cultural and traditional activities. In the event of an
outbreak of either of these deadly endemic diseases will federal land
managers have the ability to enforce a full closure of the area to keep
all people out of the area until the problem subsides? If not and the
Pueblo insist on exercising their valid right of access--will the
Federal Government be liable if a Tribal member contracts either of
these diseases?
Finally, Mr. Chairman, I need to know more about the provisions
that give the Pueblo of Sandia a right of claim, as if they held the
title to this land, to demand payment from the Federal Government if
Congress, the Forest Service, or others change the management of this
area in the future? How much is that liability? And how do we defend
encumbering the generations who follow us when we have no idea what the
future issues and problems might be in this area?
I apologize for the length of this statement, Mr. Chairman, but I
hope you understand that this is not a simple land claim, and S. 2018
is not a simple solution. I trust each of our witnesses today will
provide us testimony that helps us understand the issues and provides
us with suggestions that will help us resolve this claim in the most
fair and equitable means possible.
______
Prepared Statement of Hon. Frank H. Murkowski, U.S. Senator
From Alaska
Chairman Bingaman and Chairman Inouye, I am pleased that you have
called this hearing. As a member of both the Indian Affairs Committee
and the Energy and Natural Resource Committee this legislation is both
interesting, innovative, and I might add perhaps a bit controversial.
To the extent that we can find a resolution to this land claim that
satisfies both the Pueblo of Sandia and the legitimate needs of the
American Public, I am interested in working with you on this
legislation.
I am quite interested in the provisions that provide a direct role
for tribal and community leaders federal land management. In Alaska we
have a strong desire to help our people have more of a say in how
federal land management is carried out. I see potential opportunity to
use some of the provisions in S. 2018 as a model to help resolve other
potential Native claims and concerns with federal land management in
Alaska.
Having said that, I am troubled by a number of issues related to
this legislation. For example, the back and forth history of
Solicitor's Opinions from the Department of the Interior and the fact
that Solicitor Leshy's opinion was signed during the 23rd hour and 59th
minute of the Clinton Administration. I hope he will help us understand
both the content and the timing of his January 19, 2001 opinion.
I am also troubled by tiering a Settlement Agreement and Management
Plan that was developed outside the normal NMFA and NEPA processes. I
am concerned because it was not signed by all affected and interested
parties to this dispute and legislation. I am told we will hear from
several of those parties today and I look forward to hearing their
testimony.
I also wonder about doing away with the 4(d)(4) provision of the
Wilderness Act in this area and if this will open a floodgate of other
proposals from which to pick and choose which provisions of which laws
to live by on other National Forests.
Finally, I believe we must carefully consider the provision of this
proposal that would convey a property right, compensable by the Federal
Government, to the Pueblo of Sandia if some future Congress or
Administration changes the management of this area.
I do not want to foreclose any of these options, because a great
many of my constituents in Alaska would have benefitted had the federal
government been forced to deal with them. I particularly mindful of how
Congress ignored the effect on local industries and people in
restricting the use of the Tongass. We now have the curious situation
that there is more firewood harvested in New York than all the
harvesting on the Tongass.
Many of the native villages and corporations would like to have a
larger say in the absentee management of other federal lands in Alaska.
So there is much fodder in this proposal and this may be a useful
vehicle to improve the management situation in Alaska.
Thank you Mr. Chairman. I look forward to the testimony.
Chairman Inouye. Thank you very much.
Mr. Chairman, it is all yours.
Chairman Bingaman. Well, how far have you gotten here, Mr.
Chairman?
Chairman Inouye. Just the opening remarks.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR
FROM NEW MEXICO
Chairman Bingaman. I just parachuted in.
Let me say a couple of things. First, thank you for
agreeing to do the joint hearing with us. This is a very
important issue in our State. I know we have various witnesses
here from New Mexico and I very much appreciate them coming all
this distance.
I want to also quickly thank the Forest Service, employees
of the Forest Service out in our State, for the hard work that
they put into trying to move this process forward. I think
probably others have commented on the fact that this is a very
complicated set of issues and there is not an easy resolution
to it. If there were, I am sure we would have found it long ago
and put the issue to rest.
I introduced S. 2018 hoping that we could find a
legislative solution so that the litigation could stop. That
was my hope. I do not know if that will be possible or not, but
my thought was that I was taught when I was practicing law that
sometimes a settlement is better than proceeding with more and
more litigation all the time. It seemed to me that a lot of
good work had gone into trying to come up with a settlement,
not that all parties had agreed to it, but that a lot of good
work had gone into that and we should take that and try to
build on it, improve upon it, and get as many people to sign
onto it as possible.
So that was the effort behind this legislation. I hope that
that is the effect it has. I think we all are well aware of the
Senate schedule and the schedule of the Congress. We are
hurtling through this second year of this session or this
Congress, and if we are not able to get agreement on something
to move ahead here in the near future it is going to be
impossible to get anything enacted through the House and Senate
before the Congress adjourns this fall.
I believe in November it would be expected at that point
that litigation would commence again if nothing has been done
by the Congress.
I also should thank Solicitor Myers for going to New Mexico
as he did this last week. I know he spent a couple days out
there talking to the various parties. I very much appreciate
all the effort he has put into it. My own staff has worked hard
on the issue as well and I appreciate that very much.
So thank you and I will sit and listen to some of the
testimony. Thank you.
[The prepared statement of Senator Bingaman follows:]
Prepared Statement of Hon. Jeff Bingaman, U.S. Senator
From New Mexico
We are here today to receive testimony on a bill I recently
introduced, S. 2018--the T'uf Shur Bien Preservation Trust Area Act.
I would like to welcome the witnesses from New Mexico who have
traveled a long way to be here today: Governor Paisano; Bernalillo
County Commissioner Cummins; Edward Sullivan; Guy Riordan; Walter
Stern; Anita Miller; and Dr. Stanley Hordes.
Let me take a moment to thank employees of the Forest Service,
particularly those working in New Mexico. I think the Forest Service
has worked hard to help this process move forward. They have been
accommodating to a great many different points of view. I also would
like to thank Solicitor Myers for visiting the area last week and
taking the time to meet with several of my constituents who are
involved in this matter.
To state the obvious, this is a very complicated situation. The
matter has been litigated for a number of years and I assume that if
Congress does not act during this session, it will continue to be
litigated for the foreseeable future.
I introduced S. 2018 and scheduled this hearing in order to seek a
solution acceptable to the parties rather than one imposed by the
courts. Here, all parties have the same overall objective--namely, to
preserve the land at issue in an undeveloped state and continue public
access in perpetuity. Therefore, it certainly seems possible that a
solution should be within reach.
However, I believe we all need to be realistic as to what may or
may not be possible prior to the expiration date of the Settlement
Agreement. Given that very few days remain in this Session of Congress,
it will be challenging enough to enact a bill that all parties and the
delegation support. Opposition will make enactment impossible.
S. 2018 relies on a settlement as the basis for resolving the
Pueblo's land claim. I believe this is not only the appropriate way to
resolve this matter, but also the only realistic way by which it will
be resolved. I recognize, though, that concerns about the settlement
were expressed by parties who did not participate in the final stages
of the negotiations. I worked with those parties to address their
concerns while still maintaining the benefits secured by the parties in
the Settlement Agreement.
I know that some are interested in pursuing new approaches for
resolving this claim. It seems to me, however, that any significant new
approach will be difficult to assemble with requisite support during
the time that remains this Session. Thus, I hope that those suggesting
alternative approaches will be able to provide realistic proposals for
resolving the claim. I am open to changes to the bill so long as they
are widely supported and help bring this matter to a close.
I look forward to all of the witnesses' testimony and hope that
through an active dialogue, we can help alleviate any remaining
concerns with the general approach taken in the settlement and S. 2018.
Chairman Inouye. Do you want to take over?
Chairman Bingaman. Why don't you go ahead, Mr. Chairman.
You are doing such a good job.
Chairman Inouye. Well, we are honored to have with us the
Solicitor of the Department of the Interior, the Honorable
William Myers III.
Mr. Solicitor.
STATEMENT OF WILLIAM G. MYERS III, SOLICITOR,
DEPARTMENT OF THE INTERIOR
Mr. Myers. Thank you, Mr. Chairman and Mr. Chairman. It is
a pleasure to be here before the committees today to testify on
S. 2018. I will make a few remarks. I ask that my full
statement be entered into the record.
Chairman Inouye. Without objection, so ordered.
Mr. Myers. I will be very quick so that you can hear from
my colleagues at the table and ask us any questions you might
have. But as has been noted, S. 2018 would implement with some
modifications the agreement of compromise and settlement that
was signed by the Pueblo, the Sandia Peak Tram Company, and the
United States on behalf of the Departments of Justice,
Agriculture, and Interior.
The bill and the land dispute both affect approximately
10,000 acres of the Cibola National Forest. The administration
supports a legislative solution and is willing to work with the
New Mexico delegation and members of the committee to that end.
I say in my testimony that I did, as Chairman Bingaman
mentioned, have the opportunity to travel to the site last week
after doing some of my homework at my desk on this issue. I do
not pretend to suggest that I know all there is to know about
this. I am learning a great deal even today.
But I did go out. I talked to various interested parties in
my office in Albuquerque. That included the Forest Service, the
tram company, the city of Albuquerque, Bernalillo County
council members, the Sandia Mountain Coalition, members of the
Sandia Heights Home Owners Association, and of course the
Pueblo of Sandia itself.
I also took the opportunity to go by myself up to the
Pueblo and walk the Pueblo, get a view of the crest and of the
western slopes ahead of the crest, and also to go into some of
the subdivisions that are, as depicted on the diorama that you
have, hidden between what is the current boundary of the Pueblo
and the crest of the Sandia Mountain. I did that because I
wanted to see it for myself, to see what perhaps Mr. Clements
the surveyor saw many, many decades ago, and to get a sense of
the landscape and of the issues. It was a very educational
process for me.
Out of that I came away with a distinct impression that all
of the parties are tired of litigation, either because of the
time or the expense or both, that they would like to resolve
this problem and go about living on and enjoying the land that
we are discussing, and that they have little confidence, I
suppose I should say, in the administrative process, and I
expect that is a result of the fact that there was an opinion
by one of my predecessors, Solicitor Tarr, in 1988; there was a
second opinion by another predecessor, Solicitor Leshy. Those
two opinions did not, obviously, agree, and now I hold the
office and if I am called upon to make an opinion I suspect I
will have a third opinion that will fall somewhere in the
parameters of those two, but will not be the same as either of
them.
So the parties are wary of the administrative process. They
have already spent time and money in the judicial process. That
leaves one branch of government, which of course is yours. So
it makes sense that we are here today to discuss with you and
for you to hear from other interested parties the issues that
revolve around these matters.
I think I will simply stop there. My testimony provides
some specific instances in which I think the legislation could
be changed to clarify comments that I heard while I was in New
Mexico and points that I came up with in my own review of the
legislation as to where changes could be made. I will let those
comments stand and speak for themselves. They are in the record
now.
I think, Mr. Chairman, with your indulgence, I will stop
here and you may hear from my colleagues, or if you would like
you could ask me questions.
[The prepared statement of Mr. Myers follows:]
Prepared Statement of William G. Myers III, Solicitor,
Department of the Interior
introduction
Mr. Chairman and members of the Committees, I appreciate the
opportunity to be here today. I am William G. Myers III, Solicitor for
the Department of the Interior. It is my pleasure to be here today to
testify on behalf of the Department on S. 2018, a bill to create the
T'uf Shur Bien Preservation Trust Area (``Area'') within the Cibola
National Forest. S. 2018 would implement, with some modifications, the
Agreement of Compromise and Settlement signed by the Pueblo of Sandia
(``Pueblo''), the Sandia Peak Tram Company, and the United States on
behalf of the Departments of Agriculture, Justice, and the Interior on
April 4, 2000. The questions of ownership and use of approximately
10,000 acres in the Cibola National Forest have been the subject of
debate for nearly 20 years in both the judicial and executive branches
of government and among the affected parties. The Administration
supports a legislative solution and is willing to work with the New
Mexico delegation and members of the Committees to that end.
I have reviewed relevant portions of the record in both the
Executive Branch and the Judicial Branch. I have recently taken the
opportunity to look at the Area from both the ground and in the air and
I have talked to representatives of the parties most affected by the
legislative proposal. I quickly concluded what is perhaps obvious to
the Committees; all sides are tired of litigating this matter and the
non-federal parties are concerned about the uncertainty of the
administrative process should the settlement agreement lapse in
November 2002. I found broad support for a legislative solution. The
following comments are offered in a spirit of reasonable compromise
toward finality of the dispute.
background
The Pueblo of Sandia claims the western face of Sandia Mountain,
which is part of the Sandia Mountain Wilderness to the northeast from
Albuquerque, New Mexico. The Pueblo of Sandia's claim is based on a
1748 land grant from Spain to the Pueblo and an 1858 Act of Congress
that confirmed the grant. The 1858 Act directed that a survey of the
grant be made and a patent issued to the Pueblo. The survey was
conducted in 1859 and a patent was issued in 1864. The Pueblo claims
that approximately 10,000 acres were mistakenly excluded from the grant
due to a survey error. This area is now part of the Cibola National
Forest and the Sandia Mountain Wilderness and extends generally from
the foothills to the crest of the main ridge of the Sandia Mountains.
In 1983, the Pueblo first approached the Department requesting a
resurvey of their Spanish land grant and the issuance of a new patent
claiming the eastern boundary of the grant had been incorrectly
surveyed in 1859. In 1988, Solicitor Ralph Tarr issued an Opinion which
found that no resurvey was warranted.
In 1994, the Pueblo sued the Department of the Interior and the
Department of Agriculture, claiming that the Department of the
Interior's refusal to resurvey the grant was arbitrary and capricious.
The United States District Court for the District of Columbia vacated
the Tarr Opinion and remanded the issue to the Department in 1998. An
appeal was filed, but proceedings were stayed for over a year pending
mediation efforts among the Pueblo, the Sandia Peak Tram Company, the
United States, the City of Albuquerque, the County of Bernalillo, and
the Sandia Mountain Coalition. These mediation efforts resulted in the
April 2000 Agreement of Compromise and Settlement, which was signed by
the Pueblo, the Sandia Peak Tram Company, and the United States
(represented by the Departments of Agriculture, Interior, and Justice).
In November 2000 the Court of Appeals of the District of Columbia
dismissed the appeal on the grounds that it lacked jurisdiction because
the District Court's decision was not a final decision.
On January 19, 2001, Solicitor John Leshy issued a new opinion
which concluded that the 1859 survey of the Pueblo of Sandia's grant
was erroneous. Mr. Leshy determined that a resurvey was warranted, but
recommended that the Department conduct a resurvey of the grant only if
the April 2000 Agreement of Compromise and Settlement was not ratified
by Congress. The Agreement binds the parties until November 15, 2002,
and will become permanent only through the enactment of legislation.
s. 2018
Pursuant to the terms of S. 2018, Congress would authorize the
establishment of the Area within the Cibola National Forest and the
Sandia Mountain Wilderness. Title to the Area would remain in the
United States while granting unrestricted access to the Area to the
members of the Pueblo or the members of any other federally recognized
Indian tribe authorized by the Pueblo to enter the Area for traditional
and cultural uses. In addition, the Sandia Mountain Wilderness would be
preserved in perpetuity as part of the Cibola National Forest and
continue to be administered by the Secretary of Agriculture though the
Forest Service. Gaming, mineral, or timber production in the Area would
be prohibited under the bill.
Under S. 2018, the Pueblo, as well as Bernalillo and Sandoval
Counties, would have the right to give consent or withhold consent to
new uses of the Area. The Pueblo would also be given the right to
consultation regarding modified uses and would have exclusive authority
to administer access to the Area for traditional and cultural uses by
its members or the members of any other federally recognized Indian
tribe.
The legislation would also extinguish the Pueblo's claim of title
to the Area and would therefore clear the titles of private landowners
in the Area. S. 2018 would grant the Pueblo the right to compensation,
as if it were an owner in fee, if a subsequent act of Congress were to
diminish the wilderness and National Forest character of the Area.
S. 2018 grants irrevocable rights of way in perpetuity to the
County of Bernalillo for roads in the Sandia Heights South Subdivision
and Juan Tabo Canyon and the Crest Spur Trail (which crosses the La Luz
tract). Modification or expansion of the rights of way for those roads
would be subject to the Pueblo's written consent. The Secretary of the
Interior would be required to grant irrevocable rights of way in
perpetuity across Pueblo lands in existing utility corridors for
utilities providing services to the private landowners in the
subdivisions on Sandia Mountain.
The aerial tramway, along with the crest facilities on Sandia
Mountain, are excluded from the Area under the bill. Thus, the Pueblo
would not have any civil, criminal, or administrative jurisdiction over
the Area. However, the La Luz tract, which is owned by the Pueblo,
would be transferred to the United States and held in trust for the
Pueblo, subject to all limitations on use pertaining to the Area.
The bill would not provide for the United States to take into trust
the property owned by the Pueblo in the Evergreen Hills subdivision,
but instead directs the Secretary of Agriculture to convey NFS land
within the subdivision to the Pueblo.
conclusion
The United States, including the Department of the Interior, is
bound by the existing Settlement Agreement until November 2002. It is
the Department's view that the best way, and possibly the only way, to
resolve this longstanding dispute is through legislation. To that end,
I have attached some detailed comments to my testimony.
The Department looks forward to working with you, Mr. Chairman, the
New Mexico delegation, and the other members of the Committees on this
legislation. This concludes my testimony. I would be happy to answer
any questions the Committees may have.
Attachment
In addition to our testimony, we are providing the following
detailed comments:
Section 4(c)(3)
Bernalillo and Sandoval Counties are provided the right to consent
or withhold consent to new uses in the Area. This provision parallels
the right given to the Pueblo in Section 5(a)(3)(i). The Administration
supports local governmental involvement in federal land management
decisions. It is not clear, however, that either of the two counties
would exercise this authority if given to them. If the authority to
veto new uses remains in the bill, those uses should be defined with
particularity in the legislation so that both the federal agency and
the party exercising the right have some direction from Congress as to
what is intended. A definition of new uses is contained in the
Management Plan which is an attachment to the Settlement Agreement, and
this would be a good place to start.
Section 12
The confusion and concern arising out of the lack of a definition
of new uses, as discussed above, illustrate the concerns generally with
Section 12. That section ratifies and confirms the Settlement Agreement
and Management Plan. The Administration believes that it would be
better to legislate all necessary provisions of the Settlement
Agreement and the Management Plan and forego incorporating these
documents by reference. Otherwise, the potential for protracted
litigation could arise after good-faith efforts to reconcile the law,
the Agreement, and the Plan fail.
Section 4(g)
The last sentence of this section could be clarified if rewritten
to read, ``Establishment of the Area does not in any way modify the
existing boundary of the Pueblo grant as depicted on the map defined at
Section 3(g).'' This will eliminate any confusion as to the definition
of the ``boundary'' which has been at the heart of the dispute for
nearly twenty years.
Section 7(b)(3)(B)
This section is one of several sections that uses the phrase
``traditional and cultural.'' Further definition of this phrase would
be useful.
Section 14(d)
The first sentence regarding land acquisition is ambiguous because
it could be read to encompass, for example, the La Luz tract, as ``any
other privately held lands within the Area.'' Under Section 8(e), the
La Luz tract cannot be acquired by the Secretary of Agriculture because
this tract is transferred to the United States to be held in trust for
the Pueblo and to be administered by the Secretary of the Interior.
Other Comments
The Committee should consider a new section that would state that,
except as provided by Section 5(c)(1), nothing shall be construed in
this Act as a legislative exercise of the power of eminent domain.
Some parties have indicated that use of the term ``Trust'' in the
title of the bill raises the question of whether the entire Area is to
be held in trust by the United States, similar to the La Luz tract in
Section 8(e). This clearly is not the intent, as explained in the
Chairman's remarks at page S1940 of the March 14, 2002, Congressional
Record. However, to address any concerns in this regard, either
``Trust'' should be removed from the title and similar references in
the bill or the Chairman's explanation should be incorporated into the
bill.
Chairman Inouye. Thank you very much, Mr. Solicitor.
Now we are pleased to have the Honorable Tom Sansonetti,
the Assistant Attorney General.
Mr. Sansonetti.
STATEMENT OF THOMAS L. SANSONETTI, ASSISTANT ATTORNEY GENERAL
FOR ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF JUSTICE
Mr. Sansonetti. Mr. Chairman, other members of the
committees: Thank you for the invitation today. I think I too
will just simply ask that my entire statement as submitted to
the committee be entered into the record.
Chairman Inouye. Without objection, it is be so ordered.
Mr. Sansonetti. I think I want to go ahead and just focus
my comments here on the involvement of the Department of
Justice in the process to date. The Pueblo first contacted the
Department of the Interior in 1983, contending that the 1859
survey had mistakenly set the wrong boundary, excluding about
10,000 acres, and that the 1864 patent was therefore erroneous.
The Pueblo requested a resurvey of their land grant and the
issuance of a new patent designating the true eastern boundary
as the crest of the mountain.
In December 1988, the Department of the Interior Solicitor
Ralph Tarr issued an opinion, in which Secretary Donald Hodel
concurred, denying the Pueblo's claim that the eastern boundary
of the grant should be resurveyed and located along the crest
of the Sandia Mountain. It was at that time the Department of
Justice got involved because in 1994 the Pueblo filed an action
against the Secretaries of the Interior and Agriculture in the
U.S. District Court for the District of Columbia. The Pueblo
sought an injunction requiring the Department of the Interior
to correct the allegedly erroneous boundary. Of course, the
Department of Justice defended the Secretaries of the Interior
and Agriculture.
I will not go through all the details of the litigation.
They are discussed in my written testimony. But I will note
that, in addition to the United States and the Pueblo, other
parties to the litigation included an association of land
owners living in subdivisions within the boundaries of the
national forest, and the county of Bernalillo, the city of
Albuquerque, and Sandia Peak Tram Company were also involved as
amicus curiae.
In 1998, the parties in the case decided to try to resolve
it without further litigation. Negotiations ensued and 2 years
ago, April 2000, a settlement agreement was signed by the
predecessors of the three individuals that are here today: the
Assistant Attorney General at Justice, the Solicitor at
Interior, and the General Counsel at the Department of
Agriculture. It was also entered into by the Pueblo of Sandia
and the Sandia Peak Tram Company. The other parties did not
sign the settlement agreement.
Now, this agreement, the settlement agreement, would settle
the Pueblo's land claim suit upon ratification by an act of
Congress. The settlement addresses many other important issues
pertaining to the management of relevant portions of the Cibola
National Forest, as well as questions of access across Pueblo
lands to privately owned areas in the vicinity of the claim
area itself.
So at the present time the Department of Justice is on the
sideline. There is no litigation ongoing. The appeals taken
from the adverse district court action to the Circuit Court of
Appeals were eventually dismissed. The settlement agreement is
now in place, and obviously if S. 2018 becomes law then that
would settle the claims of the Pueblo.
If not, and I believe the date is November 15, 2002, that
the settlement agreement by its own terms expires, then the
settlement agreement goes poof into thin air and the action
goes back to the Department of the Interior, at which point the
question as to the resurvey of the boundary would have to be
undertaken.
That is the role of the Department of Justice as it is
maintained at this time. I look forward to any questions that
you may have.
[The prepared statement of Mr. Sansonetti follows:]
Prepared Statement of Thomas Sansonetti, Assistant Attorney General for
Environment and Natural Resources, Department of Justice
Mr. Chairman and members of the Committee, I am Tom Sansonetti,
Assistant Attorney General for the Environment and Natural Resources
Division of the Department of Justice. Thank for you for the
opportunity to testify before you today on S. 2018, Senator Bingaman's
bill that would create the T'uf Shur Bien Preservation Trust Area
within the Cibola National Forest and attempt to effectuate the
settlement agreement entered into by the Pueblo of Sandia, the United
States, and the Sandia Peak Tram Company on April 4, 2000. This matter
is of great importance to the Pueblo of Sandia, the people of the State
of New Mexico, and the federal government. In my testimony today, I
would like to give you some background on the history of the Pueblo's
land claim and briefly discuss the settlement agreement.
background
The underlying dispute giving rise to the settlement agreement and
S. 2018 addresses the Pueblo's claim to a 10,000 acre tract of land,
now administered by the U.S. Forest Service as part of the Sandia
Mountain Wilderness and Cibola National Forest. The Pueblo believes
this tract of land was erroneously excluded from the government's
recognition of the Pueblo's ancient Spanish land grant due to an
inaccurate survey conducted by the Department of the Interior in 1859.
The Pueblo is located on the east side of the Rio Grande north of
Albuquerque, New Mexico. In 1748, the Spanish colonial government
granted a parcel of land to the Pueblo. An 1858 Act of Congress
confirmed the grant and directed the Commissioner of the Land Office to
conduct a survey to designate the exact boundaries of the parcel. An
1859 survey of the Pueblo Grant, known as the Clements survey, showed
the eastern boundary along the top of a foothill on the western slope
of Sandia Mountain, rather than on the crest of the mountain. In l864,
President Abraham Lincoln issued a patent to the Pueblo which adopted
the metes-and-bounds description of the 1859 survey.
The Pueblo first contacted the Department of the Interior in 1983,
contending that the 1859 survey had mistakenly set the wrong boundary,
excluding about 10,000 acres, and that the 1864 patent was therefore
erroneous. The Pueblo requested a resurvey of their land grant and the
issuance of a new patent designating the true eastern boundary as the
crest of the mountain. In December 1988, the Department of the Interior
Solicitor Ralph Tarr issued an Opinion, in which Secretary Donald Hodel
concurred, denying the Pueblo's claim that the eastern boundary of the
grant should be resurveyed and located along the crest of the Sandia
Mountain.
In 1994, the Pueblo filed an action against the Secretaries of the
Interior and Agriculture in the U.S. District Court for the District of
Columbia. The Pueblo sought an injunction requiring the Department of
the Interior to correct the allegedly erroneous boundary.
In January 1995, several individual landowners and the Sandia
Mountain Coalition, an unincorporated association of landowners living
in subdivisions within the boundaries of the National Forest, moved for
and were granted status as intervenor-defendants in the case. Two
months later, the Pueblo amended its complaint to expressly disclaim
any right, title, or interest in land held in private ownership within
the disputed tract. The County of Bernalillo was also granted
intervenor-defendant status, and the City of Albuquerque and the Sandia
Peak Tram Company became involved as amicus curiae.
In July 1998, the district court issued an Opinion and Order
setting aside the Tarr Opinion and remanding the matter to the
Department of the Interior for further proceedings. The court found
that the Department's decision not to resurvey the grant boundary was
arbitrary and capricious because it accorded insufficient weight to the
canon of construction that ambiguities should be construed in favor of
Indians and because it over-emphasized the presumption of survey
regularity.
Thereafter, in August and September 1998, the United States and the
intervenor-defendants filed notices of appeal from the district court's
decision with the D.C. Circuit. However, after the appeals were filed,
all of the parties involved in the litigation decided to engage in a
cooperative effort to resolve the case without further litigation. In
October 1998, the D.C. Circuit granted a motion to hold the appeals in
abeyance pending these settlement negotiations.
Negotiations began in earnest in December 1998, when the federal
agencies, and the Pueblo, County, Coalition, City, and Tram
representatives inaugurated a formal mediation process with the
assistance of a third-party mediator in New Mexico. Despite progress
being made by the named parties in the lawsuit over the course of
several months, in August 1999 the intervenor-defendants and the City
of Albuquerque withdrew from the mediation process. Nonetheless, the
named parties in the litigation--the Pueblo and the federal agencies--
along with the Tram Company, continued the negotiation process which
eventually produced a settlement agreement signed by the parties on
April 4, 2000. In November of that year, the appeal was dismissed by
the U.S. Court of Appeals for the District of Columbia Circuit for lack
of appellate jurisdiction. This decision granted a conditional motion
by the United States to dismiss its appeal, contingent upon the D.C.
Circuit actually ruling that jurisdiction would not exist over an
appeal being pressed solely by the intervenor-defendants.
Also in November 2000, the Pueblo renewed its petition to resurvey
the boundary along the crest of the mountain, reiterating their lack of
interest in the inholdings. In addition, the County of Bernalillo and
the Sandia Mountain Coalition contended that the Clements survey was
erroneous in that the top of the foothill on the western slope of
Sandia Mountain created too large of an area for the Pueblo. In
response to these requests, Interior Solicitor John Leshy conducted
another review, and on January 19, 2001, issued a new opinion that
reconsidered the Tarr Opinion's conclusion. Solicitor Leshy concluded
that the evidence showed that the Clements survey of the eastern
boundary of the Pueblo's land grant was erroneous and should be set
aside and, if necessary, a resurvey should be conducted. The Opinion
acknowledged the settlement of the Pueblo's claim, which would obviate
the need for a resurvey, and put in abeyance any implementation of the
Opinion unless and until the Congress failed to pass legislation
ratifying the settlement by November 15, 2002.
settlement agreement
The Agreement of Compromise and Settlement among the Pueblo of
Sandia, the Sandia Peak Tram Company, and the United States on behalf
of the Departments of the Interior and Agriculture, would settle the
Pueblo's land claim suit upon ratification by an Act of Congress. The
Settlement addresses many other important issues pertaining to the
management of relevant portions of the Cibola National Forest, as well
as questions of access across Pueblo lands to privately owned areas in
the vicinity of the claim area.
Some of the highlights of the settlement are as follows:
Creation of the T'uf Shur Bien Preservation Trust Area
The claim area would be renamed the T'uf Shur Bien (a Tiwa
term meaning ``Green Reed Mountain'') Preservation Trust Area
and would remain part of the Sandia Mountain Wilderness and the
Cibola National Forest.
The United States would retain title to the Area.
The Area would be established for the following purposes: to
recognize and protect the Pueblo's rights and interests in and
to the Area; to preserve in perpetuity the wilderness and
National Forest character of the Area; and to respect and
assure the public's use and enjoyment of the Area.
Administration of the Area by the Forest Service
The Secretary of Agriculture would continue to administer
the Area as wilderness and National Forest under the Wilderness
Act, most federal wildlife-protection laws (including the
Endangered Species Act), other laws applicable to the National
Forest System, and an Area-specific management plan.
Statutes (including their associated regulations)
administered by the Forest Service, other than the Wilderness
Act and applicable federal wildlife protection laws, do not
apply to Pueblo traditional and cultural uses.
Pueblo Rights
The Pueblo's right of access to the Area for traditional and
cultural uses, except for regulation by the Wilderness Act and
applicable federal wildlife protection laws, as described
above, would be compensable if violated.
The Pueblo would have a compensable interest in the
perpetual preservation of the wilderness and National Forest
character of the Area. If Congress ever impaired this interest
by authorizing uses, such as commercial mineral or timber
production, that are banned from the Area by the ratifying
legislation, the Pueblo again would be compensated as though it
held a fee-title interest in the affected portion of the Area.
The Pueblo would have specified, non-compensable rights to
participate in the management of the Area under the management
plan.
The Pueblo would have exclusive authority to administer
access to the Area by other tribes for traditional and cultural
uses.
Rights of Way
The private landowners, the general public, and the Forest
Service must cross Pueblo land to reach the subdivisions and
the claim area. As part of the settlement, the Pueblo would
grant perpetual rights of way to the County and the Forest
Service for roads, trails, and utilities across Pueblo lands
adjacent to the Area.
Jurisdiction
The ratifying legislation would provide a scheme for the
exercise of governmental jurisdiction over the Area,
recognizing roles for the United States, the State of New
Mexico, and the Pueblo.
Extinguishment of Claims
The settlement would provide for the comprehensive and
permanent extinguishment of the Pueblo's claims to: (a) lands
within the Area; (b) the subdivisions and other privately owned
tracts; (c) the lands described in the Tram's special use
permit; and (d) all crest facilities and developments such as
the electronic site. The ratifying legislation would clear all
titles, both of the United States and the homeowners.
Withdrawal Option
The settlement provides that either the Pueblo or the United
States may withdraw from the Settlement Agreement if either
House of Congress passes ratifying legislation that is deemed
inconsistent with the terms of the Settlement Agreement in a
manner that materially prejudices their individual interests.
conclusion
The parties in this matter expended a great deal of time and effort
to reach agreement and to produce a document which resolves many
complex issues. The Administration supports a legislative solution and
is willing to work with the New Mexico delegation and the members of
the Committees to achieve that end.
This concludes my testimony. Mr. Chairman, I look forward to
working with you and other members of the Committees on this
legislation and would be pleased to answer any questions you may have.
Chairman Inouye. I thank you very much, Mr. Sansonetti.
Now may I please call upon the General Counsel of the
Department of Agriculture, the Honorable Nancy Bryson.
STATEMENT OF NANCY BRYSON, GENERAL COUNSEL,
DEPARTMENT OF AGRICULTURE
Ms. Bryson. Thank you, Mr. Chairman. Thank you for the
opportunity to testify today on S. 2018. This bill, as we have
heard, proposes to resolve the longstanding land title dispute
of the Pueblo of Sandia with the Federal Government concerning
rights arising under a 1748 land grant from the King of Spain,
subsequently recognized by Congress.
The administration supports the legislative solution and is
willing to work with the New Mexico delegation and members of
the committee to achieve that end. I have submitted a statement
and I would request that it be incorporated in the record.
Chairman Inouye. Without objection.
Ms. Bryson. Briefly, our position at USDA is that with some
modifications S. 2018 essentially implements the 2000
settlement agreement. We have noted in your testimony several
areas where we think it goes beyond the settlement agreement,
where the provisions of the bill are unclear to us, or where S.
2018 could improve on the efforts made to date.
For purposes here, I will just note the three areas in the
bill which we think go beyond the settlement agreement. First,
there is a provision for a mandated land exchange within a
certain time. The settlement agreement doesn't include such a
provision and we do not think one is necessary because there
are existing land exchange mechanisms which can be used.
Second, the bill adds management rights for Sandoval and
Bernalillo Counties. We do not disagree with this. The
Department of Agriculture strongly supports involving tribal,
State, and local governments in land management decisions that
affect them. However, we think if this change is in the final
legislation there will be some changes that are necessary in
the management plan and the settlement agreement.
In addition, the bill requires the Department to do a
survey of the boundary area within 12 months. This is a new
responsibility. It creates significant issues for the
Department and we would like to work with the committee on
those.
I would just like to repeat in closing that the Department
of Agriculture would very much like to work with the committee
to finally resolve this matter. We would like to find a
resolution that addresses the identified concerns, maintains
the character and beauty of the Sandia Mountain wilderness, and
protects and preserves the cultural and religious values of the
area.
That concludes my statement. I would be happy to answer any
questions.
[The prepared statement of Ms. Bryson follows:]
Prepared Statement of Nancy Bryson, General Counsel,
Department of Agriculture
Mr. Chairman and members of the committees: My name is Nancy
Bryson, General Counsel, Department of Agriculture. Thank you for the
opportunity to testify today on S. 2018, the ``T'uf Shur Bien
Preservation Trust Area Act.'' This bill proposes to resolve the
longstanding land title dispute of the Pueblo of Sandia with the
Federal Government concerning rights arising under a 1748 land grant
from the King of Spain and subsequently recognized by Congress. The
Administration supports a legislative solution and is willing to work
with the New Mexico delegation, and Members of the Committees to
achieve that end.
The T'uf Shur Bien Preservation Trust Area, as designated by S.
2018, would consist of approximately 10,000 acres within the Cibola
National Forest. Located a few miles northeast of Albuquerque, the
claim area lies within both Bernalillo and Sandoval Counties. Much of
the claim area also is within the Sandia Mountain Wilderness designated
by the Congress in the Endangered American Wilderness Act of 1978 (P.L.
95-237). The area is one of natural beauty and solitude, and provides
significant opportunities for public recreation. It also is an area of
religious and cultural significance for Native Americans and others.
This title dispute has been ongoing for almost two decades during
which time there have been opinions regarding title to the land by the
General Counsel of the Department of Agriculture and the Solicitor of
the Department of the Interior, as well as litigation in U.S. District
Court. A decision remanding the matter to the Department of the
Interior was appealed to the D.C. Circuit by the government on
jurisdictional grounds.
Between 1998 and 2000, while the case was pending in the D.C.
Circuit, a mediated effort to settle the Sandia land claim was
undertaken among all parties to the litigation including the Pueblo,
the Federal Government, a coalition of private landowners and
recreation groups, the Sandia Peak Tram Company, Bernalillo County and
the City of Albuquerque. All the parties worked hard in a good faith
effort to resolve this matter, and we commend those efforts.
Ultimately, a Settlement Agreement was reached in April 2000, but only
among the Pueblo, the Sandia Peak Tram Company and the Federal
Government. The City, the County, and the coalition had withdrawn from
the negotiations.
With some modifications, S. 2018 essentially implements the 2000
Settlement Agreement. I will concentrate my remarks primarily in those
areas where S. 2018 goes beyond the Settlement Agreement, where the
provisions of the bill are unclear to us, or where S. 2018 can improve
on the efforts made to date to resolve this dispute.
We see at least three areas in which the bill goes beyond the
settlement based on our review to date. First, there is a provision for
a mandated land exchange within a certain time. The Settlement
Agreement does not include such a provision and we do not think one is
appropriate as existing land exchange mechanisms are available. Second,
the bill adds management rights for Sandoval and Bernalillo Counties.
We do not disagree with this. The Department of Agriculture strongly
supports involving tribal, state, and local governments in land
management decisions that affect them. However, we think the change
does require an expansion of both the Settlement Agreement and the
Management Plan.
In addition, the bill requires the Department to do a survey of the
boundary area within 12 months. This new responsibility creates
significant issues for the Department on which we would like to work
with the Committee.
Our second comment is that it would be very helpful to have the
legislative language expressly incorporate the Settlement Agreement and
Management Plan rather than by reference. Although the United States
generally supports incorporation of such settlements by reference, such
incorporation creates the potential for conflict in this case where the
language of the bill and the Settlement Agreement and Management Plan
conflict. For example, the bill provides that the area will be managed
under laws and regulations applicable to the National Forest System.
These include the National Forest Management Act. The Settlement
Agreement, however, specifically exempts the T'uf Shur Bien
Preservation Trust area from the National Forest Management Act. This
area will not be subject to NFMA, but rather to the procedural and
substantive requirements established in the Settlement Agreement and
Management Plan. The legislation needs to set forth these provisions
very clearly, particularly given the potential for confusing,
overlapping and sometimes conflicting management. The parties have all
expressed their interest in limiting future litigation. We think the
likelihood of this can be enhanced by resolving potential ambiguities
in the legislation itself.
Finally, we believe the language in section 10(c) of the bill,
clarifying that this Act is uniquely suited to resolve the Pueblo's
claim, is a crucial element of any legislative resolution. This
agreement, however, should not be considered precedent for any other
situation involving National Forest System lands.
Although this bill, if enacted, will resolve this particular
dispute, it is important to emphasize that all settlements of Indian
claims, including settlements that involve federal lands, must be
ratified by Congress [pursuant to 25 U.S. C. 177]. Should Congress
decide to delegate settlement authority regarding such claims to
administration officials, however, the land management agency with
jurisdiction over the land should have primary authority in determining
whether the agency's lands would be conveyed as part of the settlement.
We believe that with respect to National Forest System lands,
responsibility should reside in the Department of Agriculture.
The Department of Agriculture would like to work with the Committee
to finally resolve this matter. We would like to find a resolution that
addresses the identified concerns, maintains the character and beauty
of the Sandia Mountain Wilderness, and protects and preserves the
cultural and religious values of the area.
This concludes my statement. I would be happy to answer any
questions.
Chairman Inouye. Thank you very much, Ms. Bryson.
May I begin the questions, if I may. For Solicitor Myers.
In your view, does this bill create an undesirable precedent
for the resolution of other Indian land claims or land
management situations?
Mr. Myers. Mr. Chairman, it creates a precedent in one
sense, in that any time you take action you have created a
precedent because it is something that has gone on before, by
definition. That is a precedent. At the same time, this
particular area and this particular dispute are unique as far
as I can tell. In my brief time in my office, there is no other
like it and I think if there were I would perhaps have heard
about it.
Because of the history of this dispute, going back, if you
will, to 1748 and the grant from the King of Spain forward,
because of the interplay of the parties to date, including of
course the Pueblo, the citizens of the State, and the public at
large that use the area, and the State and local jurisdictions
that have overlapping jurisdiction in the area, because of the
multiple uses that are there, and then overlay on top of that
the wilderness area and the inholdings, you have quite a mix of
cross currents.
So to the extent that you legislate a fix to this and to
the extent that that legislation is very specific--and I would
encourage you to make it very specific--I think that the
precedential value in a legal sense is reduced. I do appreciate
those who are concerned about other pueblos or other tribes or
other non-Indian parties attempting to change administrative
boundaries to effect whatever purpose and goal they might have
in mind, and I think that's a legitimate concern.
But to put a point on it, to the extent that the Congress
in detail specifies the land uses and management of this land I
think that does limit the precedential value.
Chairman Inouye. If I may ask Mr. Sansonetti. Although the
Pueblo of Sandia did not bring any claim under the Indian
Claims Commission Act, would this legislation reopen cases that
were finally adjudicated under that statute?
Mr. Sansonetti. I think not, in the sense that those Indian
tribes that did appear in front of the ICCA received a final
settlement. We have to remember that that commission was set up
for tribes to appeal for a money award, not for the return of
land. In this particular case, obviously the Pueblo are
interested in the land as opposed to applying for a money
award.
I would think that the answer is no for those that have
settled under the ICCA.
Senator Domenici. Mr. Chairman, could I clarify that? Mr.
Sansonetti, if you do not choose remuneration, but had a right
to remuneration, do you still have a right to land?
Mr. Sansonetti. That very question is before the Solicitor
General's office and is being discussed within the Department
of Justice. There has not been a final--there are those that
feel, there are some that feel, that the ICCA was an
opportunity between the years of 1946 and 1978 to make your
claims if you felt that anything was out of sorts boundarywise
and the like, and consequently that was your opportunity. If
you missed that time, then you were out of luck.
There are those that say, well, to the degree that you were
looking for money that is true, but to the degree that you were
looking for the return of dirt, that was not the purpose of the
ICCA, that was the granting of money. So those that were
looking for dirt still have an opportunity to file a claim.
That particular issue is consequently one that would have
to be resolved by Justice.
Senator Domenici. Thank you, Mr. Chairman.
Chairman Inouye. Thank you.
If I may ask the General Counsel of the Department of
Agriculture: The settlement agreement avoids conflict with an
electronics site located on the top of Sandia Mountain because
the Pueblo has agreed to disclaim any interest in this area.
This site is the subject of 55 special use permits, including a
permit to DOD for a critical communications site that serves
the Kirkland Air Force Base.
If this settlement agreement and management plan are not
ratified by Congress, what effect could that have on this
electronics site?
Ms. Bryson. Our understanding is that the electronics site
is outside of the claim area and therefore would not be
affected one way or the other.
Chairman Inouye. If the legislation passes and the
management plan is ratified, why is it necessary to
specifically exempt the T'uf Shur Bien Preservation Trust Area
from the National Forest Management Act and other forest
planning statutes and regulations?
Ms. Bryson. I was not a party to the settlement. We may
need to supplement the answer I am going to give you on that,
Mr. Chairman. My understanding is that in the definition of the
laws that apply, the agreement of the parties is that the
National Forest Management Act would not apply because the
management plan that was adopted pursuant to the settlement
agreement differs in certain respects from the type of plan
that would be developed under that statute.
Chairman Inouye. Do you believe that this measure would
create a dangerous precedent of any sort?
Ms. Bryson. One of the points that we make in our full
testimony is the importance to us of the provision in the bill
which says this does not create a precedent for any other--for
resolution of any other land disputes. We do believe this is
unique and that the settlement agreement that was crafted
pertains to this site and this site alone.
Chairman Inouye. Thank you very much.
Senator Bingaman.
Chairman Bingaman. Thank you.
Let me just ask one question here. It is my understanding
the U.S. Forest Service has entered into several arrangements
with Indian tribes concerning the management of national forest
lands, particularly in situations in which the lands contain
Native American sacred sites. Among those I am aware of, there
are agreements with the Grand Ronde Tribe in Oregon, the Washoe
Tribe in Nevada, the Hamas Pueblo in New Mexico under the act
creating the Hamas National Recreation Area.
Isn't the management role provided to Sandia Pueblo under
this proposed legislation just an extension of existing
practice? I do not know which of you would want to comment on
that. I guess, Ms. Bryson, maybe you are the right one to
comment.
Ms. Bryson. I may be, and with your permission could we
respond to that question in writing?
Chairman Bingaman. That would be fine.
Ms. Bryson. We are not prepared right now.
Chairman Bingaman. Okay.
Let me stop with that, Mr. Chairman. I know there are other
Senators here wishing to ask questions.
Chairman Inouye. Senator Campbell.
Senator Campbell. Thank you, Mr. Chairman.
I am not an attorney, but I want to do the right thing. But
I see some similarities in other areas. As I understand it,
this bill is unique, unique circumstances. Is it your opinion,
anybody on the panel there, that S. 2018, this is the first one
of its kind, the first bill that reaches a settlement?
Mr. Myers.
Mr. Myers. Senator Campbell, only to the extent that I
previously mentioned that I know of no other pending dispute
within the Department of the Interior, even historically, that
is exactly on the four corners of this dispute. So as far as I
know it is the only one like it.
Senator Campbell. I see. Well, most people I think believe
in negotiated settlements. It is pretty hard to turn the clock
back, but most people also believe in negotiated settlements as
long as they get the best of the bargaining. That just has to
be human nature.
Several Senators asked about if it sets a precedent. We
could probably put language in the bill that says that it does
not, but I do not know if that limits a people's right in the
future to go to court anyway. So I am not sure how good that
is.
But Senator Domenici brought up a couple of points and
reminded me of the question we had some years ago about the
return of the Black Hills to the Oglala. That Black Hills area
was taken by force during World War Two and partly used for a
bombing range. The courts have said that the Lakota have every
right to get that land back and yet they do not have it
because, even though they were offered a repayment for it, many
of them refused the money, they refused the remuneration, as
you remember if you followed that.
So they refused the money, but they did not get the land
back, either. I do not know if that has any bearing on this
particular one, but I think we have dealt with some things that
are very similar in the past.
Just let me ask a couple of little simple ones here. Does
the Federal Government have the authority to correct a survey
error or a boundary error in the past along the Pueblo's
eastern boundary? I do not know who the expert would be on
that.
Mr. Myers. The District Court in this case said that the
Secretary of the Interior had the authority to correct the
survey.
Senator Campbell. But they did not go forward with that
survey, is that correct?
Mr. Myers. That is correct.
Senator Campbell. Is there a plan, do you know of, to go
forward with the survey?
Mr. Myers. Right now the plan is to see what Congress does,
Senator.
Senator Campbell. We do not know what to do. That is what
this bill is all about.
Well, okay. Thank you, Mr. Chairman. I will save any
further questions for the next round.
Chairman Inouye. Senator Domenici.
Senator Domenici. Thank you very much.
Senator Bingaman, we are sorry that you are so busy on the
floor. Are you going to have to go back before we finish?
Chairman Bingaman. I think we are in recess until 4:15, so
I am hoping that by then we have heard from a lot of the
witnesses.
Senator Domenici. We will be halfway there, maybe.
Let me first state for the record, Senator Bingaman used
the Hamas as an example. There is a very big difference,
Senator. The Hamas has no veto power on the part of anyone. The
Forest Service maintains the management prerogatives and they
do it together. This has a veto in it, as you remember.
But let me just talk about applicable laws. How does the
criminal and civil jurisdiction given to the Pueblo under this
legislation compare to that of tribal jurisdiction on their own
Pueblo? Either one of you. I assume it is you, Mr. Myers.
Mr. Myers. Senator, I am not confident in my answer to your
question. I would have to respond to you, I think.
Senator Domenici. Will you get us an answer?
Mr. Myers. I would be happy to, yes, sir.
Senator Domenici. Has it changed in any way because of this
agreement or is it the same as they have on their own land?
Mr. Myers. One of the areas that I noticed in my review of
this is the cross-section between the tribe's jurisdiction and
the hunting and trapping laws with the State of New Mexico.
That is the area that I would focus on probably first in
answering your question. But I would like to go back to my
office and give you a full answer.
Senator Domenici. We will not be finished anytime within
the next 10 days or so. So you can get it done.
Mr. Myers. All right.
Senator Domenici. Let me ask you just two or three more
questions. First, our Indian people who lay claim to this
property talk about using it for religious and cultural
affairs, which we respect, and we respect it even though it is
obvious that overwhelmingly, nobody sees it or participates in
it but the Indian people.
There is a statute with reference to our public domain that
gives the Indian people the right to conduct their religious
and cultural activities on forest land. Are you familiar with
that?
Mr. Myers. Just generally, sir.
Senator Domenici. I would like to know there also, if you
will go back and check, we believe they do not need this
settlement in this manner to have cultural and religious rights
that are almost as exclusive as these, if not the same. I just
would like to know that. If you would check that out, it would
be appreciated.
Mr. Myers. I will do that, and that ties into a comment
that I made as an attachment to my written testimony, which is
a suggestion that perhaps the phrase ``traditional and
cultural'' as it is used in the bill in several sections be
further defined, so that we better understand what Congress
would mean by ``traditional and cultural uses'' in this
legislation.
Perhaps the answer to that is a cross-reference to the
statutory provisions already provided by Congress.
Senator Domenici. I would also like to propose, as I stated
in my opening statement, some queries I had. I would like you
to tell us whether NEPA has any application to this. Has there
been or will there be any major Federal action as this moves
through that would require a NEPA statement?
Mr. Myers. We will also give you that answer.
Senator Domenici. Will you check that one out for us?
Mr. Myers. Yes, Senator.
Senator Domenici. There is also in this proposed
legislation, once the deal is made, no use changes are made
unless they are agreed to by both parties. You have alluded to
that.
Mr. Myers. Yes, sir.
Senator Domenici. That is a very big concession on the part
of each. If the Indian people claim they own it, that is a big
concession. If the Government owns it for the people, that is a
big concession. As much as you can give us some background on
that would be helpful and I would appreciate that.
Lastly, last but not least, if you went up and saw this
property you will note that there are trees and shrubs that are
close to buildings and close to houses that are part of this
acreage.
Mr. Myers. Yes, sir.
Senator Domenici. We are already living from day to day in
New Mexico with reference to a drought that might bring forest
fires to any part of our State. Forest plans have to be made,
and in the last few years we have provided substantial
resources for forest plans to be made by the appropriate
entity, Ag or Interior.
As part of producing that, plans are developed that have
some kind of authority vested in them wherein houses and other
things are preserved somewhat from the closeness, the proximity
of rage, of the rage of fire. I am concerned that once this
became law there would be no right to modify that kind of plan
if either side decided that they were not as interested in fire
burning something as the other side.
I wonder how we would get those kind of plans done under
this agreement if they were required to be done from time to
time. I assume your answer is going to be what mine is: both
sides will have to agree. If that is it, I would like to know
that.
Mr. Myers. If that constituted a new use under the
definition of a new use in the bill, then yes, any party given
veto authority would have to agree to a new use before that use
actually was implemented on the ground.
Senator Domenici. I have some others that I am going to
submit to you, but in the interest of getting to our New
Mexicans I am going to stop at this.
Thank you, Mr. Chairman.
Chairman Inouye. Thank you very much.
Senator Craig.
Senator Craig. Thank you, Mr. Chairman. I will be brief, a
couple of questions here. There are many and I will submit them
for the record for all three of you.
Nancy, on pages 3 and 4 of your testimony you suggest a
serious issue related to the Leshy opinion and its assumption
that the Department of the Interior would be responsible for
the resurvey. Would you explain exactly what those significant
issues are in the eyes of the Department of Agriculture?
Ms. Bryson. The responsibility to do the survey; the time
frame, the 12 months, seems rather quick to us; and resources
to do it.
Senator Craig. Understanding the provisions in 10.C of the
bill, that this is a unique situation and should not set
legislative precedents, are there other situations that you
know of or could imagine where you would support legislation
that eliminates the underlying forest management or
environmental laws needed to manage the lands entrusted to the
Federal Government?
Ms. Bryson. We think the settlement reached in this case is
based on the facts that were presented in this case, the
history that you have heard about, the desire of all the
parties to avoid litigation. It is all those things combined
that produced the settlement agreement that is being discussed
here for incorporation into the bill.
Senator Craig. My friend from Colorado asked a question of
you, Bill, and I want to re-ask it, but add something to it as
it relates to, do you know of any tribes that currently have
proposals to have other different lands, national parks, or
national forests returned to them or to be managed by them? I
am referencing specifically Secretary Norton's recent
announcement related to Klamath Tribe and the Winema National
Forest in Oregon.
Is there a relationship here? Is that in itself a
precedent, or are we establishing now the right or what would
appear to be at least the legitimacy of coming forward to claim
additional lands?
Mr. Myers. Well, as you know, Senator Craig, there are
dozens upon dozens of federally recognized tribes, each with
its own interest in its land base. Whether those specific
examples that you have just cited might be watching this
legislation with an eye toward duplicating it, I cannot say. I
think it is worth looking into and we would be happy to do that
and determine as best we can whether there is some precedent
that might be established by this legislation that would impact
the requests of those tribes that you referenced.
Senator Craig. Mr. Chairman, thank you.
Gentlemen, Nancy, thank you very much.
Chairman Inouye. I would like to thank the panel very much.
We appreciate it.
Our next panel: The president of HMS Associates,
Incorporated, a consulting firm in Santa Fe, New Mexico, Dr.
Stanley M. Hordes; and from the University of California
Hastings College of Law in San Francisco, Professor John Leshy.
Dr. Hordes.
STATEMENT OF STANLEY M. HORDES, Ph.D., PRESIDENT,
HMS ASSOCIATES, INC.
Dr. Hordes. Thank you. Mr. Chairman, members of the
committee: My name is Stanley Hordes. I am an historical
research consultant and former State Historian for the State of
New Mexico. I hold a Ph.D. in colonial Mexican history from
Tulane University and I have conducted research into the
history of Mexico and the Spanish borderlands for over 27
years. I have performed expert research and testimony in dozens
of cases involving the history of land and water in the
Southwest over the past 17 years. I also hold the position of
adjunct research professor at the Latin American and Iberian
Institute at the University of New Mexico.
In 1995, I was asked by the U.S. Forest Service to conduct
research into the history of the boundaries of the Pueblo of
Sandia. I made it clear at the outset to the Forest Service
that I did not view my role as adversarial, that I did not see
my position as one of trying to find historical facts to
support a particular position. The Forest Service not only
agreed with this approach, but insisted upon it.
On March 1, 1996, I submitted my report entitled ``History
of the Boundaries of the Pueblo of Sandia, 1748 to 1860,''
which was based on research conducted in New Mexico,
Washington, and Mexico City. I would like to request that a
copy of this report as well as my resume be entered as part of
the official record of the testimony.
Chairman Inouye. Without objection.
Dr. Hordes. On the basis of my research, I offer the
following conclusions: One, in 1748 the Governor of New Mexico,
in the name of the King of Spain, issued a grant of land to a
mixed population of Hopi and Southern Tigua Indians. This land
was located on the site of the old Pueblo of Sandia, which had
been abandoned approximately 68 years earlier.
Secondly, the Governor of New Mexico considered the newly
constituted Pueblo of Sandia as a ``formal pueblo,'' ``pueblo
formal,'' receiving, like other Indian pueblos in New Mexico, a
grant of land comprising four square leagues or 2.6 miles
measured from the center of the Pueblo in each of the cardinal
directions.
In the case of Sandia, due to the shortfall of land to the
west, the Pueblo was compensated with additional lands to the
north and to the south. The eastern boundary was not affected
by this adjustment and thus extended only 2.6 miles, one
league, toward the ``sierra madre,'' or mountain range, called
Sandia, which served as a designated landmark on the east.
Three, after the U.S. takeover of New Mexico in 1848 the
U.S. Office of Surveyor General began the process of
authenticating and surveying all land grants issued by Spanish
and Mexican authorities. During the investigation into the
boundaries of the Pueblo of Sandia, the official translator,
David V. Whiting, engaged in an apparently deliberate
mistranslation of the 1748 grant documents, mistranslating the
term ``sierra madre'' and adding boundary calls that never
appeared in the original record. By means of this translation,
the boundaries of the Pueblo were actually extended to the east
and to the south, giving the Pueblo approximately 7,000
additional acres more than that originally granted in 1748.
Four, the term ``sierra madre'' clearly does not mean
``main ridge'' either through direct translation or within the
context of the grant documents. ``Sierra madre'' simply means
``mountain range'' and, taken with the geographical maps, can
clearly be seen as abutting the eastern boundary of the Pueblo.
Fifth, I found no documentation that would indicate that
the eastern boundary was ever considered as the summit of the
Sandia Mountains by Spanish authorities.
In deriving these conclusions, I find no ambiguity in the
documentation to support the claim that the eastern boundary of
the Pueblo was ever recognized as the summit by Spanish
authorities. To the contrary, an objective analysis of the
record leads to an unambiguous conclusion that the placement of
the eastern boundary of the Pueblo at the crest of the Sandia
Mountains is inconsistent with historical fact.
I reviewed the opinion issued on January 19, 2001, by the
Solicitor of the Department of the Interior relating to the
Sandia claim. I believe that the Interior opinion made
significant errors regarding issues of historical
interpretation and historical fact and misrepresented the
material contained in my 1996 report. The Interior opinion
apparently relied upon sources that were not authoritative or
whose theories were found to be unsubstantiated.
Specifically, the Interior opinion, number one,
misrepresented the significance of the northern and southern
boundary calls in the 1748 granting document, documents which
clearly place the grant in a downhill setting, the boundary in
a downhill setting.
Second, mistakenly and uncritically it assumed the
incorrect translation of ``sierra madre'' as ``main ridge,''
failing to address the etymological analysis that was contained
in my 1996 report.
Three, I found the opinion misconstrued the nature of the
alterations to the boundaries of the Pueblo, which resulted
from the mistranslation of the U.S. translator in the 1850s.
Four, I believe the Interior opinion misconstrued the
nature of pueblo grants under Spanish law by failing to
recognize that the lands in dispute were unallocated royal
lands, held in common for all residents of the area, including
the Pueblo, to secure necessary timber and firewood. Thus, the
Pueblo did not need to own these lands in order to gain access
to these resources.
Fifth, I found the Interior opinion misconstrued the
concept of the area granted to each Indian pueblo in colonial
New Mexico, which was four square leagues or approximately
17,000 acres, and misrepresented the analysis of this question
that I offered in my report.
After the U.S. takeover of New Mexico, the Federal
Government recognized the grants of 14 pueblos as originally
comprising four square leagues. The higher acreages assigned by
the Government to seven other pueblos were due to additional
lands that were either granted or purchased by them at a later
time or, on the other hand, due to fraudulent information
provided to the U.S. authorities.
Six, I believe the Interior opinion misrepresented other
grants as analogous to that of Sandia, specifically the
adjacent Elena Gallegos Grant, which was not granted to a
pueblo, but rather to a non-Indian, and thus was governed by
different criteria under Spanish law and Spanish custom.
Seven, I believe that the opinion ill-advisedly relied for
its conclusions on the work of the late Dr. Myra Ellen Jenkins,
many of whose opinions regarding this issue were not
substantiated by the documentary record. Had Dr. Jenkins
thoroughly examined the 1748 grant documents as I had done, I
believe Dr. Jenkins would have realized the impact of the gross
errors of the Whiting mistranslation on the expansion of the
Pueblo's eastern boundary in the 1850's and 1860's.
I thank the committee for the opportunity to offer
testimony on this most important issue and stand ready to
respond to any questions you might have.
[The prepared statement of Dr. Hordes follows:]
Prepared Statement of Stanley M. Hordes, Ph.D., President,
HMS Associates, Inc.
Mr. Chairman and Members of the Committee: It is an honor to appear
before the Committee this afternoon to share with you the results of my
research into the history of the eastern boundary of the Pueblo of
Sandia.
My name is Stanley Hordes, President of HMS Associates, Inc., a
historical research consulting firm, based in Santa Fe, NM. I hold a
Ph.D. in Colonial Mexican History from Tulane University in New
Orleans. I have conducted research into the history of Mexico and the
Spanish Borderlands for over twenty-seven years, and served as the
State Historian for the State of New Mexico. I have performed expert
research and testimony in dozens of cases involving the history of land
and water in the Southwest over the past seventeen years. I also hold
the position of Adjunct Research Professor at the Latin American and
Iberian Institute at the University of New Mexico. I would like to
request that my complete resume be entered as part of the official
record of my testimony.
In 1995, I was asked by the U.S. Forest Service to conduct research
into the history of the boundaries of the Pueblo of Sandia, with
specific reference to the geographical extent of the Pueblo's eastern
boundary from the establishment of the Pueblo's grant from the King of
Spain in 1748. I made it clear to the Forest Service that I did not
view my role as adversarial, that I did not see my position as one of
trying to find historical facts to support a particular position. I
told the Forest Service that I would conduct the most objective
professional job possible. The Forest Service not only agreed with this
approach, but insisted upon it.
On March 1, 1996, I submitted my report, entitled, ``History of the
Boundaries of the Pueblo of Sandia, 1748-1860,'' which was based on
research conducted in New Mexico, Washington, DC, and Mexico City. I
would like to request that a copy of this report be entered as part of
the official record of my testimony.
On the basis of my research, I offer the following conclusions:
(1) In 1748, the governor of New Mexico, in the name of the
king of Spain, issued a grant of land to a mixed population of
Hopi and Southern Tigua Indians. The land was located on the
site of the old Pueblo of Sandia, which had been abandoned 68
years earlier.
(2) The governor of New Mexico considered the newly
constituted Pueblo of Sandia as a ``formal pueblo,'' receiving,
like other Indian pueblos in New Mexico, a grant of land
comprising four square leagues--or one league (2.6 miles)
measured from the center of the pueblo in each cardinal
direction. In the case of Sandia, due to a shortfall of land to
the west, the Pueblo was compensated with additional lands to
the north and south. The eastern boundary of the Pueblo was not
affected by this adjustment, and thus extended only 1 league,
or 2.6 miles, toward the ``sierra madre [mountain range] called
Sandia,'' which served as the designated landmark on the east.
(3) After the U.S. takeover of New Mexico in 1848, the U.S.
Office of Surveyor General began the process of authenticating
and surveying all land grants issued by Spanish and Mexican
authorities. During the investigation into the boundaries of
the Pueblo of Sandia, the official translator, David V.
Whiting, engaged in an apparently deliberate mistranslation of
the 1748 grant documents, mistranslating the term, ``sierra
madre,'' and adding boundary calls that never appeared in the
original record. By means of this mistranslation, the
boundaries of the pueblo were extended to the east and south,
giving the Pueblo approximately 7,000 additional acres more
than originally granted by the king of Spain in 1748.
(4) The term ``sierra madre'' clearly does not mean ``main
ridge,'' either through direct translation, or within the
context of the grant documents. Sierra madre simply means
``mountain range,'' and, taken in its geographical mass, can be
clearly be seen as abutting the eastern boundary of the Pueblo.
(5)From the establishment of the Pueblo of Sandia in 1748,
until the assumption of sovereignty by the United States in
1846, Spanish and Mexican authorities recognized the eastern
boundary of the Pueblo of Sandia as a north-south line,
extending 1 league (5,000 varas, ca. 2.6 miles) east from the
center of the pueblo. At no time was the eastern boundary
considered as the summit of the Sandia Mountains.
In deriving these conclusions, I found no ambiguity in the
documentation that would lead to the deduction that the eastern
boundary of the Pueblo of Sandia was ever recognized as the summit of
the Sandia Mountains by Spanish or Mexican authorities. To the
contrary, an objective analysis of the record, I believe, leads to an
unambiguous conclusion that the placement of the eastern boundary of
the Pueblo of Sandia at the crest of the Sandia Mountain is
inconsistent with historical fact.
Subsequent to the completion of my 1996 report, I had the
opportunity to review the Opinion issued on January 19, 2001 by the
Solicitor of the Department of the Interior relating to placement of
the eastern boundary of the Pueblo of Sandia. The Interior Opinion made
significant errors regarding issues of historical interpretation and
historical fact. In developing its historical arguments, the Interior
Opinion misrepresented the material contained in my report, and appears
to have relied for its conclusions upon sources that were not
authoritative, or whose theories were found to be unsubstantiated.
Specifically, the Interior Opinion:
(1) Misrepresented the significance of the northern and
southern boundary calls of the Pueblo in the 1748 granting
document, which clearly placed the grant in a downhill setting.
One must be geographically below the mountain in order to
``face'' the two canadas noted in the document.
(2) Mistakenly and uncritically assumed the incorrect
translation of sierra madre as ``main ridge,'' failing to
address the etymological analysis in my Report.
(3) Misconstrued the nature of the alterations to the
boundaries of the Pueblo, which resulted from the
mistranslation of the U.S. translator in the 1850s.
(4) Misconstrued the nature of Pueblo grants under Spanish
law by failing to recognize that the lands in question were
tierras realengas, or unallocated royal lands, held in common
for all residents in the area, including the Pueblo, to secure
timber and firewood. Thus, the Pueblo did not need to own these
lands in order to gain access to these resources.
(5) Misconstrued the concept of the area granted to each
Indian Pueblo in Colonial New Mexico, which was four square
leagues, or approximately 17,000 acres, and misrepresented the
analysis of this question in my Report. After the U.S. takeover
of New Mexico, the federal government recognized the grants of
14 Pueblos as originally comprising only four square leagues.
The higher acreages assigned by the government to the seven
other Pueblos were due to additional lands either granted or
purchased at a later time, or to fraudulent information
provided to the U.S. authorities.
(6) Misinterpreted other grants as analogous to that of
Sandia, specifically the adjacent Elena Gallegos Grant, which
was not granted to a Pueblo, but to a non-Indian, and thus was
governed by different criteria under Spanish law and custom.
(7) Ill-advisedly relied for its conclusions on the work of
the late Dr. Myra Ellen Jenkins, many of whose opinions
regarding this issue were not substantiated by the documentary
record. Had she thoroughly examined the original 1748 grant
documents, as I had done, Dr. Jenkins would have realized the
impact of the gross errors of the Whiting mistranslation on the
expansion of the Pueblo's eastern boundary in the 1850s and
60s.
I thank the Committee for the opportunity to offer testimony on
this most important issue, and stand ready to respond to questions.
Executive Summary; History of the Boundaries of the Pueblo of Sandia,
1748-1860
by stanley m. hordes, ph.d., hms associates, inc.
January 26, 1996
This executive summary is designed to summarize a comprehensive
report submitted to the Southwest Region of the U.S. Forest Service,
entitled, History of the Boundaries of the Pueblo of Sandia. The
purpose of this report is threefold: (1) to analyze the boundaries of
the Pueblo of Sandia, as articulated and interpreted by Spanish,
Mexican and U.S. Territorial authorities from the establishment of
Sandia Pueblo in 1748 until the marking of the boundaries by the Office
of Surveyor General in 1860; (2) to define the term, sierra madre in
its proper historical context; and (3) to ascertain whether in 1748
Sandia Pueblo was populated by descendants of the original Sandia
Pueblo people who had migrated to the Hopi country after the Pueblo
Revolt of 1680, or, on the other hand, the pueblo was settled by other
Tigua and Hopi Indians.
i. historical evolution of boundaries, 1748-1860
On April 5, 1748, the Spanish governor of New Mexico signed a
decree approving the resettlement of the Pueblo of Sandia by Indians
brought from the Moqui (Hopi) country located some 200 miles to the
west. The governor's signature on this document represented the triumph
of a six-year effort by Franciscan friars to remove a mixed population
of recently converted Moquis and descendants of Southern Tiguas, who
had fled their homes after the 1680 Pueblo Revolt, from their
overcrowded quarters, and bring them to the Rio Grande Valley. By means
of the official Act of Possession, the pueblo received a tract of land
similar to that which was granted to other pueblos, comprising a little
over 17,000 acres. Normally, this piece of land would have measured one
league (2.6) miles in each direction from the center of the pueblo, but
because of the proximity of Sandia to the Rio Grande, and the fact that
the pueblo's lands were reduced to the west, Sandia received additional
lands to the north and south.
Thus, under the terms of the 1748 royal grant, the Pueblo of Sandia
received a tract of land measuring 7.06 miles north to south, and 3.35
miles east to west. To the east, the lands extended one league, or 2.6
miles from the center of the pueblo, reaching toward the foothills of
the Sandia Mountains, a feature that was designated as the eastern
boundary. The southern boundary extended 3.53 miles from the center of
the pueblo.
These limits were generally acknowledged by the Spanish and Mexican
authorities, the pueblo and its non-Indian neighbors, from 1748 until
the conquest of New Mexico by the United States a century later.
After the U.S. takeover in 1846, Congress established the Office of
Surveyor General, whose responsibilities included the authentication
and survey of all grants issued by the Spanish and Mexican governments
in New Mexico in accordance with the terms of the 1848 Treaty of
Guadalupe Hidalgo. During the course of the Surveyor General's
investigation into the nature and extent of the lands pertaining to the
Pueblo of Sandia, the official translator, David V. Whiting, engaged in
an apparently deliberate mistranslation of the 1748 grant documents,
adding boundary calls that never appeared in the original record. By
means of this mistranslation, the boundaries of the pueblo were
extended to the east and south. The official surveys conducted by the
Surveyor General reflected these extensions, resulting in the increase
of pueblo lands from about 17,000 acres to over 24,000 acres.
ii. definition of sierra madre in its proper historical context
Among the inaccuracies in the translation by Whiting of the
original Sandia Pueblo grant documents, was the mistranslation of the
term Sierra Madre de Sandia, which served as one of the eastern
boundary calls. Whiting represented sierra madre to mean, ``main
ridge''. An examination of archival documentation, as well as
historical and modern Spanish language and etymological dictionaries,
however, reveals that this term is defined, not as a ``main ridge'',
but rather as a mountain range.
The citation of the eastern boundary of the Pueblo of Sandia as the
Sierra Madre de Sandia should be understood in its proper historical
context only as a general point of geographical reference. Considering
that the specific measurement of the eastern boundary in 1748 was one
league (2.6 miles) from the center of the pueblo, the appropriate
identification of Sierra Madre de Sandia in this sense should be the
foothills, and not the crest of the mountain.
iii. ethnic composition of the indians who resettled
the pueblo of sandia in 1748
A controversy surrounds the question of whether the resettlement of
Sandia Pueblo represented a return of the descendants of Sandia Pueblo
people after a sixty-eight year sojourn in Hopi country, or, on the
other hand, the 1748 immigrants to Sandia were composed of other Native
American groups.
Based largely on interviews with Sandia Pueblo people, one of the
few ethnographical studies to address this topic asserts the pueblo
belief that those who resettled the pueblo in 1748 were descendants of
the original Sandias. As such, the pueblo today claims religious sites
in the mountains to the east. This study also relates that the pueblo
claims that it holds the foothills as within its boundaries, and that
part of the foothills were sold to the U.S. government early in the
twentieth century.
But eighteenth-century archival sources, as well as modern
historical scholarship, indicate that the Indians who settled the
pueblo in 1748 represented a mix of descendants of Southern Tigua
refugees who had fled the Pueblo Revolt of 1680, and Moquis. No
evidence can be found in the documentary record indicating that the
establishment of the mission at Nuestra Senora de los Dolores y San
Antonio de Sandia in 1748 represented an ethnic re-formation of the
earlier Pueblo of Sandia, which had been abandoned after the Pueblo
Revolt of 1680.
Nor can any record be found in the records of the U.S. Forest
Service that Sandia Pueblo ever owned lands in the foothills outside
its current boundaries, or sold such lands to the USFS. Moreover, an
examination of plats of the pueblo show no diminution of its lands on
the eastern boundary from 1860 to the present.
Chairman Inouye. Thank you very much.
Professor Leshy.
STATEMENT OF JOHN D. LESHY, FORMER SOLICITOR,
DEPARTMENT OF THE INTERIOR
Mr. Leshy. Thank you very much, Mr. Chairman, members of
the committees. I am happy to be back.
I am appearing today solely as a private citizen expressing
my own views. I am not representing anyone else interest in
this matter. In the interest of time, I would ask my statement
be included in the record.
Chairman Inouye. Without objection.
Mr. Leshy. I will just summarize and try to make three
quick points and then we can move on to questions.
First of all, I want to comment on the views of my fellow
panelist Dr. Hordes. I think everyone who has looked at this
matter understands that, as with many of the Spanish land
grants in New Mexico, the historical record here is somewhat
unclear. But let me emphasize, this is not a dispute between
John Leshy and Dr. Hordes. This is a dispute between Dr. Hordes
and a number of other historians. There have been many, many
qualified historians who have looked at this issue over the
years and have drawn somewhat different inferences from the
record.
While Dr. Hordes has his own view, there are a number of
other historians who have different views. In carefully
examining the record and the views of those various experts
offered over the years, I reached the result I did, and I
remain convinced that it is the correct conclusion, a fair
reading of the record, and I have every confidence that the
conclusion I reached, if it got to the courts on the merits,
would be sustained.
I should also add that at least one Federal judge has
looked at this matter and has concluded that, contrary to Dr.
Hordes' assertion that there is no ambiguity here, there is
only one conclusion you can draw. Judge Harold Greene here in
the Federal district court, specifically, in rejecting the
opinion of my predecessor, said that experts hold vastly
different opinions about the proper interpretation of the
historical record here.
That has been, of course, the basic problem all along.
There just are good faith disagreements about what this record
means. As I said, in my judgment the best view of the record is
that the intention of the Spanish land grant was that the
eastern boundary of the Pueblo be drawn at the mountain crest,
and I wrote 15 or 20 pages in my opinion to explain that,
carefully documenting and going over the views of the various
historians on this matter.
My second main point is to address a question that Senator
Campbell asked earlier, which is is there a need for Congress
to act. In my judgment there is a very urgent need for Congress
to act. We have a settlement here that I think from just about
every perspective is a fair, balanced, reasonable settlement of
this problem. That settlement, as General Sansonetti said, goes
up in a puff of smoke by November 15, on November 15, unless
Congress acts.
If that settlement does go up in smoke, I think it would be
a very serious setback for a resolution of this problem. What
could happen then? There are a number of things that could
happen then. None of them are in my judgment nearly as
preferable as moving forward with ratification of this
settlement.
Each of them, whether they go back to court and have
prolonged litigation or whether the Department does a resurvey
and essentially quiets title to the disputed area in the
Pueblo, each of those solutions I think would be far worse than
the settlement that is now before you.
Most specifically, the settlement addresses a number of
issues that cannot be answered by the courts in the litigation.
The access to those subdivisions, for example, is not involved
in the claim area. The settlement agreement essentially
permanently grants access to the inholdings. The courts can
never do that.
If there is no settlement and if the Pueblo--whether or not
the Pueblo gains title to that disputed area, that access
question is going to be outstanding. And I think that the
goodwill that has been generated in getting to the settlement--
if the settlement falls apart, that goodwill may fall apart as
well, and I think we could have some real serious problems up
there if we do not move forward with the settlement.
Third and my last point, I want to address Senator Inouye's
question about the precedent that this settlement might set. I
have been practicing and teaching different land law and Indian
law for several decades. In my judgment, the concern about what
kind of precedent this sets or does not set really should not
be an issue here.
There is precedent in settling Indian claims for giving
Indian tribes outright title. Congress did this at the Blue
Lake Taos 20 years ago. There is precedent for giving Indians
in disputed claims some sort of joint management
responsibility. Congress did that with the Havasupi Indians in
the Grand Canyon in 1975. Congress did that 2 years ago with
the Timbashaw Indians in Death Valley National Park.
There are also many precedents--I can think of at least a
dozen; there are probably many more--for giving Indians in
areas that they have an ancient and serious tie to some
consultative and procedural rights and access rights for
ceremonial uses, that sort of thing.
So that has all happened a number of times before. So I
think there are many examples of arrangements that are in law
already where the U.S. Congress has acknowledged Indian rights
and interests in how Federal lands are managed. I do not really
see anything in this bill or this settlement that would create
an undesirable precedent.
I think, frankly, Congress has a golden opportunity before
it to resolve a long-festering issue in a wholly satisfactory
way, and I think it would be a terrible shame if this
opportunity were lost. So I strongly urge the Congress to move
forward.
Thank you very much.
[The prepared statement of Mr. Leshy follows:]
Prepared Statement of John D. Leshy, Former Solicitor,
Department of the Interior
I appreciate the invitation to testify here today. I am appearing
today solely as a private citizen, expressing my own views. I am not
representing anyone else in this matter, and am not speaking for my
current employer, the University of California Hastings College of the
Law, where I am currently a Distinguished Visiting Professor.
I strongly urge the Congress to enact legislation to ratify the
April 2000 Settlement Agreement reached by the Pueblo of Sandia, the
federal agencies, and the Sandia Peak Tram Company. The Agreement is a
fair, carefully crafted resolution to the long-festering question of
the location of the eastern boundary of the Pueblo of Sandia. S. 2018
substantially tracks its provisions.
I first want to comment on the views of my fellow panelist, Dr.
Stanley Hordes. As was the case with many of the Spanish land grants in
New Mexico, the historical record here is not a paragon of clarity.
People can and have argued about many things in that record. In
preparing my January 2001 legal opinion, I carefully examined Dr.
Hordes' report, along with the views of other historians. My Opinion
concludes that the historical record, and the collective judgment of
historians who have examined the issues involved, strongly supports the
Pueblo's position, rather than Dr. Hordes' position, as to the location
of the eastern boundary. I continue to believe that is a correct
conclusion, and a fair reading of the voluminous record. I further
believe that this conclusion will be upheld by the courts if they have
occasion to review it.
As that Opinion indicates, Dr. Hordes makes various assumptions and
draws various inferences from the record. (Among these are the meaning
of the reference to ``sierra madre'' in the Act of Possession, the
degree to which the formal pueblo idea was followed by the Spanish in
making land grants, and the relevance of the fact that the eastern
boundary of nearby grants was determined to be at the mountain crest.)
The Opinion points out that, in many cases, Dr. Hordes' assumptions and
inferences are not shared by others who have examined such matters.
Indeed, others who have examined the matter believe the record supports
a conclusion opposite of that reached by Dr. Hordes. Furthermore, some
of the matters Dr. Hordes addresses--such as the disputes about the
northern and southern boundaries--are at most only remotely relevant to
the location of the eastern boundary.
Dr. Hordes' conclusions are essentially the same as those in the
1988 so-called Tarr Opinion. When I was Solicitor of the Department of
the Interior, the United States defended the Tarr Opinion in court,
with my concurrence, even though I harbored serious doubts that it was
a correct reading of the law. A very well-respected federal judge (who
had been on the bench for more than two decades, and is now deceased)
reviewed all the evidence and arguments, including arguments along the
lines of those offered by Dr. Hordes, and ruled in July 1998 that the
Tarr Opinion was defective. The judge explained that the Opinion failed
to give sufficient weight to the Pueblo's arguments, and specifically
had not applied a controlling interpretive principle (one which dates
back in American law nearly two hundred years) for construing
ambiguities in documents relating to Indians. Let me quote the key
point of the judge's ruling:
[T]he circumstances surrounding the Pueblo land grant are
ambiguous. Experts . . . hold vastly differing opinions as to
the proper interpretation of the Spanish land grant. The Tarr
Opinion . . . myopically fails to find ambiguity. The Court
finds that this error led to another error, the failure to
apply the [and here the court quoted a modern U.S. Supreme
Court decision] ``eminently sound and vital canon . . . that
statutes passed for the benefit of . . . Indian tribes . . .
are to be liberally construed, doubtful expressions being
resolved in favor of the Indians.'' Therefore, the decision of
the Department of the Interior cannot stand.
The judge vacated the Tarr Opinion and sent the matter back to the
Interior Department with a directive to take action consistent with the
judge's ruling.
After the district court vacated the Opinion in 1998, we decided to
see if the matter could be settled by negotiations in a way that
satisfied the major concerns of all parties. Anyone who spends much
time in litigation knows that settlements are often, even usually,
preferable to litigation to the bitter end. In this particular case,
settlement looked like an eminently attractive alternative. Why? For
essentially two reasons.
First, all our study and conversations with the various interests
convinced me and the other federal parties--which included the Forest
Service and other officials in the Department of Agriculture and the
Department of Justice--that the disputants were actually in very
substantial agreement about how the land in the dispute area ought to
be managed. Everyone basically wanted the land to remain no more
developed than it is now, to be kept in an essentially natural state,
and to be open to public recreational access under reasonable
supervision.
This general agreement about what ought to happen on the ground was
very different from most other litigation in which I've been involved.
As this Committee is well aware, typically a wide gulf divides the
parties in these kinds of matters. One side wants to mine or log or
otherwise develop or intensively use the land, and the other side wants
it left alone. Here, by contrast, everyone agreed the land should be
left undeveloped. Moreover, the other land use objectives of the key
interests were so strikingly similar that the makings of an agreement
were practically staring us in the face.
There was a second and equally important reason why settlement
looked attractive. Continued litigation over the Pueblo's eastern
boundary simple could not resolve many of outstanding issues involving
the inholders (the private landowners in the area) as well as the Tram
Company, the Counties, the Forest Service, and the holders of special
use permits for communications sites at the top of the Mountain, some
of which are in the claim area.
Even if the Pueblo ultimately lost in court, for example, some very
important on-the-ground management questions would remain. For example,
what would happen to the inholders' road and utility access to their
inholdings, if the Pueblo wanted to restrict access across Pueblo land
(outside the claimed area)? Some of the current access is merely
subject to a lease granted by the Pueblo which will expire in a few
years. One of the main access roads that crosses Pueblo land outside
the disputed area is actually in trespass because it is not supported
by an existing lease.
Or if the Pueblo ultimately succeeded in the courts, would it
choose to continue to allow access to inholders, recreationists,
special use permit holders, and others? What would be the scope of its
regulatory authority and jurisdiction over the area?
A negotiated settlement could address these important matters.
Continued litigation over the boundary could not. The logic favoring
settlement let, after strenuous, conscientious efforts, to the
Settlement Agreement that brings us here today.
In my judgment, although one can always quibble over details, the
settlement is a win-win. It protects all parties' key interests. It
reflects agreement on all important issues of on-the-ground management,
including those that could not be resolved by continued litigation. It
sets out a clear path for future management of this area. It honors and
respects existing uses, and it quiets title.
There is, of course, an important catch. The Settlement Agreement
remains in effect only until November 15, 2002. This brings me to my
second main point: There is an urgent need for prompt congressional
action. If Congress does not act by then, several different things
could happen. None is nearly as good as ratifying the Settlement
Agreement. Each would, in various degrees, prolong uncertainty, delay
ultimate resolution, lead to additional expense and, in the worst case,
drive apart the various interests who have come together to produce
this landmark accord.
If Congress does not act by November 15, the Secretary of the
Interior may simply proceed to implement the legal opinion I signed as
Solicitor in January 2001, and to conduct a resurvey of the Pueblo of
Sandia's eastern boundary. Upon secretarial approval of the resurvey at
the crest of the Sandia mountain, the land in the claimed area would
become vested in trust for the Pueblo. If that happened, none of the
various safeguards for the interests of the Tram Company, the
inholders, special use permit holders, recreational users of the lands,
and the Forest Service that are included in S. 2018 would apply. It
would take an Act of Congress to install such safeguards, and even if
Congress passed such legislation, the Pueblo would likely have to be
compensated for the resulting restrictions on its property rights.
Alternatively, the Secretary could ask the Solicitor to revisit my
legal opinion. If my successor did so, and resurrected something along
the lines of the Tarr Opinion, the federal courts would almost
certainly be asked once again to intervene. Because the court has
already rejected the reasoning of the Tarr Opinion, the United States
would have a steep uphill battle in trying to convince the courts
otherwise. Litigation is expensive, time-consuming, and divisive.
Moreover, the only answer it can give in this kind of case is a
simplistic, yes-or-no, zero-sum answer. That is, the courts simply
cannot address many of the access and management questions that the
agreement and S. 2018 address sensibly and in great detail.
If Congress does not act by November 15, the Settlement Agreement's
guarantee of continued, permanent access to inholders, special use
permit holders, the Forest Service, and recreational users across
Pueblo lands would disappear. It is a risky to assume that the Pueblo
will be willing to continue to support such a guarantee if the current
settlement falls apart.
Finally, I have heard it said that the approach of this legislation
is unprecedented, and troublesome because it gives the Pueblo a veto
over new proposed uses in the claim area, and also recognizes the
Pueblo's right of access for traditional and cultural uses. It is my
firm opinion, based on decades of practicing and teaching federal land
law and Indian law, that this concern about precedent is totally
unfounded.
For one thing, the area will remain designated wilderness under the
terms of the settlement. This, and the rugged terrain, make it very
unlikely significant new uses would ever be proposed in this area.
(Experience in the nearly quarter of a century since the wilderness was
designated bears this out.)
For another, Congress has often devised innovative arrangements for
managing federal lands which depart from convention when peculiar local
conditions require it. A prominent recent example was the approach
fashioned by New Mexico's congressional delegation in the Baca Ranch
acquisition and management legislation, enacted into law less than two
years ago.
Most important, there are many examples in the long history of
arrangements between the United States and Indian tribes where Congress
has acknowledged Indian rights and interests in how particular areas of
federal land are managed. A number of treaties and statutes recognize
rights of particular Indian tribes--most notably in the Pacific
Northwest and in the Great Lakes region--to hunt, fish and gather
resources on federal lands (and in some cases, nonfederal lands). At
least one prominent unit of the national park system, Canyon de Chelly
National Monument in northeastern Arizona, is actually on Navajo tribal
trust land, and the National Park Service administers the area under an
operating agreement with the Navajo Nation.
A couple of other modern examples from the southwest are especially
apt. In 1975 Congress accorded the Havasupai Indians certain statutory
rights with respect to certain lands in the Grand Canyon National Park.
Less than two years ago, Congress enacted a statute recognizing rights
of the Timbisha Indians in certain lands in Death Valley National Park.
In short, there is ample precedent for acknowledging the right of
the Pueblo of Sandia to have a say, recognized in federal law,
regarding how this area will be managed. Almost everyone agrees that
the Pueblo has close and ancient ties to this area. Moreover, the
Pueblo has a very credible legal claim to this area. This means that
the alternative to ratifying this settlement may not be that the Pueblo
has no voice in how this land is managed; instead, it may be that the
Pueblo has essentially the only voice in how this land is to be
managed.
The Settlement Agreement that S. 2018 substantially tracks was
carefully drawn during extended negotiations. Like all settlements, it
reflects compromises on all sides, but I firmly believe it resolves the
Pueblo's claims, and many other issues that further litigation would
not resolve, in a way that is fair, comprehensive, and permanent.
Congress now has before it a golden opportunity to resolve this
long-festering set of issues in a wholly satisfactory way. It would be
a terrible shame if this opportunity were lost.
Chairman Inouye. Thank you very much.
Professor Leshy, does the Federal trust responsibility to
Indian tribes and the Government to Government relationship
that the United States has with the tribes permit these types
of cooperative management arrangements on public lands in which
tribes have a legal, historical, or cultural interest?
Mr. Leshy. Yes, Senator, I believe that the idea of
cooperative arrangements and collaborative management
responsibilities in these select areas where tribes have these
ancestral, strong ancestral ties, is an entirely appropriate
expression of and implementation of the trust responsibility.
Chairman Inouye. Does the U.S. Government have the same
unique legal relationship with non-Indians as it does with
Indian tribes that would form the basis for this type of
arrangement?
Mr. Leshy. Well, the United States has a special
responsibility to Indian tribes. It is a firmly embedded
principle in American law that goes back 200 years. The United
States obviously also has responsibilities toward non-Indians.
I would not characterize them as the same, but clearly non-
Indians who use Federal lands clearly have rights.
I think, frankly, the beautiful thing about the settlement
that is before you is that it carefully and I think
appropriately balances the rights and expectations of non-
Indians as well as the Pueblo.
Chairman Inouye. Now, when you were Solicitor why did you
decide to issue an opinion on January 19 rather than leave the
resolution of this matter to the incoming administration?
Mr. Leshy. Let me, Senator, put this in context. One of the
very first things that hit me when I became Solicitor in 1993
was this Pueblo of Sandia matter. The Pueblo came to see me.
They were dissatisfied with the Tarr opinion. They asked me to
review it. I looked at it. I had serious doubts about it, but I
thought, well, the Government has taken this position, the
Government ought to defend it in court. So we did for several
years defend the Tarr opinion in court, even though I privately
harbored serious doubts about the accuracy of it.
Then the Federal judge threw out the Tarr opinion, for
reasons that I indicated, said that it did not fairly represent
an accurate view of the law. The intervenors--then we started
working on the settlement. The intervenors took that court
decision to the Court of Appeals. The Court of Appeals
dismissed their appeal because the settlement had been reached
in November.
Four days later, the Sandia Mountain Coalition and the
county of Bernalillo asked me to move forward with a correct
resurvey. The Pueblo asked me to move forward. At that point I
had been grappling with this issue for 8 years. I had dozens of
meetings about it inside and outside of my office, with
Department of Agriculture attorneys and officials, with
Department of Justice officials, and with all the interest
groups.
In my 8 years as Solicitor, I have dealt with thousands of
legal questions. I frankly do not think I have devoted more
study to any single discrete legal issue, more time, than I did
to the Sandia question. I was at least as familiar with it as
probably anybody in the Federal Government.
I could have simply left office and left this matter
unresolved. But the judge had thrown out the Tarr opinion and
directed the Department of the Interior to take action in
conformity to his opinion. I was very uncomfortable about
leaving office not following the judge's direction. When we had
a tentative settlement in hand, that was good, but, as I said
earlier, that settlement would go up in smoke if Congress did
not approve it and then we would be back in court.
Given all those circumstances, I thought then and I still
firmly believe that it would have been irresponsible for me to
walk out of office without following the court's direction and
resolving this matter by opinion. I think if I had walked out
and not done it, it would have delayed ultimate resolution
perhaps for a very long time. It would have made renewed
litigation more likely, not less likely, and I think renewed
litigation frankly would be the absolute worst thing to happen
here for the people of Albuquerque, the counties involved, the
affected land owners, the recreationists, the Forest Service,
and the Pueblo.
So I decided to move forward at that point and, after
consulting again with Agriculture and Justice, with the
reevaluation that the court had called for, I reopened the
record. I asked for more comments and arguments from all the
parties. I got those, I read those, and I considered them. I
believe the opinion, as I said, I reached in January was the
right result, reached for the right reasons, and was the right
thing to do under the circumstances and will, if it comes to
that, be upheld by the courts.
But I continue to hope and urge that Congress ratifies the
settlement agreement and brings this matter to a close. Thank
you.
Chairman Inouye. Thank you.
Dr. Hordes, I gather that you disagree with Solicitor
Leshy's opinion of January 19?
Dr. Hordes. Yes, sir, that is correct.
Chairman Inouye. Would you like to elaborate on that?
Dr. Hordes. Oh, I can reiterate what I indicated before,
but it was fairly well included in the, I think seven or eight
points that I made in my testimony.
Chairman Inouye. Thank you very much.
Dr. Hordes. Yes, sir.
Chairman Inouye. Senator Bingaman.
Chairman Bingaman. Mr. Chairman, I appreciate very much
both of the witnesses being here. I do think it is useful
testimony. Obviously, what we are trying to do or what I have
been trying to do in the proposed legislation is not to once
again get into the validity of the claim. I mean, I think that
that is an interesting issue, but frankly it is the subject--it
has been the subject of much litigation, may be the subject of
more litigation.
The hope is to get a resolution that all parties could live
with. So I appreciate the testimony and I know that
particularly John Leshy has spent a lot of time on this and I
appreciate him coming to the committee today to follow up on
the work he has done before.
Chairman Inouye. Senator Campbell.
Senator Campbell. Well, Mr. Chairman, I almost do not know
where to start. Certainly Mr. Leshy and Mr. Hordes know a lot
more about it than I do and their reputation is well known. Few
other people in the audience probably have their expertise,
maybe with the exception of Reed Chambers back there, who has
been a wonderful source of information for our committee, the
Indian Affairs Committee.
But I just sit here listening about the laws and the rights
of the Spanish land claims and the U.S. Government and
literally everybody else, including the people who have homes
in that area, and I would like to know a little bit more about
what I would call aboriginal rights. That is, the Sandia
Pueblo, the Indian people. Because I have friends that are
Pueblo people, but I do not know a lot about their history.
Maybe you can tell me.
Were they in that area--I mean, how long have they been in
that area? Have they been there before New Mexico was a State?
Senator Domenici. 600 years.
Senator Campbell. 600 years. So they were there before New
Mexico was a State, before Albuquerque was a city, before the
U.S. Government was a government, before Spanish rule, before
Columbus--a long time.
Where I live up by Mesa Verde in Colorado, it is said that
the Anasazi, the ``Ancient Ones,'' became the Pueblo Indians,
that when they droughted out over a period of years around the
11th or 12th century, they then moved down the river and that
is when they became Pueblos. I do not know how true that is. I
guess some historian or some anthropologist, somebody could
probably tell me.
But it seems to me that, you know, they did not have a
written language, did not have all kinds of documentation that
we have in modern society, but certainly they have got some
kind of aboriginal claims just having been there that long.
Since there were in those days, there was no fences or lines or
borders or so on, that area where they have lived for 600
years, as Senator Domenici has said----
Senator Domenici. They used it.
Senator Campbell. They have used that for that amount of
time.
Whatever land that they lost, like this disputed land here,
how did they lose it? They did not lose it?
Dr. Hordes. May I respond, Senator Campbell?
Senator Campbell. Yes, please. I am interested in knowing.
Dr. Hordes. First of all, we are dealing with a situation
that is unique among the pueblos. Certainly there was a Pueblo
of Sandia in the approximate area of the present Pueblo before
the coming of the Spanish. After the Pueblo Revolt of 1680, the
Pueblo was abandoned in about 1680, 1681, and they had left to
go west toward the Hopi country in western New Mexico and
eastern Arizona.
It was not until about 68 years later in the 1740's that
the Franciscans were desirous of bringing some of the
descendants as well as some of the Hopi Indians, the
descendants of the general refugees from the Rio Grande Valley,
back to the Rio Grande Valley and settling them on a mission on
the abandoned site of the Pueblo of Sandia.
So what we see in 1748 is the creation of a new settlement.
We are not dealing with individuals whose roots go back on that
site beyond 1748. There may have been some of the descendants
of the Pueblo among them, but for the most part it was a re-
formation of a mixed group of Indian people on the site in
1748, and the rights that they have, that the United States
recognizes, stems from the rights that were granted by the
Governor of New Mexico speaking for the King of Spain,
continued by the Republic of Mexico, and under the terms of the
Treaty of Guadaloupe-Hidalgo of 1848 my understanding is the
United States must recognize the rights that were granted by
the previous sovereigns, that is to say the King of Spain and
the Republic of Mexico.
Senator Campbell. In the treaty of 1848, the Hidalgo
Treaty, did the Native peoples have any voice at all in that
treaty?
Dr. Hordes. Well----
Senator Campbell. In California what happened when the
Franciscan missionaries moved people around, Native peoples,
after a number of years they became known as ``mission
Indians.'' They almost lost their identity and were pretty much
indentured servants, and that is how all those missions in
California got built, as you probably know.
Dr. Hordes. Yes, sir.
Senator Campbell. You can still go to some of those old
missions in Monterey and San Juan Capistrano and so on and look
underneath the tiles of the roof and find the skin imprints of
Indians, where they bent the tiles, the wet tiles, over their
legs to make those tiles. They were not paid for it, by the
way, except in slop.
Mr. Leshy. Senator, if I could just add one thing to what
Dr. Hordes said. There is another element here. The key issue
is what was intended by the Spanish land grant in 1748. But in
1858, 10 years after the treaty, Congress confirmed that grant
by statute. So the Pueblo actually has a very credible argument
that that congressional confirmation in 1858 of the 1748 grant
really cements their title to this area.
Senator Campbell. Well, that is great. Between the
missionaries and the U.S. Congress, the Indians have sure fared
very well in the history of this country, I will tell you that.
Thank you, Mr. Chairman.
Dr. Hordes. Senator Campbell, may I respond to your
question about who negotiated the Treaty of Guadaloupe-Hidalgo?
It was negotiated between the representatives of the United
States and the representatives of the Republic of Mexico after
the defeat of the Mexican armies during the Mexican War of
1846.
Senator Campbell. Nevertheless, there was no voice of the
Native peoples involved in that, was there?
Dr. Hordes. Nor any of the Hispanic people in New Mexico,
either.
Senator Campbell. Thank you, Mr. Chairman.
Chairman Inouye. Senator Domenici.
Senator Domenici. Senator Campbell, I think you will find
that the Pueblo Indians in our State all have land. The
question is--and they have claimed the land and had it
validated to them for decades. The question is do they own some
more land beyond that. That is the situation here. The
situation here is this 10,000 acres, which you see every time
you come to Albuquerque. You just do not have it pointed out to
you.
Senator Campbell. I know where it is. It is up by the
tramway, so I can see it from the highway.
Senator Domenici. This committee here in this room adopted
a piece of legislation making it a wilderness, calling it
property of the United States of America, creating it as a
wilderness for everybody, the Indian people--and there are
trails up there and it is used by about a million people a
year.
This issue now is, after a significant amount of time, the
Indian people claim that they own most of that mountain. That
has never been adjudicated in court, although some preliminary
findings have been made in court. Now the effort is being made
to resolve the differences between the Indians' claim and what
obviously was a very substantial, if not ownership, claim of
the United States when we turned it into a wilderness area.
So that is what we are now talking about. This particular
group of Indian people have lands beyond this, have a very
major casino on a road that does not go all the way up there,
but is in that area. They are attempting to round out what they
perceive to be their holdings. They have had an opportunity to
go through the Claims Court and get money. I would assume--I do
not remember, but I assume they might have even done that. They
do have lands that have been perfected to them, and I think
they are very, very responsible people and we are going to all
try to work this out one way or another.
I do want to say, Mr. Leshy--and I will try to be brief--
you finally issued that Solicitor's opinion as you went out the
door on the 19th day of January, leaving the administration and
taking on your new chore of being a lawyer and whatever you do;
is that not right?
Mr. Leshy. Yes.
Senator Domenici. I mean, I am not insinuating anything,
although it sounds strange to me, with all the time you have
had, that it took you until the 19th day of January, when the
20th day of January you had no more authority. But you have
explained that to us, so thank you.
Now, Mr. Leshy, you talk a lot about all these other areas
in America where we have these joint uses. I have not looked
them up, but I think it behooves us to look at the agreement in
this joint use because it is very, very different from what my
staff tells me than others.
You see, both of these giants, the United States of America
and the Indian Pueblo, both want ownership. The problem is how
do we--we cannot have two ownerships. So we have tried to
create indicia of ownership and given some to one and some to
others, and hope that when we are finished they can live in
harmony and peace and all these wonderful uses that have been
occurring can continue forever, with nobody changing anything.
The Governor contends that we are better off having them
because we change our minds and he contends, I imagine, that
his people will never change their mind. I wonder about that. I
will ask him when he gets up here.
In any event, let me say the other issue is exclusive
right. There is a veto over any changes to be made. They are to
have, the Indians are to have, exclusive tribal hunting, not
New Mexico Fish and Game; jurisdiction over nontribal lands
that are within the periphery. Even though we will be clearing
the roads and the like, this agreement I believe has
jurisdiction over non-Indian lands. That is not illegal, it is
not preposterous, but it is certainly not very usual that, if
you did not have it, you would settle that in an agreement.
Normally it goes the other way.
There are parcels in this that are put in trust that are
inholdings, that I think could create some problems that would
not exist in a clean-cut situation.
So we do have a little bit to discuss, and I think if you
look at it from the standpoint of how we take different indicia
of ownership applied to our commonsense usage and the like and
fix this correctly for both--I think that is what we are really
trying to do.
My last question of you has to do with, do you have any
thoughts on whether or not Federal environmental laws should
have been complied with or do you have a way of explaining that
they are not applicable in this instance?
Mr. Leshy. Well, I think the way that provision that you
have referred to should be understood is this. The thing that
made this agreement possible, I think, and frankly the reason I
think it is such a good deal, is that the parties basically,
especially the Forest Service and the Pueblo and the
recreationists and the land owners, all essentially want the
same thing to happen here: that is, no development. They do not
want houses there, they do not want roads there. They want it
to be left alone.
So what you are really talking about, when you are talking
about how this area is going to be managed and who is going the
have what say over management, you are talking about a very
narrow range of management choices because the basic choice has
been made. This area is going to remain essentially
undisturbed.
So if you look at it in that context and say, well, we are
going to move forward with this essentially undisturbed kind of
management of this area, then whether the environmental laws
apply or not seems to me to be not nearly as important as in
most other situations, when you are really making fundamental
decisions of a different character.
So I think that is why one could justify not applying at
the initial stage, as I understand this agreement does, the
normal environmental processes.
Senator Domenici. Mr. Chairman, I have questions, I will
submit them to the Pueblo in due course, three or four.
Chairman Inouye. All right, sir.
May I ask another question for clarification, Dr. Hordes?
Dr. Hordes. Yes, sir.
Chairman Inouye. You stated that the Pueblos left that area
after the Pueblo Revolt and went to Hopi Land?
Dr. Hordes. Yes, sir.
Chairman Inouye. I did not want to give the impression that
they left voluntarily.
Dr. Hordes. No, no. There was, I guess the State Department
would call it, a frank exchange of views between the Spanish
who were retreating after the Pueblo Revolt and on their way
down--there was some hostilities between the Spanish and the
Indians.
Senator Campbell. ``Frank exchange of views'' sometimes
means at gunpoint, I think, Mr. Chairman.
Dr. Hordes. I beg your pardon?
Senator Campbell. I think ``frank exchange of views''
sometimes means at gunpoint.
Dr. Hordes. Yes, yes. There was hostilities initiated by
the Spanish against the Pueblo of Sandia, which did indeed
result in the abandonment.
Chairman Inouye. Did they not have many bloody battles and
massacres?
Dr. Hordes. Well, there were certainly hostilities on the
part of both Pueblo against Spanish and Spanish against Pueblo
during that period of the Pueblo Revolt of 1680. We can be here
for a couple of hours to discuss the causes of the Pueblo
Revolt, but there was an alliance of northern and southern
Pueblos that coalesced to attack some of the Spanish
settlements, as well as the capital at Santa Fe, which
stimulated the migration to the south, and there was the attack
on the part of the Spanish against the Pueblo of Sandia on
their way south that did indeed result in the migration of the
Pueblo to the west.
Chairman Inouye. Well, I am not an historian, obviously,
but what little I have read of the Pueblo Revolt leads me to
believe that before the coming of the Spaniards the Pueblos
were very peaceful people. They hardly had any arms for
fighting.
But may I, on behalf of the committee, thank you, Dr.
Hordes and Professor Leshy.
Dr. Hordes. Thank you.
Senator Campbell. May I ask one more question, Mr.
Chairman?
You said the Pueblo Revolt was 1680?
Dr. Hordes. Yes, sir.
Senator Campbell. Did that happen in several pueblos or one
pueblo? They threw some priests off a cliff at one of the
pueblos during that revolt?
Dr. Hordes. I am not aware of that specific incident,
Senator Campbell.
But if I may, I was ruminating on a question you had asked
me, Senator Inouye, and if I might respond, if I had any
additional comments on what Professor Leshy had said. If I may
just take a moment to comment on his observation about
ambiguity, there is not an event in human history that
historians do not have some kind of disagreement about. The
fact that historians disagree about something that happened in
the past is very common.
That does not mean that every event in human history is
ambiguous. I think that situation is very true here. My reading
of the documentation, the primary documentation, is one where
we see a very unambiguous account of what happened with the
granting and the recognition of the Pueblo's boundaries. The
fact that historians disagree with it I do not think interferes
with that status where it is not ambiguous.
The other comment I would like to make is with Professor
Leshy's comment that I am kind of a Lone Ranger on this issue.
With the exception of one or two affidavits on particular
issues, I have yet to see a formal, documented, expert
historical report responding to the conclusions that I reached
in 1996.
With regard to the notion that I am the only one that has
researched, reached these conclusions, I would refer you,
Senator, to the report of William Morgan, the report of Dr.
Frank Wosniak, the work of Professor Michael Meyer from the
University of Arizona, and even the work of Dr. Ward Allen
Menge, who has worked on behalf of the Pueblo. Dr. Menge came
to many of the same conclusions that I has as well. I would
just like the record to show that I am by no means the only one
what has come to this conclusion, Senator.
Thank you.
Chairman Inouye. On documentation that you speak of, there
must be Spaniard documentation or missionary documentation.
Were there any Pueblo documentations?
Dr. Hordes. The only records that remained were the ones
that were recorded by the government of the King of Spain. To
be certain, Pueblos had certain rights where they could sue and
be sued, they could petition the King, petition the Governor,
and there are copious, copious documentation to reflect
advocates for the Pueblo as well as the Pueblo representatives
themselves coming before Spanish colonial authorities to plead
their case. On many, many occasions the Spanish colonial
authorities indeed did rule in their favor.
Chairman Inouye. Thank you very much, sir.
Dr. Hordes. Thank you.
Senator Campbell. Mr. Chairman, the gentleman said that
historians disagree and that is absolutely true, but it has
always been in my view that they rarely take into consideration
tribal historians because they did not have a written language.
But I do not think they are any less valid, frankly.
Senator Domenici. Mr. Chairman, I would like just to take
one minute here. I did get John Leshy to acknowledge that he
filed a Solicitor's opinion on the 19th and I forgot to ask him
or state that that opinion overrode an opinion of the previous
Solicitor. So there is a Solicitor's opinion by Solicitor
Tarr--this is it--that said the opposite. As he left office, he
issued an opinion that overruled Tarr, thus making his the last
opinion, which I assume everybody now assumes we ought to buy,
although there has been at least three of these that have
happened where they overturn each other while they are in
office, which seems to me to mean that there is a little bit of
political input into these solicitors' opinions.
Thank you, Mr. Chairman.
Mr. Leshy. If I could, excuse me, just add one thing here.
There was an intervening event between the Tarr opinion and my
opinion and that was the decision of Judge Greene in the
district court. Remember, the United States defended the Tarr
opinion in the Clinton administration. We defended it for 5
years.
Judge Greene threw it out and said take another look, which
is why I wrote my opinion.
Chairman Inouye. Thank you very much.
Dr. Hordes. Thank you for the opportunity.
Chairman Inouye. May I now call upon the Governor of the
Pueblo of Sandia, Sandia Tribal Council of New Mexico, the
Honorable Stuwart Paisano. Governor Paisano, it is a pleasure
to have you here with us.
STATEMENT OF STUWART PAISANO, GOVERNOR, PUEBLO OF SANDIA,
SANDIA TRIBAL COUNCIL, BERNALILLO, NM
Mr. Paisano. Thank you, Mr. Chairman. Good afternoon,
Chairman Bingaman; Chairman Inouye; ranking members Murkowski,
Campbell; Senator Domenici, and members of the committee. On
behalf of the Pueblo of Sandia, I appreciate the opportunity to
testify today in order to encourage this committee to implement
a fair and just resolution to the Sandia Mountain issue. I have
a brief statement and request that my written statements be
admitted into the record.
Chairman Inouye. Without objection, so ordered.
Mr. Paisano. To our people, no issue is more important than
the protection of Sandia Mountain. For the Pueblo, it is a
matter of centuries-old religion and cultural traditions. It is
central to our beliefs, practices, and prayers. The mountain is
the only source for certain resources that we need for our
religious ceremonies. Our spiritual leaders routinely make
pilgrimages to the shrines on the mountain and leave offerings.
These shrines are located on the mountain from the foothills
all the way up to the crest.
Because of its significance to our religious and cultural
traditions, our people have always and will always believe the
mountain should remain wild and undeveloped. That is why we are
so grateful to Senator Domenici for his efforts to protect and
to preserve the mountain. His leadership in establishing the
Sandia Mountain Wilderness helped to ensure that the mountain
is not further developed, at least in the short term, by
commercial interests.
Chairman Bingaman, we want to thank you for your leadership
in introducing legislation that has brought us to this hearing.
We have made a number of painful concessions to resolve the
controversy. Despite confirmation of our Spanish land grant by
the U.S. Congress in 1858, we agreed in the settlement
agreement to: extinguish our title to the mountain, continue
the Forest Service administration of the mountain, permanent
easements over existing lands for public and private access,
disclaim any title to privately owned lands on the mountain.
We continue to adhere to these concessions in the agreement
even though the Federal Court of Appeals ruled in our favor and
the Interior Department Solicitor ruled that we hold title to
this mountain.
We believe that the settlement agreement in S. 2018
provided some major benefits to all interested parties. First,
the mountain will be preserved and protected forever. The
Pueblo is absolutely committed to protecting the mountain and
we agree that the preservation of the wilderness system is a
national priority.
We have agreed that all commercial uses, including gaming,
mineral, timber production, would forever be prohibited. Our
concern is that national policy may change direction, as often
happens when Native Americans are involved. We feel strongly
that the perpetual preservation of the wilderness will be best
served by giving the Pueblo the right to consent to all new
uses of the mountain should the Forest Service ever consider
permitting new uses.
Second, the agreement and legislation both recognize the
Pueblo's rights and interests in the mountain. Over 200 years
ago, the King of Spain memorialized our ownership of the
mountain in a written grant. This grant was confirmed by the
U.S. Congress in 1858. The grant set our eastern boundary at
the main ridge called Sandia. No subsequent act of Congress has
ever extinguished our rights to the mountain.
The mountain settlement and S. 2018 both codify the
public's right to use of the mountain and continue our
centuries-old traditions. This simple acknowledgment, confirmed
by the U.S. Department of the Interior as recently as last
year, is essential to a legislative solution.
Third, the agreement and legislation will protect and
enhance access to the mountain for the Pueblo and for the
public. We realize that Sandia Mountain is not only important
to the Pueblo, but also to the public at large. The settlement
agreement and S. 2018 both enhance access for the public by
granting permanent rights of way over existing lands to
trailheads, picnic areas, and other public places.
The agreement and legislation will finally allow us to stop
litigating over the mountain and to focus on preserving and
enjoying it.
There is only one certain way to avoid future litigation.
That is for Congress to pass ratifying legislation before the
settlement agreement terminates on November 15. We are here
today precisely because we want to work with you, Chairman
Bingaman, Senator Domenici, and members of the committees, to
achieve that goal.
We do not mean the disparage our friends' and neighbors'
interests by preserving the mountain, but not only might the
public's sentiment to protect the mountain change over time,
their interests simply cannot be compared to the obligation
that we feel after centuries of religious and traditional
practice, nor does it equate to our ownership rights to the
mountain.
S. 2018 makes a number of significant changes in the
settlement the Pueblo agreed to, none of which are favorable to
our interests. We believe the settlement agreement should be
enacted as written. If it is not and if we are forced to accept
modifications that are detrimental to our interests, we believe
that it is only fair and just that the Pueblo should receive
benefits in return.
In our written testimony we have discussed a number of
changes we would like to see adopted. Mr. Chairman, we have
heard some people criticize the settlement agreement as
dangerous precedent. This is not so. We know of no other
present situation where a national forest has been mistakenly
established on lands owned by an Indian tribe, where the
original grant to the tribe had been confirmed by an act of
Congress, and where courts have always read this very language
to convey title to a tribe.
Before concluding, I would like the members here to know
that we are willing to work with the committees and all parties
in good faith to resolve the mountain issue. We want a
solution. We cannot accept, however, or support, any solution.
We simply cannot abandon our deeply-held beliefs or fail in our
sacred responsibilities to generations past, to generations to
come. We are committed to finding a resolution that provides
fairness and justice to the Pueblo.
Thank you for the opportunity to share our views and I will
be happy to try to answer any questions that the committee may
have.
[The prepared statement of Mr. Paisano follows:]
Prepared Statement of Stuwart Paisano, Governor, Pueblo of Sandia,
Sandia Tribal Council, Bernalillo, NM
Good afternoon, Chairmen Bingaman and Inouye, Ranking Members
Murkowski and Campbell, Senator Domenici and Members of the Committees.
On behalf of the Pueblo of Sandia, I appreciate the opportunity to
testify today in order to encourage this Committee to implement a fair
and just resolution to the Sandia Mountain issue.
To our people, no issue before these Committees or this Congress
could ever be more important than the protection of Sandia Mountain.
For the Pueblo, it is not a matter of dollars and cents; rather, it is
a matter of our centuries-old religious and cultural traditions.
Our people have been living on and using the Mountain for at least
600 years. It is central to our beliefs, practices, and prayers. The
Mountain is the only source for certain resources we need for our
religious ceremonies. Our spiritual leaders routinely make pilgrimages
to the shrines on the Mountain and leave offerings. These shrines are
located on the Mountain, from the foothills all the way to the crest.
To say that the Mountain is special or sacred to our people does
not do it justice. Everyone at the Pueblo of Sandia, all those who came
before us, and all who will follow us, will always hold this Mountain
central in our hearts.
The United States Congress in an 1858 statute confirmed our Spanish
land grant as extending to ``the main ridge of Sandia Mountain.'' From
a legal standpoint, these words refer to the Mountain's summit. The
Supreme Court read these same words in an 1855 treaty concluded just
three years earlier with the Yakima Tribe to mean a mountain's summit.
Northern Pacific Ry. Co. v. United States, 227 U.S. 355 (1913). The
federal courts have read similar language in grants just to our south--
to private landowners and the Isleta Pueblo--as conveying title to all
lands to the summit of a mountain.
Because of its vital and irreplaceable significance to our
religious and cultural traditions, the Pueblo of Sandia has always
believed that the Mountain should remain wild and undeveloped. That is
why we are so grateful to Senator Domenici for his efforts to preserve
the Mountain. His leadership in establishing the Sandia Mountain
Wilderness has helped to ensure that the Mountain is not further
developed, at least in the short term, by commercial interests.
Chairman Bingaman, we want particularly to thank you for your
leadership in introducing S. 2018 that has brought us to this hearing.
If we are going to protect Sandia Mountain, we need to act now to work
out any differences before the settlement agreement we reached two
years ago with the United States expires on November 15.
This settlement agreement was reached after extensive negotiations
between the Pueblo, the Sandia Peak Tram Company, and the Departments
of Justice, the Interior and Agriculture. Representatives of Bernalillo
County, the City of Albuquerque and a coalition of homeowners and users
of the Mountain participated for nearly a year in these negotiations,
but withdrew prior to their conclusion to pursue further litigation,
and refused to sign the agreement.
We made a number of painful concessions to resolve the controversy.
The other parties made concessions as well. Despite confirmation of our
Spanish land grant by Congress, we agreed in the settlement agreement
to:
1. United States title and continued Forest Service
administration of the Mountain;
2. Continued public access to the Mountain;
3. Extinguishment of our title to the Mountain, subject to
recognition of our rights and interests as set forth in the
settlement agreement;
4. Easements over our existing lands for roads and trails to
the Forest Service facilities and two of the private
subdivisions on the Mountain, and also to a utility corridor to
the subdivisions;
5. Disclaim--as we have always done--any title to privately-
owned lands on the Mountain.
We continue to adhere to these concessions and to the agreement,
even though since we signed it, the federal court of appeals ruled in
our favor and the Interior Department Solicitor has determined that we
hold title to the Mountain.
We believe S. 2018 should be amended to more closely track the
settlement agreement. First, however, I would like to highlight some of
the major benefits the settlement and S. 2018 provide for everyone.
the mountain will be preserved and protected forever
The Pueblo is steadfastly and absolutely committed to protecting
the Mountain. And we agree that preservation of the wilderness system
is a national priority. For that reason, the Pueblo has committed to
perpetual maintenance of the wilderness portions of the Mountain as
wilderness--with strict adherence to the wilderness laws as they exist
today. We have agreed that all commercial uses, including of course
gaming, as well as mineral and timber production, would be forever
prohibited on all parts of the Mountain. We fear existing laws
protecting wilderness could change. Our concern is that policy may
change direction, as has often occurred when Native Americans are
involved. We want to protect the Mountain not for just the next 25, 50,
or even 100 years; we want to protect it forever. We therefore feel
very strongly that perpetual preservation of the wilderness will be
best served by giving the Pueblo a right to consent to all new uses of
the Mountain should the Forest Service ever consider permitting new
uses (which we hope they would not). We are committed to protecting
this consent power, which is included in both the settlement agreement
and S. 2018.
the agreement and legislation both recognize the pueblo's rights and
interests in the mountain
As noted in the settlement agreement, over 250 years ago the King
of Spain memorialized our ownership of the Mountain in a written grant.
This grant was confirmed by the United States Congress in 1858. The
grant set our eastern boundary as the ``main ridge called Sandia.'' No
subsequent Act of Congress has ever extinguished our rights in the
Mountain.
The settlement and S. 2018 both codify the Pueblo's right to use
the Mountain to continue our centuries-old traditions. This simple
acknowledgment, confirmed by the U.S. Department of the Interior as
recently as last year, is essential to any settlement legislation we
could support.
the agreement and legislation will protect and enhance access to the
mountain for the pueblo and the public
We realize, Mr. Chairman, that Sandia Mountain is not only
important to the Pueblo, but also to the public at large. We have no
desire to prevent the public from enjoying the Mountain's beauty and
serenity. Like the settlement agreement, S. 2018 allows public access
to all parts of the Mountain. Thus, if S. 2018 passes, hikers, hang-
gliders, and all sorts of other recreation-seekers will be able to
continue to enjoy the Mountain with the same freedom they do today. In
fact, the settlement agreement and S. 2018 both enhance access for the
public by granting permanent rights-of-way over our existing lands to
trail heads, picnic areas, and the like. This grant of permanent and
secure access was a major concession made by the Pueblo and cannot be
achieved through continued litigation.
We have heard some people criticize the settlement as a dangerous
precedent. This is not so. We know of no other present situation where
a National Forest has been mistakenly established on lands owned by an
Indian tribe, confirmed by an Act of Congress, and where courts have
recurrently read this very language to convey title to a tribe. Under
the settlement agreement and S. 2018, the Forest Service would continue
to administer the Mountain and its wilderness, as it does today,
notwithstanding our land grant.
the agreement and legislation both confer specific rights on the
parties involved and, as a result, will finally allow us to stop
litigating over the mountain and to focus on preserving and enjoying it
Like most area residents who enjoy the Mountain, we want to put a
long period of litigation and disharmony behind us. We have heard and
read critics of the settlement agreement complain that the agreement is
vague and will lead to future litigation. This charge--made by some of
the same individuals and groups that withdrew from the settlement
discussions--is simply untrue. There is only one certain way to avoid
further litigation; that is for Congress to pass ratifying legislation
by November 15 of this year, when the settlement agreement terminates.
We are here today precisely because we want to work with you--Chairman
Bingaman, Senator Domenici, and Members of the Committees--to achieve
that goal.
Before S. 2018 is enacted, however, there are several amendments we
would like to see adopted. These changes would help to make the bill
more closely reflect the settlement agreement we worked so hard to
reach with the Government and Tram Company.
First, we oppose the provision, Sec. 4(c)(3), which gives Sandoval
and Bernalillo Counties the authority to consent or to withhold consent
for new uses in the area. It appears that this provision is designed to
level the playing field since the Pueblo was granted an identical
consent authority in the settlement agreement and in the bill. Despite
the superficial appearance of equality, this grant of authority to the
counties is not justified.
Unlike the Pueblo, the counties do not have property interests in
the Mountain. Also in contrast to the Pueblo, the counties do not feel
any sacred responsibility to protect the Mountain. We do not mean to
disparage our friends' and neighbors' interest in preserving the
Mountain for public enjoyment. But not only might public sentiment to
protect the Mountain change over time--their interest simply cannot be
compared to the obligation that we feel after centuries of religious
and traditional practice, nor does it equate to our ownership rights to
the Mountain.
More generally, S. 2018 makes a number of other significant changes
in the settlement the Pueblo agreed to, none of which are favorable to
our interests. For example, the settlement recognized the Pueblo's
exclusive authority to regulate hunting by our members on lands within
the Area owned by the United States, and would have taken into trust
lands we purchased in the Evergreen Hills subdivision, using several
million dollars of our own funds. S. 2018 removes these provisions, and
makes other changes unfavorable for us. We believe the settlement
agreement should be enacted. If it is not, and if we are forced to
accept these and other changes S. 2018 makes to the settlement, the
Pueblo should receive commensurate benefits in return.
One possibility would be to add a specific land exchange provision
to S. 2018, building on the concept in Section 14(c). We have discussed
this approach with Committee staff and a number of parties. Last week,
the Commissioners of Sandoval County voted unanimously in favor of an
exchange involving all federal wilderness lands within the Sandoval
County portion of the claim area. We are willing to consider this and
other similar land exchange proposals so long as they preserve and do
not diminish our interests in the Area.
Finally, I attach a number of other, more technical amendments.
Before concluding, I would like the Members here to know that we
are willing to work with the Committees and all parties in good faith
to fairly and justly resolve the Mountain issue. The years of
litigation, the settlement negotiations, the legislative efforts to
date--all have been time-consuming and costly. We want a solution. We
cannot, however, support any solution. We simply cannot abandon our
deeply-held beliefs or shirk our sacred responsibilities to generations
past and generations to come. We are committed to finding a solution
that provides fairness and justice to the Pueblo. Although it is not
our preference--as our involvement in the settlement makes clear if
acceptable legislation cannot be adopted by November 15, we will first
explore further options for settlement in good faith with the federal
agencies and Tram Company. If that fails, we will then seek
implementation of the Solicitor's opinion confirming our title. If we
are compelled to do so, we will not hesitate to return to the courts,
where we have been very successful so far.
Thank you again for calling this hearing and for giving all of the
affected parties this opportunity to explore a legislative solution. I
appreciate the opportunity to testify on behalf of the Pueblo of
Sandia. I would be happy to try to answer any questions the Committee
might have.
APPENDIX
Section 3(b) should be amended to specify the 100 feet is ``linear
feet'' and not feet above mean sea level, so that there is no possible
ambiguity.
In Section 4(c), a new Section 4(c)(4) should be added reading as
follows:
``Administration of the Area shall not be subject to the Forest
and Rangeland Renewable Resources Planning Act of 1974 (88
Stat. 476), as amended by the National Forest Management Act,
16 U.S.C. Sec. Sec. 1600-1614, or to the Forest Service
planning regulations at 36 C.F.R. Sec. 219, or to amendments to
these acts and regulations. The Area shall continue to be
administered by and remain a part of the Cibola National
Forest, but it shall not be subject to the Cibola National
Forest Land and Resource Management Plan.''
The Pueblo needs to be certain the Management Plan is not
foreclosed by any of these authorities.
In Section 4(d), the words ``of the Senate'' should be added at the
end of the second sentence.
Section 4(e) should be preceded with the language ``Except as
provided in Section 14 of this Act.''
At the end of Sections 4(g), add the words ``except as provided in
Section 14 of this Act.''
In Sections 5(a)(5) and 9(a), add ``and section 14.''
Section 6(a)(1) should be preceded by the words ``Except as
provided in Section 14 of this Act.''
In Section 6(b), substitute ``section 5(a)'' for ``section
5(a)(4).''
In Section 7(b)(2)(C), insert ``of'' after ``use.''
In Section 9(a), add ``and 14'' after ``8.''
In Section 10(d), substitute ``within'' for ``with.''
Chairman Inouye. Thank you very much, Governor Paisano.
In this settlement, Governor, you are giving up your
property interest in Sandia Mountain and you have also
disclaimed any interest in the private land and homes that have
been built in this area, is that not so?
Mr. Paisano. Yes, sir.
Chairman Inouye. What are benefits that this agreement will
give you or your tribe?
Mr. Paisano. Mr. Chairman, some of the benefits that the
Pueblo of Sandia and my community would be able to get from the
settlement is the name recognition in our native language; it
would give us a consent for new uses only if the Forest Service
were ever able to come to the Pueblo and ask us for new
services. That is so important to my community because we have
seen what has happened when areas of cultural significance and
traditional places are threatened by development.
Chairman Inouye. That is why you want the right to consent
to new uses?
Mr. Paisano. That is correct, sir.
Chairman Inouye. Have you received any interest in new uses
that concern you?
Mr. Paisano. No, sir. I believe that the Forest Service,
and not speaking on behalf of them, but has not received over
the past 25 years any applications for new uses. From the
Pueblo of Sandia's behalf, we do not intend to ask for any new
use services that we would like to see in the mountain range.
We want to protect and preserve it as it exists today.
Chairman Inouye. If by some decision here the committee
decided not to make any changes, would that make you against
this measure?
Mr. Paisano. Mr. Chairman, I do not believe so.
Chairman Inouye. You can live with no change?
Mr. Paisano. Well, during the settlement, when we initially
started off this quest, our Pueblo had to take a stance and
take a look at what we actually wanted and what our goals were.
Our goal was to protect and preserve this mountain. That is the
reason why we entered into the settlement agreement, in light
of some of the things that we had in our back pocket that were
afforded to us, whether it is a Solicitor's opinion or whether
it is a court's opinion.
As common people and Native American people, it is our
obligation to protect and preserve what has been rightfully
ours for centuries and a language, a culture, and a tradition
that we followed for centuries. That is so important to us as a
people so that we can continue in existence for future
generations.
Chairman Inouye. I thank you very much, Governor.
Senator Campbell.
Senator Campbell. I was wondering, what is the English
translation of what you call that land?
Mr. Paisano. Green Reed Mountain.
Senator Campbell. One last question, alluding to some of
the things you already asked, Mr. Chairman. Are there any non-
negotiable issues for the Sandia Pueblo in this negotiated
agreement?
Mr. Paisano. I believe in Senator Bingaman's bill, S. 2018,
there are provisions in there that the Pueblo has been asked to
concede a little bit more, in light of bringing aboard some of
the other interested parties with regard to the mountain claim.
The Pueblo is willing to listen to some of those concerns, but
when we first started out in the settlement agreement, Senator,
we started out like this [indicating], and gradually we have
gone like this [indicating].
Senator Campbell. So the comment that Senator Domenici made
a while ago about the Pueblo having veto power over any use,
that to you is one of the non-negotiable areas?
Mr. Paisano. Yes, because our goal is to protect and
preserve it.
Senator Campbell. I see.
Thank you, Mr. Chairman.
Chairman Inouye. Senator Domenici.
Senator Domenici. Governor, it is good to see you up here.
I am hopeful that this issue will be resolved in the not too
distant future and you will have less frowns on your forehead.
I have not been to your new facilities. Who knows, I may find
my way up there one of these evenings----
Mr. Paisano. We will be happy to have you, sir.
Senator Domenici [continuing]. When we get this resolved.
There are a couple of things that are bothering outside
groups. Tell me how you understand the hunting rights in terms
of what you have agreed to, and who is complaining and what is
their complaint, if you know?
Mr. Paisano. Senator Domenici, I am not an attorney and I
do not intend to be one. Let me speak from layman's terms, I
guess. With regards to hunting, hunting is very important to
the Pueblo of Sandia. Hunting is not a sport to us. Hunting is
part of our culture and our tradition.
We have asked for hunting rights to be allowed for our
members and our community because it bears fruit for us. It
bears a source of food and a sense of healing. It is my
understanding that hunting has been allowed by the United
States, by the Forest Service, in this particular area that
falls underneath the jurisdiction of the State of New Mexico
under Game and Fish. We have asked the Game and Fish Department
to allow our members to hunt in this particular area.
It is my understanding in the settlement and talking with
the State Game and Fish, they do not have a problem with
allowing the Pueblo to hunt for traditional cultural purposes.
They would like to define an area that is not a gray area. They
want to protect their jurisdictional issues and their police
powers, they would like a fine line drawn as to where the
Pueblo members would be allowed to hunt and where they would
not be allowed to hunt. We believe that we----
Senator Domenici. As to the rest, the New Mexico Game and
Fish rules and regulations would govern?
Mr. Paisano. That is correct.
Senator Domenici. That is what is being discussed now?
Mr. Paisano. As we speak, sir.
Senator Domenici. Okay. Do you know how it is in 2018? Is
that the way it is, Counsel? or Senator Bingaman?
[Pause.]
Senator Domenici. Well, we will look at it. Senator
Bingaman's expert says it is pretty close to that.
Senator Campbell. If I might ask, Senator, that means they
could hunt but not guide non-Indian hunters or something of
that sort?
Mr. Paisano. That is correct.
Senator Campbell. This is only for tribal members.
Mr. Paisano. Only for tribal members, sir.
Senator Domenici. Yet there would be hunting for others,
but that would be totally governed by Fish and Game, New Mexico
Fish and Wildlife. I assume on that latter, Fish and Game would
have the jurisdiction to determine whether there is sufficient
game to be hunted? Sometimes they close areas and the like. You
recognize that authority with reference to the lands that they
would be in control of?
Mr. Paisano. Absolutely, sir.
Senator Domenici. I have no further questions. I may send
two or three of them to you, to be answered in due course.
Chairman Inouye. Governor, we thank you very much, sir.
Mr. Paisano. Mr. Chairman, Senator Domenici, we look
forward to working with each and every one of you once again,
because this is the most important thing to my community and we
would like some type of resolution so that we can continue
living in good peace and harmony in the State of New Mexico.
Thank you.
Senator Domenici. Thank you.
Chairman Inouye. Our last panel consists of the following:
the county commissioner of Bernalillo County, of Albuquerque,
Mr. E. Tim Cummins; Ms. Anita P. Miller, Esquire, Sandia
Mountain Coalition of Albuquerque; Mr. Walter E. Stern,
Esquire, representing Sandia Tram Company, of Albuquerque, New
Mexico; Mr. Edward Sullivan, executive director, New Mexico
Wilderness Alliance, of Albuquerque; and Mr. Guy Riordan,
owner, Piedra Lisa Tract, of Albuquerque.
Commissioner Cummins, welcome, sir.
STATEMENT OF E. TIM CUMMINS, COUNTY COMMISSIONER, BERNALILLO
COUNTY, ALBUQUERQUE, NM
Mr. Cummins. Thank you, Mr. Chairman. Mr. Chairman and
Senators, Senator as the case may be, as they have left: We are
deeply grateful for the opportunity you have given the county
of Bernalillo to appear before this joint committee on an issue
that is so vitally important to the residents of all our
community.
The area claimed by the Sandia Pueblo sits on the east edge
of the county of Bernalillo, which lies adjacent to the city of
Albuquerque, the largest city in the State of New Mexico. The
claim area runs from the east edge of the County of Bernalillo
at the 5,000-foot elevation all the way to the top of the
Sandia Mountain at a 10,000-foot elevation. The area claimed by
the Sandia Pueblo has been used by Native American and non-
Native Americans as a place for spiritual solace, residential
living, recreation, and many other uses for many years.
The county of Bernalillo, the Sandia Mountain Coalition,
the Pueblo all agree that there should be the preservation of
the land, access by the Pueblo for traditional and cultural
purposes, no new commercial development of the national forest
lands within the claim area, permanence of the agreements, an
end to litigation, and presentation of these shared goals to
you.
The county itself has consistently fought--sought, I am
sorry--final settlement of the Sandia Pueblo claims to the
title area, be they past, present, or future, equal rights to
public access, recreational use and management of the forest,
maintenance of the character of the area, confirmation in
perpetuity of public right of way, roads easements, including
access easements to accommodate future utility and
communications technology, a guarantee of clear title to the
subdivision home owners and subdivision land owners, and
recognition of county authority over subdivisions within the
area, such as zoning, public safety, including police and fire
services, environmental issues, including water, waste water,
and taxation.
However, the county of Bernalillo and the Pueblo of Sandia
differ on the means to the end and differ on the language to be
used in the documents to effect these goals. With regard to S.
2018, the county of Bernalillo recognizes it as an attempt to
further close the gap that still exists between the county and
the Sandia Pueblo with regard to total settlement of the issues
regarding equitable use of the claim area by all parties.
This issue has been discussed and debated since 1988. We
now have the opportunity to settle these issues with
permanence. Although S. 2018 contains many items the county of
Bernalillo has requested and agreed to, there are still some
issues we feel are necessary to make the legislation work with
permanence. By permanence, we mean without resort to the
courts.
One, the veto power over uses by the county of Bernalillo
unilaterally, the county of Sandoval unilaterally, or Sandia
Pueblo unilaterally is of great concern to us. Any of these
three parties can veto a new use by themselves. There is no
further discussion or appeal process provided for in the veto
power.
Several questions come to mind. What is a new use? We have
certainly talked with Senator Bingaman's staff and Senator
Domenici's staff about how important it is to define what new
uses are so that we know exactly what the veto rights might
pertain to. Is providing handicapped access to a parking area
considered a new use or not? Is providing handicapped access to
existing trails new uses or not? We have questions regarding
what new uses are, and right now there is no limitation to
that.
Two, the county of Bernalillo feels strongly that this
settlement agreement and the management act be decoupled from
the legislation. Let me explain this. Whenever the county of
Bernalillo, the city of Albuquerque, or the Sandia Mountain
Coalition and the Pueblo sat together in the final days of the
mediation effort, we all agreed on the issues. We all agreed
verbally and we have agreed many times since then. However,
when the agreed-to resolutions of the issues were placed on
paper the parties could not agree on the language due to
obvious ambiguities that still existed.
We in effect would be turning over the claim area in fee
simple to the Pueblo of Sandia in future years with the
language that was in the settlement agreement. The Pueblo would
not change any of the language, which left us no alternative
but to leave the mediation. That language still has not changed
in the settlement agreement or the management act.
We think the legislation presented here should be the
controlling document. Some examples are: the word ``trust'' in
the title and within the document, without definition. Although
some of the language has changed in the legislation, there are
still places where language is still not parallel for the
public and for the Pueblo of Sandia. We cite some in my
testimony.
As everyone who has spoken today, I would certainly hope
that our written comments would be incorporated into the record
as well as my oral comments.
[The prepared statement of Mr. Cummins follows:]
Prepared Statement of E. Tim Cummins, County Commissioner,
Bernalillo County, Albuquerque, NM
Chairman Bingaman and Senators: We are deeply grateful for the
opportunity you have given the County of Bernalillo to appear before
this Senate Committee on an issue that is so vitally important to all
residents of our community. The area claimed by the Sandia Pueblo sits
on the east edge of the County of Bernalillo within which lies the City
of Albuquerque, the largest city in the State of New Mexico. The Claim
Area runs from the east edge of the County of Bernalillo at a 5000-foot
elevation all the way to the top of the Sandia Mountain at a 10,000-
foot elevation.
The area claimed by the Sandia Pueblo has been used by Native
American and non-Native Americans as a place for spiritual solace,
residential living, recreation, and many other uses for many years. The
County of Bernalillo, the Sandia Mountain Coalition, and the Pueblo
agree that there should be preservation of the land, access by the
Pueblo for traditional and cultural purposes, no new commercial
development of National Forest lands within the Claim Area, permanence
of the agreements, an end to litigation, and presentation of these
shared goals to you.
The County itself has consistently sought final settlement of the
Sandia Pueblo claims to title of the area, be they past, present or
future; equal rights to the public for access, recreational use and
management of the forest; maintenance of the character of the area;
confirmation in perpetuity of public right-of-way, roads and easements,
including access easements to accommodate future utility and
communication technology; a guarantee of clear title to subdivision
homeowners and subdivision landowners, and recognition of County
authority over subdivisions within the area such as zoning, public
safety including police and fire services, environmental issues
including water and wastewater, and taxation.
However, the County of Bernalillo and the Pueblo of Sandia differ
on the means to the end and differ on the language to be used in the
documents to affect these goals.
With regard to Senate Bill 2018, the County of Bernalillo
recognizes it as an attempt to further close the gap that still exists
between the County and Sandia Pueblo with regard to total settlement of
the issues regarding equitable use of the Claim Area by all parties.
This issue has been discussed and debated since 1988 and we now have
the opportunity to settle the issues with permanence.
Although Senate Bill 2018 contains many items that the County of
Bernalillo has requested and agreed to, there are still some issues
that we feel are necessary to make the legislation work with
permanence. By permanence, we mean without resort to the courts:
1. The veto power over new uses by the County of Bernalillo
unilaterally, the County of Sandoval unilaterally, or Sandia Pueblo
unilaterally is of great concern to us. Any of these three (3) parties
can veto a new use by themselves. There is no further discussion or
appeal process. Is a handicapped ramp a new use? Is a new trail a
``new'' use? (p. 7, Sec. 5(a)(3)).
2. The County of Bernalillo feels strongly that the Settlement
Agreement and the Management Act be ``decoupled'' from the legislation.
Let me explain this.
Whenever the County of Bernalillo, the City of Albuquerque, the
Sandia Mountain Coalition, and the Pueblo sat together in the final
days of our mediation efforts, we all agreed on the issues. However,
when the agreed-to resolutions of issues were placed on paper, the
County of Bernalillo, the City of Albuquerque, and the Sandia Coalition
could not agree to the language due to obvious ambiguities in the
language that still existed. We, in effect, would just be turning over
the Claim Area in fee simple to the Pueblo of Sandia in future years
with that language. The Pueblo would not change any of the language
which left us no alternative but to leave the mediation. That language
still has not changed in the Settlement Agreement and the Management
Act. We think the legislation presented here should control.
Some examples of this are:
a) The use of the word ``Trust'' without definition. (Define
``Trust'' on page 4, Section 3 (o.))
b) Although some of the language has been changed in this
legislation, there are still places where language is still not
``parallel'' for the public and the Sandia Pueblo. Section
4(a)(1) and 4(a)(3) on page 6 should state that we recognize
and protect in perpetuity the Pueblo's rights, interests and
uses in and to the Area. Section (a)(3) should also read we
recognize and protect in perpetuity the public's longstanding
rights, interests, and uses in and to the Area.
3. The Act states there is no exemption from applicable federal
wildlife protection laws but an exemption to that exemption does not
allow prosecution if a person exercises traditional and cultural use
rights. For safety and other purposes, particularly sport hunting, how
broad is this? (p. 11, Sec. 6, lines 11-25)
4. There is always complexity involved when discussing and setting
criminal and civil jurisdiction. Certainly this places unwary residents
in a very difficult position. The County thinks the present system of
criminal jurisdiction would work best. The Sandia Pueblo should only
have jurisdiction over crimes classified as misdemeanors. The Sandia
Pueblo should have no jurisdiction over crimes committed by non-Native
Americans. (p. 12, Sec. 7)
The County of Bernalillo, again for safety of all residents, has
concerns regarding jurisdiction over sport and recreation hunting. We
think that the Pueblo's regulations being ``substantially similar'' to
those of New Mexico State Game and Fish is going to be problematic. Who
will enforce these ``substantially similar'' regulations? (p. 14, Sec.
7(b)(3)(B)) This sport and recreational hunting Section may have to
have its own separate civil and criminal jurisdiction ``spelled out.''
5. I believe all parties should have their attorneys fees
reimbursed for working on these issues that have benefited the general
public. I understand there is past precedent to do this with these
types of issues.
There are other issues such as the non-applicability of new federal
laws or amendments to existing federal laws that will not apply to the
Claim Area (p. 7 and p. 9); the payment of money to the Pueblo should
Congress ever diminish the wilderness of the Claim Area (p. 10, lines
17-25); and the withdrawal of the Leshy opinion and the vacation of
Judge Greene's opinion.
It is very disturbing to the County of Bernalillo that we have been
led to a resolution of these very important issues based on court
decisions that were never the result of any hearing on the merits of
the claim.
However, in the spirit of cooperation, we merely ask that this
legislation be developed in a manner that will allow all residents of
Bernalillo County, the City of Albuquerque, the Pueblo of Sandia, and
other jurisdictions, permanent and equal access to the Claim Area for
each of their legitimate purposes. This will allow all of us to live in
harmony as we have for so many years.
Chairman Inouye. You may be assured that all of your
prepared statements are made part of the record.
Mr. Cummins. Thank you very much.
But there are differences in the settlement agreement where
interests and uses in and to the property ``pertain'' to one
party, and for the other party they are ``recognize and protect
in perpetuity.''
There are differences in the language that caused us
concern and that certainly we think can be resolved by letting
the legislation be the controlling act.
The act states there are no exemptions from applicable
Federal wildlife protection laws, but an exemption to that
exemption does not allow for prosecution if a person exercises
traditional cultural use rights. For this, safety, and other
purposes, particularly sport hunting, how broad is this?
The issue which has been questioned here today is that of
concurrent jurisdiction. Our reading and understanding of the
legislation is that it certainly provides for concurrent
jurisdiction, and there are always some complexities of that.
Who has jurisdiction? We are talking about for specifically
misdemeanors, as Federal felonies are all matters of district
court. But for misdemeanors, do tribal police have authority
over other nontribal Indian tribe members or members of non-
Indian tribes altogether? There are those issues that revolve
around concurrent jurisdiction.
The county of Bernalillo, again for the safety of all
residents, has concerns over jurisdiction for sport and
recreational hunting. We think that the Pueblo's regulations
being substantially similar to those of New Mexico State Game
and Fish is going to be problematic. Who will enforce
``substantially similar'' regulations? We think that is a
difficult term. The sport and recreational hunting section may
have to have its own separate civil and criminal jurisdiction
spelled out.
In terms of compensation, and there are several precedents
that I think some of the parties will speak about, I would hope
that all the parties have their attorneys' fees reimbursed for
working on these issues that have benefited the general public.
I understand there is past precedent to these issues.
There are other issues, such as the nonapplicability of new
Federal laws or amendments to existing Federal laws that will
not apply to the claim area; the payment of money to the Pueblo
should Congress ever diminish the wilderness of the claim area;
and the withdrawal of the Leshy opinion and vacation of Judge
Greene's opinion.
I guess in wrapping up our position, there is the past, the
present, and the future. As far as the past is concerned, I
appreciate Senator Bingaman's comments. There is not much we
can do about the past, but our only concern is that this case
has never been heard on the merits.
I think in the present, in the spirit of cooperation, we
ask the legislation be developed in a manner that will allow
all the residents of the city of Albuquerque, the Pueblo of
Sandia, and other jurisdictions permanent and equal access to
the claim area, and we believe it is important that this issue
be resolved legislatively.
In closing, I would like to comment. I believe that--and I
know that in hearings and in situations everyone focuses on the
differences that we have, but I think it is important to
realize that we have agreed on probably 90 percent of the
issue. I think this issue can be very close to being resolved.
We certainly do appreciate the Pueblo's efforts and the
concessions they have made, and they have made genuine
concessions on the issue. I hope that we can move forward and
close the remaining gap of what our concerns are.
Thank you, Mr. Chairman.
Chairman Inouye. I thank you very much, Mr. Commissioner.
May I now recognize Ms. Miller.
STATEMENT OF ANITA P. MILLER, CO-CHAIR, SANDIA MOUNTAIN
COALITION, ALBUQUERQUE, NM
Ms. Miller. Thank you, Mr. Chairman. Senator Inouye,
Senator Domenici, and representatives of the other Senators
present: We are very grateful for the opportunity to appear
today on behalf of the Sandia Mountain Coalition on this issue
of major importance to our members, to Bernalillo County, and
all of those who enjoy the Sandia Mountain and its wilderness.
I would like to introduce Bill Kiley, who is my co-chair of
the Sandia Mountain Coalition who has come with me today.
We have always sought a fair legislative settlement that
respects the Pueblo's reverence for the mountain, its cultural
use of the mountain, and its fears of overdevelopment, which
are all interests which we share as well. We do not want to see
a settlement or legislation go down at the expense of private
property rights or the public interest.
Our goals have always been to make sure that the title to
private property is cleared. It is now under a cloud. We want
road and utility access. It is not now guaranteed. We would
like to have our own access and the access of the general
public guaranteed forever. We want permanent settlement of
these issues.
I want to thank Senator Bingaman for addressing these
issues. Three out of the four we believe have been resolved.
The fourth issue is the issue of permanence and that is what I
am going to speak to today.
Who are we? We are an unincorporated association of
property owners whose land is within the exterior boundaries of
the Sandia claim area. You can see on the model there, the
little squares are where we are. Sandia Heights North
subdivision and Tierra Monte are in Bernalillo County,
represented by Commissioner Cummins. The Evergreen Hills
subdivision is a subdivision that is largely unoccupied. It is
in Sandoval County and has no utilities, although it does have
access.
Other members are residents of Bernalillo County who are
recreational users of the forest, and of course we also
represent to some extent Mr. Riordan who will be testifying
later, but only as a general policy owner.
We have been under a cloud since the claim was first
asserted formally in 1988. It takes us longer to sell our homes
than other homes which are similarly situated. We are getting
less money for our homes. We are 16 years older. We want this
settled so that we can go on with our lives.
We have been considered mere intervenors in the legislation
by the Justice Department. That we did not sign the settlement
agreement is considered to be irrelevant. But we know--as a
lawyer, I know--that all parties to litigation have to sign a
settlement to make it relevant.
We live there. We want no ambiguity. We want permanence. We
have supported Dr. Hordes' opinion on the merits. However, he
has gone into that quite well. I will not go into that right
now.
We also cannot believe that Congress intended that the
Secretary of the Interior pursuant to FLPMA could correct a
boundary in an Indian claim when the remedies for such claims
have been established under the Indian Claims Commission Act
quite specifically to extend also to title issues where
compensation was not desired, as well as to compensation
issues.
We have one other question. We would like to know why the
Pueblo of Sandia did not make known its claim to the area at
the time the subdivisions were created back in the 1960's and
1970's. They facilitated the very development that brought us
there in the first place. If they had said, this is our land,
your title is faulty even though it came from a Federal
homestead, this is our land, we would not be here today. I sure
would not be here today. And I would have hoped that at that
point they would have raised that issue. They had
representation at that time by attorneys and it really would
have helped an awful lot if they had said, this is really our
land, we are not going to give you access, utility access, or
water or land on which to put a water system.
Okay, that is the past. Here is the present and the future.
As for S. 2018, we would have preferred a land readjustment
partition, which is in the record of the materials that I
submitted to you. We would have preferred something in the line
of what happened with Santa Clara in the Vayez Caldera, some
kind of conservation easement, some kind of land exchange
scheme that has been done before with other tribes and pueblos.
However, that is not on the table today. So let me go on
from there. We generally support S. 2018. Like Commissioner
Cummins, we still have concerns, however. We would like a
definition of the word ``trust'' as appears in the title to
distinguish it from the use of ``trust'' later in the act when
various lands acquired by the Pueblo in fee are to be placed
into trust.
We have problems with the consent to new uses, as does
Senator Domenici, based on the fact that these new uses are not
necessarily defined. Define those new uses and I think we will
be fine, such as the fire breaks, perhaps handicapped trails, a
corral for diseased animals could be things that very, very
well could come up in the near future. Are they new uses? Are
they modifications? Are they exempt? That is the sort of
definitions we would like.
We too would like to have separated from the legislation
the old settlement. We do not want to see that or the
management agreement incorporated. We got here because of
ambiguities. To incorporate immediately into a piece of
legislation documents which are from their very beginning
inconsistent would be creating the opportunity for years and
years of discussion as to what is consistent and what is not.
Pass the bill, then rework the settlement agreement and the
management agreement to reflect that.
We too would like to have reimbursement of the costs that
have been spent by both parties. Senator Domenici, you are
right, we have been bled dry. We would like very, very much to
have our people reimbursed.
We would also like to see Judge Greene's opinion vacated as
well as the Court of Appeals decision vacated and, if possible,
although I do not know if it is possible, we would like to see
Solicitor Leshy's opinion vacated as well.
We have lots of other issues that concern us. They are not
particularly our issue. We do have concern with the overlapping
jurisdiction and the fact that the tribe in a precedential
situation would be having jurisdiction over both non-Indians
and non-members of the Sandia Pueblo. But that is not
necessarily my major issue.
What do we like? We like the efforts to get more parallel
language. We like the fact that there is now a map included in
the bill that we could point to whenever there is a boundary
description. We like the limitation of hunting and trapping to
religious and cultural uses and not to sport and recreational
uses. We like the possibility of a land exchange to consolidate
holdings. That is something we have always advocated.
In conclusion, the Sandia Mountain Coalition seeks a
permanent legislative solution for the Sandia claim which
recognizes the rights and the interests of all of the parties.
We hope that you will take our concerns into consideration to
resolve this matter so that all of us can go on with our lives
and enjoy Sandia Mountain, which we believe belongs to all of
us.
Thank you so much for the opportunity to talk to you.
[The prepared statement of Ms. Miller follows:]
Prepared Statement of Anita P. Miller, Co-Chair, Sandia Mountain
Coalition, Albuquerque, NM
Mr. Chairman, Senator Bingaman, Senator Domenici, Senators: We are
deeply grateful for the opportunity which you have given the Sandia
Mountain Coalition to appear before these Senate Committees on an issue
that is so vitally important to our members and all residents of
Bernalillo County and the City of Albuquerque, New Mexico. We hope that
our testimony on S. 2018 will assist you in formulating a permanent
solution to the Sandia Pueblo Claim.
introduction
The Sandia Mountain Coalition (hereinafter ``SMC'') has always
sought a fair settlement of the claim of the Pueblo of Sandia to land
on the West face of Sandia Mountain. Its members share the Pueblo's
reverence for the mountain, and its fears that its Wilderness will be
overused and overdeveloped. It continues to believe that the Sandia
claim is without merit, but is willing to make compromises in order to
resolve a controversy which has existed for 16 years, creating
uncertainty and animosity and exhausting financial resources.
The SMC will accept a settlement which includes the following:
Clear title for all private property within the exterior
boundaries of the claim;
Dedicated access to Bernalillo County for roads and both
present and future roads and utilities;
Guaranteed public access to the Forest and Wilderness within
the claim area;
Permanence.
The Coalition continues to work closely with Bernalillo County in
achieving its settlement goals. It has been represented by the same
attorneys, and has submitted joint analyses of proposed settlement
documents and legislation.
The SMC and Bernalillo County generally support S. 2018, introduced
by Senator Jeff Bingaman. The comments which they have submitted
reflect their opinion that there are still remaining ambiguities in the
bill which may lead to future litigation and controversy, thwarting
their goal of achieving a permanent settlement. They have always looked
beyond their immediate interests in their concern that a settlement
also address the public interest and not create precedents which might
have negative impacts on public and private land throughout New Mexico
and the United States.
I. What Is the Sandia Mountain Coalition?
The Sandia Mountain Coalition (hereinafter ``SMC'') is an
unincorporated association of property owners whose land is within the
external boundaries of the claim of the Pueblo of Sandia to
approximately 10,000 acres of land in the Cibola National Forest, which
includes 8,900 acres in the Sandia Mountain Wilderness. The claim
originally also included 655 acres of private land, but the Pueblo has
excluded the private property from its claim in the litigation which it
filed and in the settlement which it signed with the United States
Departments of the Justice, Interior and Agriculture and the Sandia
Peak Tram Company.
The subdivisions of Sandia Heights North and Tierra Monte, in
Bernalillo County, and Evergreen Hills, in Sandoval County, are within
the external boundaries of the claim. About 85% of the property owners
in these subdivisions are members of the Coalition. Evergreen Hills
Subdivision is located to the North of Tierra Monte, over the Sandoval
County line. It has no utilities, and the few houses on its lots are
served by on site water and power and cellular telephones. The SMC
represents the general interests of Evergreen Hills property owners; it
does not represent them in efforts to attain an extension of utilities
to their properties.
There is one remaining large inholding in Sandoval County, the
Piedra Lisa Tract, which is now owned by Guy Riordan. The also
represents Mr. Riordan concerning his general interests as an inholder
within the Claim; it does not represent him concerning his efforts to
attain road and utility access to his property. The SMC's membership
also includes recreational users of the public land at issue in the
claim and Albuquerque area citizens.
Property owners in the subdivisions represented by the Coalition
have had difficulty selling their homes and/or vacant property. They
have had to accept lower sales prices that those received by owners of
comparable property in Sandia Heights South, outside the exterior
boundaries of the claim. The owners are aging and would like
flexibility concerning the disposition of their property which they
will not completely enjoy until all clouds are removed from their land
in a permanent settlement of this controversy.
II. Legislative Initiatives and S. 2018
The SMC and Bernalillo County support many of the amendments made
to the original settlement reached in mediation, as reflected in S.
2018, but still has concerns about some of its provisions.
The SMC urged the New Mexico Congressional Delegation to introduce
legislation to settle the Sandia claim once and for all. The SMC
continues to believe that the claim is without merit, but believes that
the Pueblo's longstanding cultural use of the claim area should be
recognized. On December 11, 2001, it informed former Regional Forester
of the Southwest Region of the United States Forest Service, Eleanor
Townes, and a member of New Mexico Senator Pete Domenici's staff, in a
meeting held to try to resolve the outstanding settlement issues, that
it preferred a settlement which might effect a ``land readjustment'' or
``partition'' the claim area, providing for a purchase or exchange in
which the Pueblo might acquire additional acreage from the Forest
Service adjacent to its existing boundaries.
It also has advocated that the Pueblo might acquire a property
interest in the nature of a ``conservation easement'' in the entire
Claim Area, which could limit future development of the Area, similar
to that acquired by the Santa Clara Pueblo in the Baca Location No. 1,
now part of the recently created Valles Caldera National Monument in
New Mexico.
Anita Miller also briefly summarized this memorandum in a meeting
with Senator Bingaman a few weeks later which was held to introduce
Senator Bingaman's original draft of what is now S. 2018, and presented
it to his staff at that meeting. A copy of the memorandum is attached
to this Testimony as Appendix 1.*
---------------------------------------------------------------------------
* The appendixes have been retained in committee files.
---------------------------------------------------------------------------
The SMC would also support giving the Pueblo of Sandia the
opportunity to assert its claim in the U.S. Claims Court, through a
``reopening'' of the ICCA, and receive compensation in the event that
it is successful. Congress enacted a law which enables the Pueblo of
Isleta to follow this procedure. These options are not currently on the
table, however.
In January, 2002, New Mexico Senator Jeff Bingaman contacted the
SMC and invited its representatives to meet with him to review a bill
which he had drafted. The bill reflected the settlement legislation
which was drafted during the mediation. The SMC was asked to comment on
the bill. Many of its suggestions are reflected in S. 2018, introduced
by Senator Bingaman in March. We generally support the bill.
We are gratified that the bill now will incorporate a map,
which will be referred to whenever a specific reference is made
to property within the T'uf Shur Bien Preservation Trust Area.
We are glad that the specific rights-of-way which will be
dedicated by the Pueblo to Bernalillo County and to the Forest
Service are specifically described in the bill.
We appreciate the addition of ``parallel'' language in
Section 4 (a), which ``recognizes and protects in perpetuity''
the Pueblo's rights and interests in and to the Area, and the
public's longstanding use and enjoyment of the Area, although
we would have preferred that the public's ``rights and
interests in and to'' the Area would have been recognized as
well.
We are pleased that the provisions regarding the criminal
and civil jurisdiction of the Pueblo have been clarified,
although still have some concerns with the extent of this
jurisdiction and the precedents it might set.
We are relieved that the Pueblo's jurisdiction over hunting
and trapping has been reduced and will have more oversight by
the New Mexico Game and Fish Department.
We particularly like the provision which authorizes an
exchange of private land acquired by the Pueblo for other
Forest land, in order to eliminate ``pockets'' of Indian trust
land within the Forest and Wilderness.
We continue to have the following major concerns about S. 2018:
We would like a definition of the word ``trust'' as used in
the Title of the Act and the Title of the Area, distinguishing
it from the usual meaning of trust as it applies to the
relationship between the Department of the Interior and Indian
tribes.
We would prefer that the Pueblo did not have a ``veto
power'' (right to ``withhold consent'') over new uses in the
Area. Giving Bernalillo and Sandoval Counties veto powers which
have never been requested does not resolve that issue. We would
accept a definition of what constitutes ``new uses'' and what
``new uses'' might be exceptions from the veto power, e.g. Is a
handicapped trail a ``new use?''
Would the construction of a corral in order to quarantine
diseased deer by a ``new use''?
We would like to see the Settlement Agreement and Management
Agreement, which are now incorporated into the bill, be
``decoupled''. The bill should be passed first; then the other
documents can be amended to be made consistent. It is alleged
``ambiguities'' in Pueblo Grant documents which resulted in
this controversy in the first place; to incorporate
inconsistent documents in settlement legislation would create
new ambiguities before the settlement even got off the ground.
We would like to see all parties reimbursed for the expenses
incurred during the pendency of this matter, including
attorneys fees. There is precedent for such reimbursement in
the matter which involved the claim of the Santa Domingo Pueblo
against public land and private land owned by the Dunagan
family. The Dunagans were reimbursed.
We would like to see the bill specifically vacate the
District and Court of Appeals Opinions in the Sandia Claim
litigation and the withdrawal of the Leshy Opinion.
In the comments which we submitted to Senator Domenici, which are
included with this testimony as Appendix 2, there are other suggestions
for improving the bill, some of which are of greater concern to others
who will offer testimony before the Senate Committees. We hope that S.
2018, with at least some of our additional suggested amendments, will
be passed by Congress, and that a final settlement of the Sandia Claim
will be achieved.
III. Institutional History of the Claim, from Anita Miller's
Perspective
I am one of a few residents of Sandia Heights North Subdivision who
has been actively involved in the claim issue since it was first made
public in 1986. I have outlasted two other co-chairs of the SMC, two
other Bernalillo County Commissioners, at least two Secretaries of
Agriculture, Regional Foresters, two Cibola National Forest Rangers,
two Secretaries and Solicitors of the Department of the Interior, two
United States Representatives, and at least three Governors of the
Pueblo of Sandia who have been actively involved in the case over the
years.
My husband and I purchased our lot in Sandia Heights North, at 223
Spring Creek Lane, in the late 1970's, exchanging a lot which we had
purchased in 1975 in Sandia Heights South for the lot in Sandia Heights
North. We completed building our home in 1981. We received title
insurance for our lot. We recognized that we had to access our lot over
the existing Sandia Pueblo Reservation, and that our water supply came
from a well located on the Reservation, as well.
We were not aware that our road and utility access was covered in a
``business lease'' between the Pueblo, and was not a recorded easement.
We were also not aware that the Forest Service had never acquired an
easement over a portion of the Pueblo of Sandia which accessed the
neighboring Tierra Monte and Evergreen Hills Subdivisions, the Juan
Tabo and La Cueva Picnic Areas, and the La Luz and Piedra Lisa Trails.
At no time were we told that the Pueblo of Sandia claimed land in
Sandia Heights North.
It is particularly relevant, in the context of the discussion below
of the Pueblo's failure to assert its claim prior to 1983, that the
Pueblo, by giving the Sandia Peak Tram Company access over existing
Pueblo land and a lease to construct a well on Pueblo land to provide
water to the Sandia Heights subdivisions, actually enabled development
to occur. Had it asserted its claim to that land in a timely manner,
the subdivision would never had been built, and I and other members of
the SMC would not have had to become involved in this matter.
Similarly, the Pueblo enabled the development of Tierra Monte
Subdivisions by granting an easement to local electric and telephone
uglifies through Pueblo land. It never has given permission to extend
this easement to serve Evergreen Hills, however. The Pueblo certainly
had ``notice'' that something was going on which was inconsistent with
any historic entitlement it might have had to the land being developed
within the claim area.
In the early 1980's, the Tram Company attempted to trade land which
it owned in the foothills of the City of Albuquerque, south of Sandia
Heights, for land in the Cibola National Forest, known as ``La Cueva,''
to the West of Sandia Heights North. This trade would have provided
more convenient access to Sandia Heights North, Units 2 and 3, and
would also have opened contiguous land to development. The Sierra Club
and other environmental groups opposed the exchange and the development
which would have resulted. It contacted the Pueblo of Sandia and urged
its opposition to the exchange, as well. The rest is history.
The Pueblo then sought assistance from the Department of the
Interior, and retained historians and anthropologists who concluded
that the Pueblo not only should have received the La Cueva tract when
it received its patent from the United States, but the additional
acreage it subsequently claimed on the west face of Sandia Mountain,
including the private inholdings.
A draft opinion, written by an Assistant Solicitor in the
Washington office of the DOI, Tim Vollmann, concluded that the Pueblo's
patent from the United States should have included the land claimed was
sent to the Forest Service for review. The draft opinion concluded that
the Secretary of the Interior should correct the Pueblo's patent to
include the area claimed. The Forest Service circulated the report to
all property owners within the claim area, among other affected
parties.
The property owners within the three subdivisions organized the
SMC, and proceeded to hire historian Frank Wozniak and Anthropologist
Matthew Schmader (now anthropologist for the City of Albuquerque) to
research the historic basis for the Pueblo claim, as well as to
physically inspect the landmarks noted in the historical documents
reviewed. They concluded that the claim was without merit. The SMC
retained Attorney Carol Dinkins, former Deputy U.S. Attorney General
for Natural Resources, of the Houston firm of Vinson and Elkins, to
represent it, and was joined by Bernalillo County in its opposition to
the claim. Bernalillo County was concerned with the impact which the
claim, if successful, would have on County jurisdiction, revenues and
services, and on County citizens who would find themselves in ``Indian
Country.''
New Mexico Senator Pete Domenici and then-Congressman Manuel Lujan
also opposed the claim. The Forest Service had done its own historic
research and concluded that the claim was without merit.
In 1987, representatives of the SMC and Bernalillo County, along
with members of Senator Domenici and Representative Lujan's staff, met
with then Secretary of the Interior Donald Hodel in Washington.
Solicitor Leshy, as well as representative of the BIA were in
attendance. The SMC and County made a presentation and submitted
historic and anthropological reports.
On December 14, 1988, then-Solicitor Ralph Tarr issued an Opinion
concluding that the Sandia Claim was without merit. We were told that
Solicitor Tarr conducted his own historical research and wrote the
opinion himself, but cannot substantiate this.
IV. The Tarr Opinion
The SMC and Bernalillo County supported the Tarr Opinion, which it
believed correctly addressed the merits of the Pueblo of Sandia's claim
and jurisdictional issues involving the failure of the Pueblo to assert
the claim in a timely manner. It believed that this Opinion would end
the controversy.
The Tarr Opinion cited the Pueblo's original Spanish grant
documents, still in the Pueblo's possession, as well as documents
describing the survey of the Pueblo's boundaries by the United States
in 1859 and concluded that the eastern boundary of the Pueblo was
basically correct and should not be changed. It refuted the Pueblo's
evidence to the contrary, finding it inconclusive in the context of all
of the documents comprising the Sandia Pueblo Grant.
Solicitor Tarr also reviewed the Pueblo's failure to assert its
claim to the west face of Sandia Mountain before the Pueblo Lands
Board, as well as before the Indian Claims Commission, created by
Congress for the settlement of outstanding Indian claims. He stated
that the Pueblo had been on notice about federal and private actions
taken with respect to the land claimed, such as the reservation of the
land for a national forest, the actual forest designation, the
designation of the Sandia National Wilderness in 1979 and the
development of the subdivisions, but had failed to assert its claim.
Solicitor Tarr concluded that the claim was barred by the Quiet
Title Act, 28 U.S.C. Section 409, since it had not been brought within
the 12 year period, after notice of the claim, for bringing asserting
claims against the United States involving real property. He
particularly cited Navajo Tribe v. State of New Mexico, 809 F. 2d 1455
(10th Cir. 1987) in concluding that the claim was barred since the
Pueblo had not asserted it under the Indian Claims Commission Act, 25
U.S.C. Section 70. (``ICCA'') He stressed that the ICCA was intended to
dispose of Indian claims which existed before 1946 once and for all,
including claims before administrative agencies. The sole remedy
available to tribes was monetary damages. Although the Pueblo's counsel
had justified the Pueblo's failure to assert a claim under the ICCA by
alleging that money couldn't compensate the Pueblo for the loss of its
land, the Tarr Opinion concluded that the Pueblo had no other remedy.
Tarr also concluded that the Secretary of the Interior's authority
under the Federal Land Policy and Management Act, (``FLPMA''), 43
U.S.C. Section 1746, passed in 1976, to ``correct patents or documents
of conveyance relating to the disposal of public lands where necessary
in order to eliminate errors'' could not be used . . . to revive stale
historical claims which Congress has expressly barred by Section 12 of
the ICCA. (emphasis added). The authority to correct errors also did
not extend to a claimed misreading of the scope of a grant, which was
the issue before Interior in the Sandia Pueblo Claim.
V. Litigation
In 1994, during the first Clinton Administration, the Pueblo
requested that Secretary of the Interior Bruce Babbitt withdraw the
Tarr Opinion. Solicitor Leshy studied the matter and recommended that
it not be withdrawn. The Pueblo sued the Department of the Interior
seeking to compel the Department of the Interior to correct its patent,
and to restrain the Department of Agriculture from interfering with the
``correction'' of the Pueblo's boundaries. Pueblo of Sandia v. Bruce H.
Babbitt, et al., Civ. No. 94-2624, July 20, 1998. The Pueblo included
the private inholdings, including the subdivisions, in the map
depicting the claim area which was included with the complaint. When
the SMC and Bernalillo County successfully moved to intervene in the
case, the Pueblo amended its complaint to exclude the private land from
its claim.
VI. The Hordes Report
The SMC and Bernalillo County continue to believe that the historic
analysis of the Pueblo's claim by Stanley Hordes, Ph.D. is correct.
To reinforce its position in the litigation that the Pueblo's claim
was without merit, the Department of Agriculture retained historian
Stanley Hordes, Ph.D., who had formerly been the New Mexico State
Historian, to do additional research. Dr. Hordes did exhaustive
research finding additional documents from the Spanish Colonial Period
which supported his conclusion that the Pueblo was granted a ``formal''
Pueblo of four square leagues, and that the northern and southern
boundaries of the Pueblo were extended to make up for an abbreviated
western boundary, established at the Rio Grande to avoid conflicts with
grants to Spanish settler on the other side of the river.
Dr. Hordes noted that ``sierra madre'' referred to a mountain
range, rather than the crest of a mountain, in the context of the
language of the colonial period. He also noted that the translator for
the United States after the acquisition of the Mexican Territory by the
United States, David Whiting, in his translation of the original grant
documents in the possession of the Pueblo, substituted totally
different boundary landmarks than those described in the Spanish grant
documents, actually ripping words out of the original documents. He
used the term ``main ridge,'' rather than ``sierra madre'' in the
description of the eastern boundary of the Pueblo.
While not going into detail on the conclusions of the Hordes
Report, suffice it to say that he states that the Pueblo's claim is
based on taking the Whiting mistranslation out of context. While all
other boundary calls refer to points which are ``facing'' specific
landmarks, the translation states . . . and on the East the main ridge
of the crest of the mountain, rather than the Sierra Madre the mountain
range. The original documents had also omitted the word ``facing'' from
the Eastern boundary, although Dr. Hordes concludes that in the context
of both the grant document and the ``Act of Possession'', through which
the Pueblo took possession of its grant, the Eastern boundary was
intended to be one league from the center of the Pueblo's church, which
would be in the Sandia foothills, rather than at the crest of the
mountain.
Dr. Hordes also concluded that the errors in both the Whiting
mistranslation of the original Pueblo of Sandia grant documents as well
as the Clemens survey resulted in the Pueblo receiving about 2,500
acres more than it was supposed to receive, rather than too little
land!
VII. Judge Greene's Opinion
On July 20, 1998, Judge Harold Greene (deceased) of the United
States District Court for the District of Columbia cited the trust
responsibility of the Department of the Interior for Indian Tribes, and
found sufficient ambiguity in the original grant documents to invoke
the Canon of Indian Law which holds that ambiguities in documents must
be decided in favor of the tribes. He vacated the Tarr Opinion pursuant
to the Administrative Procedure Act, 5 U.S.C. Section 551, et seq., and
remanded the case to the Department of the Interior for ``agency action
consistent with this Opinion''. The SMC and Bernalillo County filed a
Notice of Appeal in the Court of Appeals for the District of Columbia.
The City of Albuquerque successfully moved to file an appeal as amicus
curiae. The Department of Justice, representing both the Departments of
the Interior and Agriculture, filed a ``protective appeal''.
The Court of Appeals then ordered that the parties mediate the
case.
VIII. Mediation and Settlement Agreement
The SMC, Bernalillo County and the City of Albuquerque were
gratified that mediation resulted in an the achievement of three of its
four goals. Private title and present and future utility access was
guaranteed, as was public access to the forest and wilderness areas.
The issue of permanence continues to divide the SMC, the County and the
City from the other parties, however.
The Department of Justice convened a mediation process in late
1998, to include representatives of the Departments of Justice,
Agriculture (specifically Forest Service officials at the Regional and
Cibola National Forest level) and Interior, (specifically, BIA
officials and Tim Vollmann, who authored the original draft Opinion
that set this entire matter in motion, who was now the Regional
Solicitor in New Mexico), the Sandia Peak Tram Company, the SMC,
Bernalillo County, and the City of Albuquerque. A mediator who had
experience in Indian issues was selected with the concurrence of all of
the parties.
The parties to the mediation all agreed that the Pueblo's access to
the claim area for ceremonial and cultural purposes should not be
impeded by burdensome Forest Service regulations and permitting
procedures. All parties also agreed that the claim area should not be
developed any further, considering its heavy recreational use as
``Albuquerque's back yard.'' As the mediation progressed, the parties
also participated in the drafting of a Management Agreement, which
would govern the management of the claim area if a settlement were
approved by the parties. Concepts which the SMC thought had been agreed
to by all parties during discussions would look a little different when
they were actually written in settlement drafts.
As negotiations proceeded and the Justice Department produced a
draft Settlement Agreement and a draft of legislation to implement the
settlement, the SMC, Bernalillo County and the City of Albuquerque
concluded that the wording of these documents gave the Pueblo far
greater authority over the Claim Area than was warranted, considering
that they continued to believe that the Pueblo's claim to the Area was
without merit.
The Pueblo insisted on a ``sense of ownership'' of the Area, which
was reflected by language granting the Pueblo ``rights'' ``in and to''
the Area, while merely ``respecting and assuring public use'' of the
Area. The drafts gave the Pueblo a veto power over new uses proposed in
the Area by the Forest Service, which could not be appealed by the
public. It would be compensated as if it owned the Area in fee simple,
if the United States were to violate the Settlement Agreement.
The Pueblo was given unprecedented and confusing civil and criminal
jurisdiction over members of other Indian tribes, as well as
jurisdiction over ``recreational and sport hunting and trapping,'' in
this heavily used area near private homes, by all Native Americans in
the Area, not merely ceremonial and cultural hunting and trapping by
its own members.
The SMC, Bernalillo County and Albuquerque left the mediation in
frustration in July, 1999 when their suggested amendments to draft
documents were ignored. It appeared to us that the documents ``tilted''
ownership of the Area excessively in favor of the Pueblo. It appeared
to us that Tim Vollmann was representing the Pueblo, rather than the
Department of the Interior. It appeared to us that there was political
influence at play, given the involvement of a ``political'' advisor to
the Secretary of Agriculture.
The remaining parties executed a Settlement Agreement and
Management Agreement. A draft Bill reflecting the settlement was also
circulated. The SMC, County and City commented on the documents, in
submittals to the Department of Justice and in the press and local
media. They have continued to oppose the original Settlement Agreement
terms.
The SMC and County have been repeatedly criticized for refusing to
accept the original Settlement, since private property rights and
county jurisdictional issues were addressed in the settlement
documents. As stated above, they have not accepted the original
documents because they believe that some of the provisions and wording
of the documents can lead to ambiguities. which may lead to future
litigation, thwarting a permanent settlement. Their specific comments
are included with this presentation.
IX. The Court of Appeals Remand
The SMC, Bernalillo County and Albuquerque continued their appeal
in the D.C. Circuit, which, on November 17, 2000, remanded the case to
the Department of the Interior, finding that Judge Greene's remand to
the Department of the Interior was not a ``final order'' and that it
therefore did not did not have jurisdiction to decide the case until a
``final'' decision was made by the Department of the Interior which
could then be appealed first in the District Court.
The Court of Appeals Opinion ordered the Department of the
Interior, on remand, to ``reconsider'' the facts in the record and also
reconsider the Tarr Opinion position that it lacked legal authority to
issue a corrected survey. It allowed Interior to re-open the record and
solicit additional evidence from the public. It did not comment on the
merits of the case; it merely stated that ``if Interior does issue a
corrected boundary, it must commission a survey to determine where the
`main ridge' of the Sandia Mountain lies.''
X. The Leshy Opinion
The SMC and Bernalillo County do not believe that the Opinion of
former Solicitor of the Department of the Interior, John Leshy, is a
correct analysis of the history of the Pueblo and of the statutes and
cases governing Indian claims. We do not believe that his ``review'' of
the record should have concluded that the ``main ridge'' of Sandia
Mountain constituted the Pueblo's eastern boundary, continuing to
believe that the original Sandia Pueblo grant documents intended that
the eastern boundary be one league to the east of the Pueblo church,
``facing'' the ``Sierra Madre'', or Sandia Mountain Range.
We also do not believe that Congress intended that the ``general
authority'' of the Secretary of the Interior to resurvey boundaries
should offer Indian tribes an ``end run'' around the Indian Claims
Commission Act and Quiet Title Act, allowing the assertion of time-
barred claims against the United States. We cannot accept Solicitor
Leshy's apparent conclusion that a resurvey by the Department of the
Interior could change the boundaries of a National Forest and National
Wilderness created by an Act of Congress.
The Department of the Interior gave all parties a few weeks after
the announcement of the Court of Appeals decision to make additional
submittals. The SMC, Bernalillo County and Albuquerque asked for
additional time to add to the record, On January 19th, 2001, however,
as Secretary of the Interior Babbitt was leaving office, a new Opinion,
written by Solicitor Leshy was released.
On December 5, 2001, Solicitor Leshy had issued an opinion in an
unrelated boundary dispute between the Santa Ana and San Felipe
Pueblos, stating withdrawing Solicitor Tarr's Opinion as it related to
both the Quiet Title Act and the ICCA as bars to the authority of the
Secretary of the Interior to resurvey boundaries and correct ``mistakes
of the past.'' He relied on Pueblo of Taos v. Andrus, 475 F. Supp. 359
(D.D.C. 1979) which upheld the exercise of the Secretary's authority,
in the context of a post 1946 Pueblo claim. He discounted the Navajo
Tribe case, stating that it had nothing to do with correction of
surveys by the Department of the Interior, and therefore was not on
point.
It should be noted that the United States Supreme Court recently
denied certiorari in Spirit Lake Tribe v. State of South Dakota, et
al., 262 F. 3d 732 (8th Cir. 2001). The Eighth Circuit held that Indian
claims against the United States for land which would extend
reservation boundaries had to be brought within the time limitations of
the Quiet Title Act, with the time beginning to run when the tribe
first had notice of the claim. Solicitor Leshy could lead us to
conclude that the Spirit Lake Tribe should have sought a ``boundary
correction'' from the Secretary of the Interior, rather than bringing a
quiet title action against the State of North Dakota, private parties
and the United States, in order to avoid the Quiet Title Act.
In the January 19 Opinion, Solicitor Leshy withdrew the rest of the
Tarr Opinion, stating that there is no clear evidence that Pueblos were
to be four square leagues, while never refuting evidence which Dr.
Hordes had presented that the formal Pueblo was the ``rule'', and that
Indian Pueblos which were larger than four square leagues, unlike the
Pueblo of Sandia, did not have their original grant documents, and had
established their boundaries by parol evidence and other means.
Solicitor Leshy concluded that Congress intended the Eastern
boundary of the Pueblo to be the ``main ridge'' of Sandia Mountain when
it confirmed the Whiting survey. He blames the current ``erroneous''
boundaries on the incompetence of the surveyor, Clements. He neglects
to mention that Whiting, himself, signed off on that survey!
Solicitor Leshy does not mention the Navajo Tribe case in reference
to the specific facts of the Sandia claim, but once again states that
the ICCA does not specifically address the authority of the Secretary
of the Interior to correct surveys, including those involving Indian
boundaries. He gets around the fact that a correction of this survey
would impact the boundaries of federally designated wilderness by
saying that because of the survey error, the Pueblo never received what
Congress intended, and the land in question never really went into the
National Forest or Wilderness.
Secretary Babbitt, in his cover letter to the Leshy Opinion, states
that the resurvey called for by the Leshy Opinion will be delayed until
November 15, 2002, which is the date which the Settlement Agreement,
which we did not sign, goes into effect. He hopes we'll sign the
Agreement.
The Leshy Opinion, if it were to remain in effect, could reopen
every stale Indian claim in the United States. Requests by tribes to
change their boundaries with national forests and wilderness areas
could disrupt the entire statutory scheme concerning for the creation
and management of public land. It should be withdrawn.
conclusion
The Sandia Mountain Coalition seeks a permanent legislative
settlement of the Sandia Pueblo Claim which will recognize the
legitimate rights and interests of all parties who are concerned with
the claim. We hope that our testimony will receive serious
consideration by the Committees as they review S. 2018. We would like
to get on with our lives, and to enjoy Sandia Mountain with the members
of the Pueblo of Sandia as friends and neighbors, rather than as
adversaries.
Thank you for the opportunity to present our position.
Senator Domenici [presiding]. The Senator will return
shortly.
Mr. Stern.
STATEMENT OF WALTER E. STERN, ESQ., MODRALL, SPERLING, ROEHL,
HARRIS AND SISK, REPRESENTING SANDIA TRAM COMPANY
Mr. Stern. Thank you, Senator Domenici.
I am here today on behalf of the Sandia Peak Tram Company.
Present with me in the hearing room today are Mr. Louis
Abruzzo, president of the Tram Company, and Mark Gonzalez of my
office, the Modrall Sperling firm in Albuquerque, New Mexico.
I want to thank Senator Domenici and the rest of the
committees for the honor of testifying this afternoon
concerning and in general support of S. 2018, sponsored by
Senator Bingaman of New Mexico. I would ask that my written
remarks be made part of the record of this hearing.
Senator Domenici. Without objection.
Mr. Stern. Thank you.
The Sandia Peak Tram Company owns and operates one of the
premier tourist attractions in the State of New Mexico, serving
over 300,000 visitors a year on its 2.7-mile aerial tramway
which runs from the base of the Sandia Mountains to their
crest. The tram company has been involved in this matter for a
number of reasons, not the least of which are that the tram
line traverses the area that is the subject of the Pueblo's
land claim, and tram customers, or the public at large, use the
tram to access the Sandia Mountain Wilderness Area.
Because of its property interests and related concerns in
and near the area that is the subject of the Pueblo's claim,
the tram company participated in the mediated settlement
negotiations to seek to resolve this matter. The roughly 15-
month long mediation effort resulted in the execution of a
settlement agreement, as we have heard previously today,
between the United States, the Pueblo, and the tram company in
April 2000.
The tram company believes the settlement agreement is a
fair, reasonable, and permanent resolution of a complex set of
issues and we continue to support that agreement.
S. 2018 seeks to work within the basic framework of that
settlement agreement and represents a thoughtful vehicle
through which to resolve permanently the Pueblo's claim. S.
2018 in large measure represents the fruits of that mediation
labor, with several modifications that have been designed to
address some of the concerns that have been expressed by the
city of Albuquerque, Bernalillo County, and the Sandia Mountain
Coalition, and we laud the bill's efforts to bring other
interested parties back into the discussion.
The bill follows a tradition of finely tuned congressional
acts that have served to provide for the permanent resolution
of tribal land claims. History has shown that complex issues
like those with which we are faced here deserve narrowly
tailored legislative solutions that work best for the areas and
communities affected. This bill accomplishes a great deal, most
of which is wholly without controversy, as we have heard from
other witnesses today.
Among other things, the bill provides for continued Federal
ownership of the Federal lands at issue, continued
administration of the area by the U.S. Forest Service, and
continued preservation of the wilderness and national forest
character of the area. The bill also preserves public access to
those public lands, it clearly and unambiguously extinguishes
the Pueblo's claims as to the area, and clears title to the
private lands, subdivisions and lands subject to the tram
company's special use permit, and clearly provides that the
Pueblo does not have taxing or regulatory powers or any other
jurisdictional authority over those private lands and
interests. And the bill provides for the permanent access,
permanent grant of permanent rights of way through road and
utility easements across existing Pueblo lands to the Sandia
Heights North subdivisions and others.
There is a need for legislation, and for this legislation
in this Congress in this session. Without a legislative
solution, parties would be thrown back potentially into another
endless round of administrative and judicial proceedings that
could potentially last for years and, even when finished, those
matters, those judicial proceedings, would not address and
resolve all of the matters that we seek to address in S. 2018.
Without a legislative solution, the prospect looms that the
area involved would be placed within Pueblo boundaries and the
Pueblo, as with the remainder of its Spanish grant, would have
the power, even if it chose not to exercise it, would have the
power to exclude non-members of the Pueblo from those lands.
Without a prompt legislative solution, the existing window of
opportunity that so many people have worked so hard to open may
close.
Some legitimate questions have been raised about this
legislation from the standpoint of national precedent. Over the
years it is my belief that Congress has engaged in a fine
tradition of seeking to resolve tribal land claims with unique
and narrowly tailored legislative solutions crafted to fit the
historic circumstances and the needs of the local communities.
That is precisely what S. 2018 seeks to do and as to many of
its details there is other precedent for what S. 2018 seeks to
achieve and how it seeks to achieve it.
My written testimony provides additional thoughts and
information concerning the precedent that this great body has
deemed appropriate to enact and I will leave to your reading
those matters.
In conclusion, we urge the committee to consider the
settlement agreement as the proper guide for the enactment of
settlement legislation and we laud the effort to propose
legislation that seeks to address the concerns of other
interested parties while seeking to preserve the essence of the
settlement agreement. We urge prompt action. Without a
legislative solution in hand by November 15, 2002, this matter
will be back in the courts and administrative agencies, likely
for years, and those forums do not have the flexibility that
this forum does to resolve the matter thoughtfully.
The tram company stands ready to work with the New Mexico
delegation and these committees to advance legislation to
successful passage to resolve not only the land claim, but also
those related matters that are so important to the local
community.
Thank you for your attention.
[The prepared statement of Mr. Stern follows:]
Prepared Statement of Walter E. Stern, Esq., Modrall, Sperling, Roehl,
Harris & Sisk, Representing Sandia Tram Company
Good afternoon, Mr. Chairmen and Honorable Committee Members. My
name is Walter E. Stern; I am a lawyer with the New Mexico law firm of
Modrall Sperling, and am here today on behalf of the Sandia Peak Tram
and Ski Company (``Tram Company''). I have been actively involved since
1994 in the dispute and settlement efforts leading to the bill
presently before the Committee. I want to thank the Chairmen and the
rest of these Committees for the honor of testifying this afternoon
concerning--and in general support of--Senate Bill No. 2018, sponsored
by Senator Bingaman of New Mexico.
practice background and perspective
Since 1982, my law practice has been significantly devoted to the
representation of non-Indian interests in Indian land claim cases,
rights-of-way validity challenges, jurisdictional disputes, and related
litigated matters, and to public land management matters. I also have
been involved in a number of Indian lands transactions where the keys
to success (both in the negotiation and the execution of the contract
or other documentation) are clarity and fairness for all parties.
We believe we achieved these elements in the April 4, 2000
Settlement Agreement between the United States, the Pueblo of Sandia,
and the Tram Company, which is a precursor to Senate Bill No. 2018. Of
course, as with any collaborative document, we might have drawn some
provisions differently than what was the product of the negotiation.
But, our goal was to provide an agreement that would stand the test of
time, be clear, and provide a fair and permanent resolution of the
matters at issue.
sandia peak tram company background
The Sandia Peak Tram Company owns and operates one of the premier
tourist attractions in New Mexico, serving over 300,000 visitors a year
on its 2.7 mile aerial tramway, which runs from the base of the Sandia
Mountains to the crest. The Tram Company has been involved in this
matter for several reasons, not the least of which are that (1) the
tramway line--the principal asset of the Company--traverses the area
that is the subject of the Pueblo of Sandia's land claim, and (2) tram
customers use the tram to access the Sandia Wilderness Area. The Tram
Company developed the aerial tramway on the west face of the Sandia
Mountains adjacent to the City of Albuquerque in 1965, with the
cooperation of the United States Forest Service and the Pueblo of
Sandia. Since that time, the Company has had business relationships
with the Pueblo and the Forest Service.
Presently, the Company holds a Special Use Permit issued by the
Forest Service for the aerial tramway and an adjacent ski area on the
east (or back) side of the Sandia Mountains. And, the Company, together
with affiliated corporations, holds a business lease and certain
rights-of-way located on lands long understood to be Pueblo of Sandia
lands. Among other things, those limited duration rights-of-way provide
road access to the Sandia Heights North subdivisions that lie adjacent
to the area claimed by the Pueblo in the judicial and administrative
proceedings that led to the introduction of Senate Bill No. 2018. In
addition, the Tram Company and its affiliates played a role in the
development of the Sandia Heights North subdivisions over the years,
and still owns commercial parcels adjacent to the base of the Tram
within the Sandia Heights North subdivisions.
the mediation and going forward
Because of its property interests in (and adjacent to) the area
that is the subject of the Pueblo's land claim, the Tram Company
participated from the outset in the mediated settlement negotiations
that involved the Pueblo, the United States Departments of Justice,
Interior and Agriculture, the City of Albuquerque, Bernalillo County,
and the Sandia Mountain Coalition, a small group of property owners and
recreational users. In the mediation, the Tram Company sought to
protect the jurisdictional status quo with respect to the tramway line
and to protect the Tram Company's other property interests--goals not
dissimilar from the goals of homeowners in the Sandia Heights area.
The roughly 15 month long mediation effort resulted in the
execution of a Settlement Agreement between the United States, the
Pueblo and the Tram Company in April 2000. That agreement reflects
significant concessions by the Pueblo and includes clear and
unambiguous language protecting private property rights and providing
for perpetual road and utility easements across Pueblo lands to the
principal subdivisions adjacent to the area. Nonetheless, the City of
Albuquerque, Bernalillo County and the Sandia Mountain Coalition
withdrew from the mediation, despite substantial agreement between all
interested parties to many of the core elements of the agreement. The
Tram Company believes the Settlement Agreement was and is a fair,
reasonable and permanent resolution of a complex set of disputes and
land management issues. We continue to support that agreement.
Senate Bill No. 2018 seeks to work within the basic framework of
the settlement agreement, and represents a thoughtful vehicle through
which to resolve permanently the Pueblo of Sandia's land claim. Senate
Bill No. 2018, in large measure, represents the fruits of the mediation
labors with several modifications designed to address certain concerns
expressed by the City, County and Coalition as they withdrew, and after
they had withdrawn, from the mediation. We laud the bill's effort to
bring other interested parties back into the discussion. While the
original settlement is fair and reasonable to all parties in my
judgment, I also believe that Senate Bill No. 2018 addresses the key
concerns expressed by other parties in New Mexico.
The Tram Company is very appreciative of the efforts to help bridge
the narrow gap between the final results of the mediation effort, which
resulted in the execution of an agreement between the United States,
the Pueblo and the Tram Company, and the positions asserted by the
County, the City and the Sandia Mountain Coalition. I would add that
the ``gap'' between the settling parties (the Tram, the United States
and the Pueblo) and the non-settling parties (the City, County and
Coalition) was never very large--in my view. In any event, it would
appear that the revisions to the basic terms of the settlement that
have been crafted in S. 2018 may promote bringing the range of diverse
interests involved here together.
As the Chairman of the Energy and Natural Resources Committee has
said, ``"this legislation does not give any party everything it sought,
but it protects the interests of the Pueblo, the public, and the
affected landowners. . . .'' In many respects, that is the measure of a
good compromise. In addition, the bill includes carefully tailored
provisions that provide solutions largely unavailable to the federal
courts were the dispute left to judicial resolution.
Recently, one of the lead representatives of the Sandia Mountain
Coalition, Mr. Bill Kiely, recently commented on a public radio talk
show that ``we [presumably the Sandia Mountain Coalition] are very
favorably dispose[d] to Senator Bingaman's current version'' of the
settlement legislation. See Transcript of March 7, 2002 KUNM Call-In
Show. Thus, it would appear that many of the parties in New Mexico
interested in this matter may be drawing together in a consensus in
support of Senate Bill No. 2018.
the bill: s. 2018
Like Indian land settlement legislation before this, S. 2018 is
narrowly tailored to address and permanently resolve a unique set of
circumstances arising in New Mexico following the acts of two (if not
three) sovereigns, beginning with a Spanish land grant in 1748, running
through the era when Mexico ruled the region, and then the period
following the 1848 Treaty of Guadalupe Hidalgo until now, when the
region was part of the United States. This legislation follows a
tradition of finely tuned congressional acts that have served to
provide for the permanent resolution of Indian or tribal land claims
throughout our great country. History has shown that complex issues
like those with which we are faced here deserve narrowly tailored
solutions that work best for the areas and communities affected. In
this tradition, S. 2018 wisely and expressly disclaims that it serves
as any precedent for other legislation.
The Tram Company believes that this bill is the best vehicle to
resolve the Pueblo of Sandia land claim. Like the settlement agreement,
the bill provides a permanent solution to a complex set of problems,
and addresses issues and subjects relating to the land claim that would
not be resolved by the applicable federal agencies or the judiciary in
the event the administrative and court proceedings continued to their
conclusion. Without this legislative solution, the parties interested
in this matter would be thrown back into another round of
administrative and judicial proceedings that would last years and
years, and even when finished would not address and resolve all the
matters addressed in Senate Bill No. 2018. Without this legislative
solution, the prospect looms that the area involved would be placed
within the Pueblo boundaries and the Pueblo--as with the remainder of
its Grant--would have the power to exclude (if it so chooses) non-
members of the Pueblo from those lands. Without a legislative solution
now, the existing window of opportunity so many have worked so
diligently to open, may close.
This bill accomplishes a great deal, most of which is wholly
without controversy:
The bill provides for continued federal ownership of the
federal lands at issue, for the continued administration of the
area--including the lands subject to the Tram Company's Special
Use Permit--by the United States Forest Service, and for the
continued preservation of the wilderness and National Forest
character of the area. The provisions accomplishing these
things also serve to provide further assurances that there will
be no further development of the National Forest and Wilderness
lands in the area;
Using other legislation as a guide, this bill provides a
limited management role for the Pueblo of Sandia in the area,
while disclaiming in Section 10(c) that the Act would serve as
precedent for any subsequent land claim settlement legislation;
This bill clearly and unambiguously extinguishes the
Pueblo's land claims, thereby clearing title to the private
lands, subdivisions, and lands subject to the Tram Company's
Special Use Permit on which the aerial tramway and associated
facilities sit. While the tramway line is located on Forest
Service lands, the Tram's Special Use Permit (encompassing the
tram line and associated facilities) will not be subject to the
special land management regime established under the Bill;
The bill provides clearly and expressly what the
jurisdictional regime will be for the area, and for the private
lands and property interests adjacent to the area clearly
preserving the jurisdictional status quo for the adjacent
private lands and for the Tram Company's Special Use Permit so
that the Pueblo is recognized not to have any taxing or
regulatory powers or any other jurisdictional or governmental
authority over those private lands and interests;
The bill provides for the grant of permanent access, through
road and other rights-of-way, across existing Pueblo lands to
the Sandia Heights North subdivisions, among others; presently,
the Tram Company and its affiliates hold rights-of-way and
other interests that provide access for finite periods of time,
but the legislation provides permanent rights-of-way for
certain roads. It is important to note that in the absence of
federal legislation, these matters will not be resolved in any
ongoing litigation or administrative proceedings relating to
the land claim. The Tram Company and its affiliates hold other
interests within those road rights-of-way grants and other
agreements, and the grants of permanent rights-of-way for roads
shall be subject to those interests. To the extent that the
Tram Company and affiliated companies hold other interests
within those rights-of-way, those companies will be able to
exercise their remaining rights.
The bill provides for a permanent right-of-way across
existing Pueblo lands for a road that currently provides access
to key recreational use areas and trailheads into the Sandia
Wilderness Area and to the Tierra Monte subdivision, but which
road is unpermitted (or to state it another way, is in trespass
on Pueblo lands). Under similar circumstances, other Tribes
have closed such roads. As a measure of its good faith and
honorable dealing, the Pueblo has not taken such provocative
action.
Finally, the bill ratifies the Settlement Agreement reached
between the United States, the Pueblo and the Tram Company, as
modified by the legislation. Fair questions have been raised
about the relationship between the settlement agreement and the
legislation and how the two would be interpreted in relation to
one another. We understand also that consideration has been
given to doing away with the settlement as part of the overall
resolution of this matter. While that may be workable,
consideration should be given to the fact that the Pueblo's
execution of the settlement agreement represents an act of the
Pueblo, and its proposed commitments and actions in that
agreement, including its disclaimer of any right, title, claim
or interest in the subdivisions and other lands, constitute
significant benefits to the other interested parties.
precedent for senate bill no. 2018
Some legitimate questions have been raised about this legislation
from the viewpoint of national precedent. Respectfully, as suggested
previously, over the years, Congress has engaged in a fine tradition of
seeking to resolve tribal land claims with unique and narrowly tailored
legislative solutions, crafted to fit the circumstances and the needs
of the local community. That is precisely what this bill is and does.
There is precedent for much, if not all, of what Senate Bill No. 2018
seeks to achieve and how it seeks to achieve it.
In the 103rd Congress, for example, the Crow Boundary Settlement
Act of 1994 was enacted, resolving a reservation boundary dispute in
the State of Montana. There, an 1889-1891 survey resulted in the
erroneous exclusion of an approximately 36,000 acre strip of land from
the Crow Reservation. Notwithstanding the lengthy passage of time,
Congress passed settlement legislation thoughtfully and narrowly
crafted to redress the survey error. See 25 U.S.C. Sec. Sec. 1776-
1776k, Public Law No. 103-444, 108 Stat. 4632. Recognizing the Crow
Tribe's claim and the survey error, the Act provided the Tribe with
certain attributes of beneficial ownership in the disputed area. And,
that Act also ratified a settlement agreement, ``to the extent that
such Settlement Agreement does not conflict with this subchapter.'' 25
U.S.C. Sec. 776b(b). Thus, there is precedent for resolving an old
survey dispute involving Indian lands boundaries, and there is
precedent for providing the involved tribe with indicia (or benefits)
of ownership in the process.
More recently, to settle a land claim in northern California,
Congress completely redrew a boundary between the Six Rivers National
Forest and the Hoopa Valley Reservation resulting in the reduction of
the National Forest and the addition of over 2600 acres to the Hoopa
Valley Reservation. This legislation arose from a land claim in which
the Hoopa Valley Tribe asserted that there was an ``error in
establishing the boundaries of the Hoopa Valley Reservation.'' See
Hoopa Valley Reservation South Boundary Adjustment Act, Public Law No.
105-79. S. 2018, although addressing a tract of land about four times
larger than the Hoopa Valley tract, provides for far more modest
jurisdictional and beneficial ownership changes to the lands involved
in contrast to the complete transfer of beneficial title to the Hoopa
Valley Tribe. S. 2018 is more narrowly tailored. First, it does not
grant the Pueblo the power to exclude and make all management
decisions. Second, title remains in the United States and the Forest
Service retains the principal management role.
Also, recently, Congress has determined to provide a federal land
management role for Indian tribes in the resolution of tribal land
claims. For example, the Valles Caldera Preservation Act, enacted in
the last Congress, provides that the Trust, which is to administer the
lands subject to the Act, to consult and cooperate with Indian tribes
and Pueblos in New Mexico, including the Pueblo of Santa Clara, on
management practices that affect those tribes and Pueblos. And, in the
Steens Mountain Cooperative Management and Protection Act of 2002, also
enacted during the 106th Congress, Congress provided that the Secretary
of the Interior shall adopt a management plan for federal public lands
in the great State of Oregon that ``shall provide for coordination
with--the Burns Paiute Tribe.'' See Section 111(b)(3). Thus, existing
public laws provide an express management role for tribes.
Similarly, in Public Law No. 105-313, the Miccosukee Reserved Area
Act, Congress provided for the permanent residence of Miccosukee
Indians in the congressionally established Florida Everglades National
Park without the need for those people to seek and obtain a special use
permit from the land management agency. That Act provided that the
lands within the previously established Park would be subject to
Miccosukee Tribe's ``exclusive right'' to use the lands designated ``in
perpetuity'', that the Tribe would have the power to make its own laws
and be governed by them, and that the lands would be considered
``Indian Country'' for jurisdictional purposes.
In addition, in the Timbisha Shoshone Homeland Act of 2000, Public
Law No. 106-423, involving both National Park Service and BLM lands in
Nevada and California, Congress recognized certain rights and interests
of the Timbisha Shoshone in the Park and on BLM lands, including access
to those lands for traditional, cultural and religious purposes.
Moreover, the Timbisha Shoshone Homeland Act also requires the Park
Service and the BLM to close certain lands when requested by the Tribe
``in order to protect the privacy of tribal members engaging in
traditional cultural and religious activities. . . .'' See Section
5(e)(5)(E)(i) of Public Law No. 106-423. Senate Bill No. 2018, which
provides special use rights on federal public lands for the members of
the Pueblo of Sandia, without seeking a permit, therefore, is not
without precedent.
Thus, there is precedent for much, if not all, of the key elements
of Senate Bill No. 2018. There is even precedent for Section 10(c),
which states that the Act is not to be considered precedent. See
Miccosukee Reserved Area Act, Sec. 8(c). But, even if precise precedent
does not exist for every element of the bill, there is precedent in
this august body's work to resolve Indian land claims with legislation
narrowly tailored to address the unique circumstances and history
presented.
conclusion
We urge the Committee to consider the Settlement Agreement as the
proper guide for the enactment of settlement legislation, and we laud
the effort to propose legislation that seeks to address the concerns of
other interested parties while seeking to preserve the essence of the
Settlement Agreement. We urge prompt action. Without a legislative
solution in hand by November 15, 2002, this matter will be back in the
courts and administrative agencies--likely for years. And, despite some
bullish predictions from some who have opposed settlement in the past,
there is no certainty that the claim will be resolved satisfactorily
for the non-Indian interests. In the event the Pueblo wins the
litigation, it would have the power to exclude non-Indians (although it
may not choose to exercise it), and access to a cherished public
resource could be lost to those of us who are not Pueblo members. And,
even if those who oppose the Pueblo succeed in the litigation and
defeat the claim, those people may find that they no longer have the
ability to travel on certain roads because there is no valid right-of-
way. We stand ready to work with the Committee to advance this bill to
successful passage.
Thank you for your attention.
Chairman Inouye [presiding]. Thank you very much, Mr.
Stern.
May I now call upon Mr. Sullivan.
STATEMENT OF EDWARD SULLIVAN, EXECUTIVE DIRECTOR, NEW MEXICO
WILDERNESS ALLIANCE, ALBUQUERQUE, NM
Mr. Sullivan. Thank you, Mr. Chairman, Senator Domenici. My
name is Edward Sullivan. I am the executive director of the New
Mexico Wilderness Alliance and I thank you for the opportunity
to testify today on S. 2018. I would also ask that my entire
written testimony as amended be submitted into the record.
The New Mexico Wilderness Alliance is a community-based
nonprofit organization located in Albuquerque, with over 2,500
members throughout the State, many of whom live just minutes
from the proposed T'uf Shur Bien Preservation Trust Area. A
major thrust of our work is ensuring the permanent protection
of designated wilderness areas within New Mexico from any
harmful impacts.
While we pay close attention to each of our 23 wilderness
areas, the Sandia Mountain Wilderness Area is of particular
importance to the members of the New Mexico Wilderness
Alliance. In addition, many of the founders of the New Mexico
Wilderness Alliance and some of the current board members
played crucial roles in working with Senator Domenici in
attaining wilderness designation for Sandia Mountain.
Both the settlement agreement and S. 2018 ensure that the
wilderness portion of the T'uf Shur Bien Preservation Trust
Area will remain entirely under the protective umbrella of the
Wilderness Act. In addition, although recognizing the Pueblo's
right to access the area for traditional and cultural purposes,
the agreement and S. 2018 limit those activities and access
thereto to only those that are consistent with the Wilderness
Act.
Importantly, the settlement agreement and S. 2018 provide
additional protection for the non-wilderness portion of the
preservation trust area as well. The agreement and S. 2018
expressly prohibit resource extraction of any type and
commercial enterprise such as gaming from occurring anywhere.
Senator Domenici. Such as what?
Mr. Sullivan. I'm sorry?
Senator Domenici. Such as what?
Mr. Sullivan. Such as logging or mining or any type of
extractive use.
Senator Domenici. No, I did not get the word. You said such
as mining? What was the word?
Mr. Sullivan. Gaming, pardon me.
Senator Domenici. Gaming?
Mr. Sullivan. Yes, sir.
In addition to the expressly stated protections for
specific activities, the settlement agreement and S. 2018 also
offer additional layers of protection through the provisions
providing for Pueblo consent. As indicated previously, despite
the Forest Service's recent approach of protective management,
the Service has allowed a number of activities over the years
to occur in the area that have had a deleterious effect on the
wilderness values of the area. The settlement agreement and S.
2018 eliminate the potential for authorization of these types
of activities by providing the Pueblo with what is essentially
a veto power for new uses in the area.
In short, the New Mexico Wilderness Alliance believes that
the protective measures contained in both the settlement
agreement and S. 2018 provide more than adequate protection to
not only the Sandia Mountain Wilderness Area, but also the
remaining portions of the Cibola National Forest that lie
within the proposed trust area. Therefore we are pleased to
express our unequivocal support for these provisions.
We believe that both the settlement agreement and S. 2018
provide clear and unequivocal protection of continued public
access to the area. We believe there is no argument on this
issue. Both documents provide for protection in perpetuity to
the public's longstanding use and enjoyment of the area.
Similarly, the Pueblo has provided every assurance that under
no circumstances does it have an interest in attempting to curb
public access in the future.
For the most part, we believe that the settlement
agreement, S. 2018, and the incorporated T'uf Shur Bien
Preservation Area management plan do an adequate job of
recognizing and protecting the interests of the public and
adequately provide for input in the overall management of the
area. The management plan in section 3.F expressly creates a
public participation in the process with respect to amendments
to the management plan indicated to ensure full public
involvement in future management decisions. In addition, the
settlement agreement, S. 2018 and the management plan each
expressly provide that the National Environmental Policy Act is
fully applicable to the area, providing not only protection for
important environmental concerns, but also preserving public
input through the NEPA process.
Significantly, the incorporated management plan in section
2.B.4 provides the public with important opportunities to
challenge questionable Forest Service decisions on the part
of--I am sorry--questionable Forest Service decisions
pertaining to authorization of new uses, regardless of whether
the Pueblo has consented to those uses.
Additionally and very importantly, the plan in section
2.D.2 sets out a process through which the public has input
with respect to what constitutes a traditional or cultural use
on the part of the Pueblo and provides a cause of action in
Federal courts to challenge decisions regarding traditional and
cultural uses that the public believes are not in accordance
with applicable laws.
There is, however, a discrepancy between the settlement
agreement and the management plan that we would like to see
addressed in any legislation authorizing settlement of this
matter. This is in regard to the blanket exemption from certain
Federal laws applicable to Forest Service lands. S. 2018
attempts to resolve this issue. However, S. 2018 still leaves
uncertainties as to precisely what laws do remain fully
applicable to the preservation trust area.
Any legislation authorizing the settlement agreement must
include a clear and express statement of precisely what laws
remain applicable to management of the area.
Given the Federal district court opinion vacating the
opinion of former Solicitor Tarr regarding the Pueblo's claim
and the subsequent compelling and persuasive opinion of former
Interior Secretary Leshy regarding the legitimacy of the Pueblo
of Sandia's claim, we acknowledge that the Pueblo of Sandia's
claim is unique. Therefore, we believe it is especially
important that any legislation settling this contentious issue
must be respectful of the Pueblo's historic and legal rights
and interests in the area and likewise must protect the
Pueblo's traditional and cultural uses in the area while also
clearly indicating that this is a unique situation which would
not serve as precedent of any similar claims that may
potentially arise in the future. We feel that the original
settlement agreement provides this respect and recognition.
The issue of Indian land claims and county consent
provisions raises other issues with respect to creating
dangerous precedents for future public lands decisions, of
which we are also deeply concerned. Indian land claims are a
concern for many throughout the United States, especially those
of us in the conservation community. We feel strongly each
place and situation where Native Americans may seek ownership,
better access, or stronger management role in public lands is
different. Therefore, we strongly feel that each situation must
be handled individually based on the specific facts of the
particular case as well as the legal, political, cultural, and
environmental conditions of the time.
No one case or situation should be ever used as a precedent
for creating an opportunity or an avenue for tribes to
circumvent the already established process through which tribes
are required to assert land claims.
Of equal, if not greater, importance to the New Mexico
Wilderness Alliance regarding precedential issues is the issue
of county consent. We believe this provision has serious
implications with respect to the management of Federal public
lands. The counties are given consent powers equivalent to
those of the Pueblo. The counties are given this authority
despite having absolutely no legal claim to these lands, not
even an arguable claim on which they may prevail, such as the
Pueblo has in this instance.
There is no precedent that we can identify either in
statutory or Federal case law that supports this provision.
This matter is of critical importance to the New Mexico
Wilderness Alliance as well as other national conservation
organizations. While in initial consideration we were concerned
about the implications of this provision, we did not view it as
something that would preclude our support for the legislation.
Upon further consideration, however, and after many
discussions with local and national organizations, we must now
take a much stronger position and strongly urge that this
provision be removed from the current legislation. This
provision sets a precedent with respect to unsupportable county
rights that we simply cannot live with. Therefore, if this
provision is not removed from S. 2018 we will be forced to
actively oppose this legislation. In addition, we would be
forced to engage our national coalition partners in the
conservation community and organize the greater community to
oppose the legislation as well.
Finally, I want to clearly state that the New Mexico
Wilderness Alliance would never support the loss of any portion
of land currently included within the national wilderness
preservation system, nor would we support any legislation that
would set a precedent having the effect of diminishing the
integrity of the national wilderness preservation system.
Our support for the settlement of this dispute is entirely
contingent upon the area remaining under the Federal
Government's ownership, management, and control. It is only
because of the unique situation presented by this particular
case that we could ever consider agreeing to the management
scheme established under the settlement agreement, S. 2018, and
the management plan. Any attempt to remove the area from the
national wilderness preservation system or from outright
government ownership would cause us to seriously reconsider our
support.
In closing, I would like to once again thank you, Mr.
Chairman and Senator Domenici, for the opportunity to come
before you today and provide the views of the New Mexico
Wilderness Alliance with respect to this important issue. It is
quite an honor and privilege to be seated where I am right now,
and, with the exception of the changes I have suggested with
respect to clarification of applicable laws and regulations,
and especially the county consent provision, I would be happy
to express the support of the New Mexico Wilderness Alliance
for S. 2018.
Thank you.
[The prepared statement of Mr. Sullivan follows:]
Prepared Statement of Edward Sullivan, Executive Director, New Mexico
Wilderness Alliance, Albuquerque, NM
Mr. Chairman and members of the respective committees, my name is
Edward Sullivan and I am the Executive Director of the New Mexico
Wilderness Alliance. I thank you for the opportunity to testify today
on S. 2018.
The New Mexico Wilderness Alliance is a community based non-profit
organization located in Albuquerque, with over 2,500 members throughout
the state, many of whom live just minutes from the proposed T'uf Shur
Bien Preservation Trust Area. The Alliance is an organization dedicated
to the protection, restoration, and continued enjoyment of New Mexico's
wildlands and Wilderness Areas.
A major thrust of our work is ensuring the permanent protection of
designated Wilderness Areas within New Mexico from any harmful impacts.
While we pay close attention to each of our 23 Wilderness Areas, the
Sandia Mountain Wilderness Area is of particular importance to the
members of the New Mexico Wilderness Alliance. In addition, many of the
founders of the New Mexico Wilderness Alliance, and some of the current
members of our Board of Directors played crucial roles in working with
Senator Pete Domenici in attaining Wilderness Designation for Sandia
Mountain.
Accordingly, we have spent many hours, and considerable energy
scrutinizing the issues concerning the Pueblo of Sandia Land Claim, the
original proposed settlement agreement, as well as Senator Bingaman's
S. 2018. I am pleased to come before you today and express the
Alliance's support for the majority of the provisions of S. 2018 and
Senator Bingaman's attempt to bring this contentious matter to a
lasting conclusion.
When we first began reviewing this issue we had two primary
concerns; (1) enduring protection of the Sandia Mountain wilderness
through continued application of the Wilderness Act; and (2) protection
of all existing public rights in the area. It is also extremely
important to us that the resolution of this dispute lead to a
settlement that protects the Pueblo's traditional and cultural uses in
the disputed area. This is especially important, we believe,
considering the Pueblo's continued willingness to compromise its
position in an attempt to address the concerns of all the stakeholders.
We believe that the original settlement agreement, negotiated by the
Pueblo, the Forest Service, the Department of the Interior, the
Department of Justice, and the Sandia Peak Tram Company, addressed
those concerns. We believe that with minor changes S. 2018 will also
adequately address these concerns.
protection of wilderness values
Although today the Forest Service strongly advocates for protection
of the Sandia Mountains, the agency has not always had the Mountain's
best interest at heart, as evidenced by their opposition to its
original Wilderness designation. Over the years, the Forest Service
allowed a number of projects to occur in the Sandias which has
deteriorated the Mountain's wild character. These included the
construction of a number of access roads, permanent developments at the
crest, and a large aerial tramway. We are grateful for the turn towards
protection as a first priority in the Forest Service's approach to
managing the Sandia Mountain Wilderness. However, changes in the
agency's priorities and policies provide little assurance that the
government will stay the course of staunchly defending the Wilderness
Area. We believe the Settlement Agreement and S. 2018 provide
additional guarantees of permanence to the protection of the wilderness
values in the area.
Both the Settlement Agreement and S. 2018 ensure that the
Wilderness portion of the T'uf Shur Bien Preservation Trust Area will
remain entirely under the protective umbrella of the Wilderness Act. In
addition, although recognizing the Pueblo's right to access the Area
for traditional and cultural purposes, the Agreement and S. 2018 limit
those activities, and access thereto, to only those that are consistent
with the Wilderness Act. Meaning, no one, not even members of the
Pueblo, can undertake any activity, or gain access to the area, that
would currently be prohibited in the Wilderness Area. Importantly, the
Settlement Agreement and the S. 2018 provide additional protection for
the non-Wilderness portion of the Preservation Trust Area, as well. The
Agreement and S. 2018, expressly prohibit resource extraction and any
type of commercial enterprise such as gaming from occurring anywhere in
the Trust Area.
Under the express terms of the Settlement Agreement and S. 2018 the
protective provision just referenced apply not only to forest service
lands but also are fully applicable to trust and fee lands that the
Pueblo has purchased in the past as well as any lands in the Area the
Pueblo may acquire in the future. This is entirely consistent with the
Pueblo's stated purpose of providing permanent protection to the
entirety of the Area. We feel that by accepting restrictions on the use
of this Pueblo owned property, restrictions I would add that otherwise
would be inapplicable to this property, that the Pueblo has shown its
good faith intention to fulfill the promise to protect and preserve the
Area's natural and wild character. Therefore, quite simply put, we
believe that the Settlement Agreement and S. 2018 provide excellent
protection for the natural wilderness character of the Mountain and we
strongly support the protective provisions of both documents.
In addition to the expressly stated protections from specific
activities, the Settlement Agreement and S. 2018 also offer additional
layers of protection through the provisions providing for Pueblo
Consent. One of the Pueblo's stated purposes for pursuing the land
claim is to provide enduring protection to the wilderness and natural
character of the Area. We believe the terms of the Settlement Agreement
confirm the integrity of that claimed purpose. As indicated previously,
despite the Forest Service's recent approach of protective management,
the Service has allowed a number of activities to occur in the Area
that have had a deleterious effect on the wilderness values of the
Area. The Settlement Agreement and S. 2018 eliminate the potential for
authorization of these types of activities by providing the Pueblo with
what is essentially a veto power for ``new'' uses in the Area.
Therefore, if the Forest Service or some other entity proposed an
activity in the Area that would negatively impact the wilderness or
natural quality of the Area the Pueblo, through the consent provisions,
has the authority to prevent that activity and protect the Area from
harm. Considering the stated purpose of protecting the naturalness of
the Area, expressed by all the parties to this dispute, we strongly
support the provision providing for Pueblo Consent.
In short, the New Mexico Wilderness Alliance believes that the
protective measures contained in both the Settlement Agreement and S.
2018 provide more than adequate protection to not only the Sandia
Mountain Wilderness Area but also the remaining portions of the Cibola
National Forest that lie within the proposed Trust Area. Therefore, we
are pleased to express our unequivocal support for these provisions.
protection of existing public rights and interests
Because the area in question serves as the premier open space
refuge to a population of over 700,000 people in the Albuquerque metro
area, it is critical that any settlement protect not only public access
to the Area but also the public voice in how the Area is managed and
protected. We believe that the Settlement Agreement and S. 2018 do an
adequate job of protecting those interests.
We believe that both the Settlement Agreement and S. 2018 provide
clear and unequivocal protection of continued public access to the
area. We believe that there is no argument on this issue; both
documents provide for protection, in perpetuity, to the public's
longstanding use and enjoyment of the Area. Similarly, the Pueblo has
provided every assurance that under no circumstances does it have an
interest in attempting to curb public access in the future.
Public participation in the management of the Area, especially when
it comes to the land use planning process, raises some interesting
issues for the New Mexico Wilderness Alliance. Public participation in
this process is critical for sound management of any special use area.
Therefore, we pay extremely close attention to any proposals that may
change or alter this process.
For the most part, we believe that the Settlement Agreement, S.
2018, and the incorporated T'uf Shur Bien Preservation Trust Area
Management Plan, do an adequate job of recognizing, and protecting
interests of the public and adequately provide for input in the overall
management of the Area. The Management Plan, in Section IIIF, expressly
creates a public participation and input process, with respect to
amendments to the Management Plan intended to ensure full public
involvement in future management decisions. In addition, the Settlement
Agreement, S. 2018 and the Management Plan each expressly provide that
the National Environmental Policy Act is fully applicable to the Area
providing not only protection for important environmental concerns but
also preserving public input through the NEPA process.
Significantly, the incorporated Management Plan, in Section IIB(4),
provides the public with important opportunities to challenge
questionable Forest Service decisions on the part of the Forest Service
pertaining to authorization of ``new'' uses, regardless of whether the
Pueblo has consented to those uses. Additionally, and very importantly,
the Plan, in Section IID(2), sets out a process through which the
public has input with respect to what constitutes a traditional or
cultural use on the part of the Pueblo and provides a cause of action
in federal courts to challenge decisions regarding traditional and
cultural uses that the public believes are not in accordance with
applicable laws.
The one point of contention that we have with the existing
management plan, is that we would have preferred that the public been
invited to participate in its development. The current, incorporated,
Management Plan was developed by the parties to the litigation
concerning the land dispute, without public participation. While we
believe that our public lands should always be managed with the maximum
amount of public input and participation possible, we recognize and
respect that the Settlement Agreement, and S. 2018 as well as the
initial Management Plan, attempt to settle litigation to which the
public at large was not a party. Therefore, we understand that this is
a unique situation in which inclusion of every potential stakeholder
may very well have precluded any potential for settlement of this
troubling situation.
It is important to note, that in our review of issues concerning
public interest in the Area we looked at the original Settlement
Agreement and Management Plan together, as essentially a single
document. Taken as a whole, therefore, we believe that the Settlement
Agreement, or S. 2018 and the Management Plan provide adequate
protection of the public's interest in participating in process of
making future management decisions concerning the proposed Preservation
Trust Area. There is however, a discrepancy between the Settlement
Agreement and the Management Plan that we would like to see addressed
in any legislation authorizing the settlement of this matter.
As it stands currently the original Settlement Agreement contain
blanket exemptions from the Forest and Rangeland Renewable Resources
Planning Act, as amended by the National Forest Management Act as well
as the Forest Service planning regulations implementing these acts.
Senator Bingaman's draft bill, dated February 25, 2002 contained a
similar exemption. The Management Plan, however, expressly provides
that a number of provisions of those planning regulations remain
applicable to the Area. Specifically, the Plan provides for application
of the appeal process regarding Forest Service project decisions, set
out at 36 C.F.R. 215 to apply to management decisions in the Area.
Similarly, the Plan provides that the public appeal process regarding
Plan amendment decisions, set out at 36 C.F.R. 217, or subsequent
amendments, apply to any administrative appeal of the Forest
Supervisor's decision regarding amendment of the Plan. Therefore, the
terms of the Settlement Agreement are inconsistent with the terms of
the Management Plan. This is especially important considering that the
appeal provisions regarding Plan amendments in 36 C.F.R. 217 have been
amended and incorporated into planning regulations set out at 36 C.F.R.
219.
While there appears to be a conflict here in the language of the
Settlement Agreement and the Management Plan, it has been our
understanding all along that the parties fully intended the terms of
the Management Plan to be fully applicable and enforceable. Therefore,
we do not believe that this was an intentional attempt to create
ambiguity in the Plan or the Settlement Agreement. Obviously, however,
this discrepancy is important and needs to be addressed. S. 2018
attempts to remove this discrepancy by simply removing this blanket
exemption and retaining only the introductory language stating that
``other laws and regulations applicable to the National Forest System,
and the Management Plan (which is incorporated herein by reference)''
shall apply to the administration of the Area. This change, although an
improvement on the Settlement Agreement and the Draft Bill, it does not
fully resolve the problem. This new language still leaves doubt as to
precisely what laws and regulations remain in full force and effect.
Congress, through this legislation has the opportunity to eliminate
this confusion and make clear the relationship between the Act, the
Settlement Agreement, and the Management Plan as well as the process
for public participation that will attach to the Area. Any legislation
authorizing the Settlement Agreement must include a clear and express
statement of precisely what laws remain applicable to management of the
Area.
respect and protection for the integrity of the pueblo rights
and interests in the area
Given the federal district court opinion vacating the opinion of
former Solicitor Tarr regarding the Pueblo's claim, and the subsequent,
compelling and persuasive opinion of former Interior Solicitor Leshy
regarding the legitimacy of the Pueblo of Sandia's claim we acknowledge
that the Pueblo of Sandia's claim is unique. Therefore, we believe it
is especially important that any legislation settling this contentious
issue must be respectful to the Pueblo's historic and legal rights and
interests in the area and likewise must protect the Pueblo's
traditional and cultural uses in the area while also and clearly
indicating that this is a unique situation which should not serve as
precedent of any similar claims that may potentially arise in the
future.
We feel that the original Settlement Agreement provides this
respect and recognition. Similarly, we feel that S. 2018 does a
respectable job in this area. However, there is one provision in
particular in S. 2018 that has the appearance and the effect of
denigrating the integrity of the Pueblo's interest and provides rights
to other parties that are inconsistent with the need for and the
purpose of this legislation.
I am speaking of the provision set out in Section 4(b)(4) of S.
2018. This provision provides both Sandoval and Bernalillo Counties
with Consent rights equivalent to those of the Pueblo. We feel this
provision is unnecessary. It provides the counties, who were not
parties to this dispute, with rights that they otherwise would not have
and for which there is no legal precedent, of which we are aware. In
addition, we feel that raising the level of authority of the two
counties to that of the Pueblo is disrespectful of the Pueblo's
legitimate historic and legal interest in the Area.
potential national precedential issues
The issue of Indian land claims and County Consent provisions raise
other issues with respect to creating dangerous precedents for future
public lands decisions of which we are also deeply concerned.
Indian land claims are a concern for many throughout the United
States, especially those of us in the conservation community. We feel
strongly each place and situation where Native Americans may seek
ownership, better access to or a stronger management role in public
lands is different. Therefore, we feel strongly that, each situation
must be handled individually based on the specific facts of the
particular case as well as the legal, political, cultural, and
environmental conditions of the time. No one case, or situation should
ever be used a precedent for creating an opportunity or avenue for
tribes to circumvent the already established process through which
Tribes are required to assert land claims. Were it not for our sincere
belief that this particular instance presents a unique situation in
which the Pueblo's claim has had strong support from Interior
Department officials and the federal district court, it is possible
that we would be in front of you today taking an entirely different
position. However, that is not the case. Because of our belief in the
strength of the Pueblo of Sandia's claim and our desire to have the
local interests, who have the most at stake in this matter, rather than
a federal judge, bring this matter to a conclusion, we are pleased to
offer our support today for the majority of the provisions of S. 2018.
Of equal, if not greater, importance to the New Mexico Wilderness
Alliance, regarding precedential issues is the issue of County Consent
included in S. 2018. As stated above, we believe this provision has
implications regarding respect for the Pueblo's historic and legal
rights in the Area. More importantly, it has serious implications with
respect to the management of federal public lands. This provision, as
far as we have been able to determine, creates the first instance in
which a County, a subdivision of State government, has the authority to
dictate how federal lands are used and managed. The counties are given
this authority despite having absolutely no legal claim to these lands,
not even an arguable claim on which they may prevail such as the Pueblo
has in this instance. In addition there is absolutely no precedent that
we can identify, either in statutory or federal case law, that supports
this new delegation of authority.
This matter is of critical importance to the New Mexico Wilderness
Alliance as well as other national conservation organizations. While in
initial consideration we were concerned about the implications of this
provision we did not view it something that would preclude our support
for the legislation. Upon further consideration, however, and after
many discussions with local and national organization we must now take
a much stronger position and strongly urge that this provision be
removed from the current legislation. This provision sets a precedent
with respect to unsupportable County rights that we simply cannot live
with. Therefore, if this provision is not removed from S. 2018 we will
be forced to actively oppose this legislation. In addition we will be
forced to engage our national coalition partners in the conservation
community and organize the greater community to oppose this legislation
as well.
Finally, I want to clearly state the New Mexico Wilderness Alliance
would never support the loss of any portion of land currently included
within the National Wilderness Preservation System. Nor would we
support any legislation that would set a precedent having the effect of
diminishing the integrity of the National Wilderness Preservation
System. Our support for the settlement of this dispute is entirely
contingent upon the Area remaining under the federal government's
ownership, management, and control. It is only because of the unique
situation presented by this particular case that we could ever consider
agreeing to the management scheme established under the Settlement
Agreement, S. 2018 and the Management Plan. Any attempt to remove the
Area from the National Wilderness Preservation System, or from outright
government ownership, would cause us to seriously reconsider our
support.
In closing, I would like to, once again, thank you Mr. Chairman and
the members of the respective committees for the opportunity to come
before you today and provide the views of the New Mexico Wilderness
Alliance with respect to this important issue. It is an honor and a
privilege to be seated where I am right now. With the exception of the
changes I have suggested with respect clarification of applicable laws
and regulations, and removing County consent provision, I would be
happy to express the support of the New Mexico Wilderness Alliance for
S. 2018.
Chairman Inouye. Thank you very much, Mr. Sullivan.
STATEMENT OF GUY RIORDAN, OWNER, PIEDRA LISA TRACT,
ALBUQUERQUE, NM
Mr. Riordan. Thank you, Mr. Chairman, Senator Domenici. I
would like to also thank Mr. Mike Connor from Senator
Bingaman's office for allowing me to come up here and testify
today.
My name is Guy Riordan. I am the owner of a 160-acre
private property tract known as the Piedra Lisa Tract or as the
Caulkins Estate or sometimes known as the Canyon del Agua
Estate. This property is located within Sandoval County, New
Mexico, and surrounded by the proposed T'uf Shur Bien
Preservation Trust Area Act.
This piece of property was originally homesteaded in 1890
by a Mr. Francisco Duran. In 1914 the Manzano National Forest
was created. The national forest surrounded this property, but
access was continued through the forest by the original
homesteader and his successors--prior existing use. In
approximately 1978 the surrounding national forest was added as
wilderness. Our access to our property is continuing to this
date.
This Piedra Lisa Tract is very unique. It is the most
beautiful property on the mountain. It has spectacular views, a
year-round running stream, one of only a few within the entire
area, ponderosa pine trees, an abundant amount of deer, turkey,
bear, mountain lions. It is also surrounded by the Sandia State
Game Refuge and Management Area.
Because of this uniqueness, the ``Caulkins Tract,'' as the
Federal Government has called it, as it been referred to by the
Forest Service, was and has been on their priority acquisition
list even prior to my owning the property. The Forest Service
has been trying to acquire funds to purchase this property.
After I purchased the property, the Forest Service continued to
place my property on their high priority acquisition list.
Recently, the Forest Service has tried to deny vehicular
access to my property, even though I have a prior existing use
dating back to the original homestead. Because of the recent
stand by the Forest Service, I filed suit in the Federal court
asking for a declaratory judgment on my private property
rights.
In addition to the Forest Service attempting to acquire the
Piedra Lisa Tract, the Sandia Pueblo has made numerous offers
and inquiries as to purchase of this property.
S. 2018 has been specifically designed to legislate around
my private property rights and my due process in Federal court
and any and all remedies that may be authorized through the
administrative process within the Forest Service. Senator
Bingaman, I know that you are trying to resolve this dispute in
an honorable fashion, but some of the parties involved have not
been.
I have never been involved in any initial discussions with
the Forest Service, Sandia Pueblo, or your staff in regards to
the protection of my property rights under S. 2018. My property
is mentioned numerous times as to its disposition if the Forest
Service acquires it or if Sandia Pueblo acquires the property.
It also allows Sandia Pueblo to veto, as well as Sandoval
County, which the Pueblo has great influence over, any new uses
of national forest lands, which may affect my private property
rights and diminish the value of my property, for their own
self interest.
Another major concern is section 14, subsection C of this
bill. It allows the Pueblo to exchange lands owned within the
private subdivisions for national forest lands within Sandoval
County. This could allow the Pueblo to own all lands
surrounding my property. The Pueblo has purchased numerous
properties in the exclusive subdivisions over the years. The
high value of these properties on a dollar basis exchange would
allow the Pueblo to purchase or exchange thousands of acres of
wilderness land, thus possibly entering into trust and out of
public use.
I find it remarkable that I own the largest single private
tract of land addressed in this bill, but have not been
guaranteed rights of access or rights of way, have not had any
mention of utilities, cables, etcetera, rights of way, but
every other road, trail, and private property right and all
other subdivisions are specifically exempted from Pueblo
jurisdiction.
I respectfully request that all rights to my due process be
guaranteed and that all my property rights and interests be
protected.
Thank you.
Chairman Inouye. Thank you very much, Mr. Riordan.
Mr. Cummins, if this agreement is not ratified, would the
home owners in Tierra Monte and Sandia Heights subdivisions
lose any rights to rights of way and utility easements to their
homes?
Mr. Cummins. I think generally speaking, yes, Mr. Chairman.
Certainly the issues that Anita Miller and I think--and
respectfully, I would suggest that Anita Miller would be better
to answer your question. She has been involved and is a lawyer.
But certainly the access over the triangular piece of the
existing Pueblo lands is critical to the access to particularly
Tierra Monte and some portions of North Sandia Heights.
Chairman Inouye. Now, this agreement would provide for the
rights of way, will it not?
Mr. Cummins. That is correct.
Chairman Inouye. So if you do not have this legislation,
the rights of way are gone?
Mr. Cummins. Yes, sir. In New Mexico we consider that being
in deep guacamole.
Chairman Inouye. Ms. Miller, I am sorry I had to step out
while you were testifying, but would you favor this committee
by providing it with legislative language covering your
suggestions?
Ms. Miller. Senator, I would be delighted to. I already did
include a definition of trust for the purpose of the statute.
As far as new uses, I would like to work with Senator
Domenici's staff on that as well as with my membership on new
uses. I think that I would be delighted if you would be
interested in receiving that.
Chairman Inouye. I would request that it be submitted as
soon as possible so the committee can study that.
Ms. Miller. Thank you.
Chairman Inouye. I appreciate it.
I gather, Mr. Stern, that you do support the measure?
Mr. Stern. Generally speaking we do, Mr. Chairman. If I
might follow up to supplement Mr. Cummins' answer concerning
the question of rights of way, the tram company does have a
particular interest in the rights of way in the triangle area
to the south of the map over here in the hearing room. But
those rights of way that the tram company holds are for a
finite period of time. They are not permanent rights of way,
and so this S. 2018 and the settlement agreement would provide
for permanent rights of way for those roads.
In addition, the settlement and S. 2018 also provide for
permanent utility rights of way to the Sandia Heights North
subdivisions, which has been a matter of some concern as I
understand it to the home owners in that area for many years.
Chairman Inouye. Mr. Sullivan, with the exception of the
two items that you pointed out, you support this measure?
Mr. Sullivan. Yes, Mr. Chairman, we are very much in
support of settling this matter.
Chairman Inouye. But do you have any questions on the right
to consent to new uses?
Mr. Sullivan. On behalf of the Pueblo?
Chairman Inouye. Yes.
Mr. Sullivan. No, we actually support that right, very much
so. We think it is an extra layer of protection. I was somewhat
interested in Senator Craig's concept of super-wilderness that
he mentioned earlier.
Chairman Inouye. Mr. Riordan, listening to your testimony,
I had the staff look into section 10.B of the bill. Have you
seen that section? It was added to ensure that your private
property rights would not be affected. I think it covers your
concern.
Senator Domenici. This is Mr. Riordan you are talking to?
Chairman Inouye. Yes.
Mr. Riordan. Yes, sir. On section 10, subsection B:
``Existing rights extend to any valid property rights that
exist within the area that are not otherwise addressed in this
act or in the settlement agreement. Such rights are not
modified or otherwise affected by this act.''
The problem I had with this bill, sir, is it was
specifically excluding my piece of property in any definition
of rights of ways, abilities to go ahead, and you have special
use permits authorized by the national forest, and other rights
that I feel that I may or may not have. The problem I had once
again is that this has been a situation where my property is
surrounded by the national forest and the wilderness, and I
think that people have been trying to diminish my rights and
access to the administrative process as well as the Federal
courts for their own personal purchase of the property.
I have been included in this bill, I think, two or three
times as to the disposition of my property, without ever being
consulted on it. In this bill it is stated what will happen if
the Pueblo of Sandia purchases my property, what will happen if
the Federal Government purchases my property. I feel that there
is not sufficient language in this bill to protect my rights
and I would like to see something included that protects my
rights for access as well as any other use that we may have
getting back and forth to our property, sir.
Chairman Inouye. Thank you.
Mr. Cummins, if I may ask one more question. In citing your
concern about new uses, you cited the right of handicapped
access and handicapped parking.
Mr. Cummins. Yes, sir.
Chairman Inouye. Does not the Federal law, the Americans
With Disabilities Act, cover that?
Mr. Cummins. We would hope so, but our concern is that in
establishing a veto over new uses, as with some of the other
questions on other Federal law, we do not know what would take
precedence. So we would just like that clarified that either
other Federal laws, including the wilderness acts and
everything else, apply or do not. I think there have been
several questions.
Chairman Inouye. I would think it would be rather difficult
for you to veto a Federal law, but we will look into that.
Mr. Cummins. I would hope so, sir. Thank you.
Chairman Inouye. Senator Domenici.
Senator Domenici. Thank you very much.
Mr. Riordan, my staff tells me that there is a State game
refuge which surrounds your property?
Mr. Riordan. Yes, sir, there is.
Senator Domenici. There is no mention of that in your
testimony today. Would that have any effect, would this
legislation have any effect on that refuge as well as your
property?
Mr. Riordan. Senator Domenici, that Sandia Game Refuge and
Sandia Management Area is once again another very unique area,
and there is tremendous amounts of deer, bear, turkey, mountain
lion on that property.
Senator Domenici. How big is it?
Mr. Riordan. It covers this entire T'uf Shur Bien area.
Senator Domenici. Do you happen to know how many acres it
is?
Mr. Riordan. Sir, I would say it has got to be over 30,000
acres, this entire portion. This T'uf Shur Bien area totally is
encompassed within that Sandia National--excuse me--Sandia
State Game Refuge and Management Area.
Senator Domenici. Your property, how many acres is it?
Mr. Riordan. I have 160 acres, sir.
Senator Domenici. Inside of the 10,000?
Mr. Riordan. Yes, sir.
Senator Domenici. Is it currently accessible?
Mr. Riordan. Yes, sir, it is.
Senator Domenici. Over Indian land?
Mr. Riordan. No, sir. Over national forest and through the
wilderness area.
Senator Domenici. And the forest?
Mr. Riordan. Yes, sir.
Senator Domenici. So the question you are asking is, will
it remain such when we are finished here, whatever the effect
of the joint management agreement?
Mr. Riordan. Yes, sir.
Senator Domenici. And obviously we have got to check into
that.
Mr. Riordan. Yes, sir. We would like clarification. We
would like to be assured access to our property.
Senator Domenici. I do not think anybody--our Indian
people's approach has been in exchange for all this, they are
going to grant the rights of way across our property as we
obtain a property right interest. So I would assume you would
have that right, if it does exist, and we will just have to
look at it.
Mr. Riordan. I would like clarification on it, yes, sir.
Senator Domenici. Do you have somebody that can write us
language that you think makes it clear? We would like it so we
do not have to go back and forth.
Mr. Riordan. Yes, sir, I can have my attorney do that.
Senator Domenici. Tim, any language that you want
clarified? I know you have gone to an inordinate amount of
expenditures at the county level, but can you through your
lawyer get clarification language that you might need?
Mr. Cummins. Yes, sir.
Senator Domenici. I think what we are going to have to do
is, we all have sessions when we go around and round and we
come close, but we do not finish it. I think we are asking
you--you are asking us for some things today, but we need your
help, if you can, on what will satisfy you with reference to
specifics.
Anita, can you do the same thing on definitions? If we do
not have them, will you get them to us?
Ms. Miller. Yes.
Senator Domenici. I assume we will redo them, but at least
we will be one step ahead. We will have your thoughts. Your
thoughts as written may not be acceptable legally, but we will
have something cooking.
You had no problems of that type, did you, Mr. Stern?
Mr. Stern. No, Senator. But I did want to simply reiterate
that the tram company does stand ready to offer whatever
assistance is appropriate to the committee and the other
parties in moving this forward.
Senator Domenici. Now, Mr. Sullivan, you offered some very,
very interesting observations. At one point near the end you
were talking rather firmly of the kind of problem that is going
to be created if something is done, that it would bring you out
of the bushes along with all the other groups that you work
with.
Mr. Sullivan. We spend a lot of time in the bushes.
Senator Domenici. Yes, you do. That was a mistake, that I
used that, but on second thought it fits all right.
[Laughter.]
Senator Domenici. Would you repeat rather quickly what it
is you are talking about with reference to lands, the laws that
are applicable, and the fact that you have to have assurance
that this is going to remain wilderness? I did not get that
when you talked about it. Would you repeat it?
Mr. Sullivan. Yes, sir. We are solely concerned that the
discrepancy between the settlement agreement and the management
plan regarding planning for the area be resolved. We would be
happy to get in touch with your staff or Senator Bingaman's
staff with specific language regarding that.
Also, we had a concern with the consent provision, the
county consent provision.
Senator Domenici. Yes.
Mr. Sullivan. We feel that is unprecedented and we are very
concerned that a county would have jurisdiction or increased
authority in a wilderness area or on any public lands. We think
that is a dangerous trend that many folks are trying to move us
towards.
Senator Domenici. Were there not some Federal laws that you
thought ought to apply that are not enumerated, that you wanted
to see enumerated or that we should act upon them? Or did I
miss something?
Mr. Sullivan. I do not believe so, sir.
Senator Domenici. Okay.
Mr. Sullivan. If I may add one comment, I would just want
to make a comment on Mr. Riordan's testimony, in that to my
knowledge access to this tract, the Piedra Lisa Tract, has only
been by foot travel. There is no historic vehicular access. I
would be remiss to not bring that up in front of the committee
because we believe legislating vehicular access across a
wilderness area would again be a dangerous precedent to set.
Senator Domenici. Well, I think his position would be that
that was already there.
Mr. Sullivan. Right. That is actually something that is
being currently adjudicated in a court in Albuquerque, to which
we are a party with Mr. Riordan.
Senator Domenici. Mr. Chairman, might I, since we still
have a lot of our New Mexicans and I believe we are finished
with the hearings--are we not?
Chairman Inouye. I have just got to vote, that is all.
Senator Domenici. But I mean--downstairs, you are going to
vote?
Chairman Inouye. We have still got about 10 minutes.
Senator Domenici. What I was going to say, I am finished,
but I just wanted to wrap it up if I could.
Chairman Inouye. Please.
Senator Domenici. First of all, I want to personally, on
behalf of our people, thank you for coming. You obviously are a
totally neutral party and you work very hard on Indian issues,
and it was good that you and your good staff worked its way in
getting you here and having you a participant, and I thank you
for that.
You know, now that we have finished the hearing, it has
dawned on me that this could have been accomplished in a number
of ways. But the Forest Service--and they have good people, no
question--they got started in trying to resolve a dispute where
the Sandians were claiming this property and the Forest Service
was claiming it and was managing it and people were using it,
and litigation was going to take place, and a Leshy opinion,
even though it has never been confirmed by a court and the
facts were never found by a court, the litigation was going to
take place.
I think the Forest Service in their typical way started to
resolve this by resolving management issues and trying to have
both the Forest Service and Sandia have equal power and control
over this property, so that there would be almost an imaginary
line between the ownership and the rights of the Indian people,
so that we even got it so close to being fee simple title to
the Indian people that we said if anything is ever changed
there, the Forest Service said, if anything is ever changed,
the Indians can claim recompense for the whole tract, not for
half the tract, as if it were theirs.
I am not sure when you take a piece of property that has
the mixed uses that we had here and impose on it a wilderness
area, subdivisions, a tram, and you attempt now to settle a
dispute of a land claim of ownership by distributing management
and other things--I can see where it turns into a very
difficult situation.
I do not know whether they tried more conventional
approaches. The conventional approaches are conservation
easements. If you have one party that owns and one party that
does not quite own, they can have a lot left, but they have a
conservation easement that judges how it is used. There are
other joint management agreements that are a long way from
being as complicated as this that are entered into. We have
done some here with the Indians at Hamas and probably some
others that I do not recall.
But I think that we are going to work from what we are
dealt with. Those people here who have heard the testimony and
have participated and have made some contention that something
ought to happen or they would like to see this or that, I think
the best thing we can do is ask you to submit it. There is no
use us following through here. You know where we are at. We are
pretty accessible, even though we are in Washington. We have
our offices. You all know how to get our staff. You ought to
send them to us.
If you are going to talk about fees, attorneys' fees, I do
not think you ought to be bashful. You ought to go ahead and
say it. I do not know that you can get it, but I think you can
say that is one thing you feel this whole dispute precipitated
out, and you would like to make that submission.
We will hear from you on conservation issues. Mr. Riordan,
you will give us more information if you intend to be protected
there. Obviously, the Forest Service will be contacted, so that
we are doing the same thing.
Mr. Riordan. Thank you, sir.
Senator Domenici. I am finished. Again, I want to thank
you. It is a pleasure working with you. And I thank you, all of
you New Mexicans. We will see you very soon.
Chairman Inouye. Well, to accommodate the serious concerns
of my good friend Senator Domenici, the record of this hearing
will be kept open until close of business May 8. That is
Wednesday. I think it should give all of us sufficient time to
work out suggested language, legislative language.
May I also recommend, because of the recent anthrax scare,
if you should mail in your suggestions it will not get to us
for about a month. So would you fax it to us? Otherwise--I am
still receiving mail from Hawaii dated October last year.
Mr. Stern. Mr. Chairman, may I make a suggestion?
Chairman Inouye. Yes, sir.
Mr. Stern. With all due respect, given the collaborative
effort we are engaging in to seek a resolution that is
comfortable for everyone, particularly the Senate, I would
encourage the parties, if I might use my opportunity at the
microphone, to exchange their views amongst one another in
addition to submitting them to the committee. I may be speaking
out of turn when I suggest that.
Chairman Inouye. You are a good mediator. Thank you very
much.
With that, I thank all of you for your testimony. It has
been very helpful. The hearing is adjourned.
[Whereupon, at 5:22 p.m., the hearing were adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Albuquerque, NM, May 3, 2002.
Senator Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Attention: Michael Connor, Kira Finkler, Malini Sekhar
Re: Supplemental Testimony and Suggested Amendments to S. 2018
Dear Senator Bingaman: Thank you for the opportunity to appear
before the Committees on Energy and Natural Resources and Indian
Affairs on April 24. I was thrilled to participate and present the
views of the Sandia Mountain Coalition to the Committee concerning S.
2018, which we urgently hope will be adopted by Congress, with our
amendments included.
I am enclosing the answers to the questions sent to me by the
Republican members of the Committee, which includes a draft of an
amendment defining of ``New Uses'' as requested by Senator Inouye at
the hearing. I hope that staff will add any appropriate citations that
are missing from the draft concerning statutory mandates which should
be excluded from the right given to the Pueblo in Section 5 of S 2018
to ``consent to new uses''.
I will try to fax the amendment directly to Senator Inouye's
office, but would appreciate it if your office provided it to him as
well, along with the cover letter to him which I am also enclosing.
Thank you for your initiative in trying to resolve this
controversy.
Very truly yours,
Anita P. Miller.
Co-Chair, Sandia Mountain Coalition.
Supplemental Answers to Questions Fromr Republican Committee Members by
Anita Miller
1. I suggest the following definition of ``trust'', as used in the
Title of the Act and name of the Area:
(a) TRUST: ``trust'' as used in the title of this Act and in
the name of the Area does not confer upon the Area the
customary attributes of ownership of territory by the United
States to be held in trust for an Indian Tribe. As used in the
title and name of the Area, ``trust'' connotes the Pueblo of
Sandia's cultural interest in the Area. ``Trust'' as used in
the title of this Act and in the name of the Area is also
distinguishable from the word ``trust'' as used in Section 8(e)
herein, as it refers to the La Luz Tract and subsequent
acquisition by the Pueblo of private land within the Area.
2. ( ) NEW USES AND ACTIVITIES
A definition of ``New Uses and Activities'' is attached hereto as
Appendix 1. This definition is taken in part from the Management
Agreement signed by the Pueblo of Sandia, the United States Departments
of Justice, Agriculture and the Interior, and the Sandia Peak Tram
Company, but not signed by Bernalillo County, the City of Albuquerque
and the Sandia Mountain Coalition. We want the Management Agreement
``decoupled'' from S. 2018, as covered in our oral and written
testimony.
We like the definitions of ``existing uses and activities'',
``modified uses and activities'' and ``new uses and activities'' in the
Management Agreement, however, as supplemented in discussions this week
with local Forest Service officials, and think that they should be
included in the Act for clarification, even though they will make the
Act quite a bit longer. They will eliminate possible controversy over
whether something proposed by the Forest Service is a ``new use''
subject to Pueblo consent, or a ``new activity'', perhaps not subject
to Pueblo consent. We have also added specific exceptions to the
Pueblo's right of consent.
( ) NATIONAL FOREST CHARACTER: ``National Forest character'' means
the characteristics of natural, undeveloped wilderness attributed to
National Forest land which enhance its spiritual and recreational use
and enjoyment by all citizens.
3. I would like to see this legislation specifically withdraw or
supersede the Leshy Opinion, if that is legally or politically
feasible. I believe that the Leshy Opinion authorizes tribes which have
not availed themselves of the Indian Claims Commission Act and Quiet
Title Act to seek ``resurveys'' from the Secretary of the Interior,
which in reality are stale claims which should have been asserted
within the proper time limits for doing so. This ``end run'' will most
likely result in new claims by other Native and ethnic groups in New
Mexico.
As for the legislation, itself, it probably will encourage Pueblos
in New Mexico and Indian Tribes nationally to make claims which may or
may not have merit, and if they are denied, litigate them in hopes of
obtaining a settlement gives them a ``sense of ownership'' and greater
authority in the management of the land claimed, as S. 2018 will do for
the Sandia Pueblo.
4. This claim differs from Spanish Land Grant claims in Northern
New Mexico as follows:
(a) Spanish land grants for Indian Pueblos were made under
different ``rules'' than land grants to Spanish individuals and
``communities''. Spanish land grant communities were laid out
according to the ``Laws of the Indies''. The Church and Plaza
were at the center of the grant, surrounded by private homes
and gardens. The ``outer'' lands were for grazing in common by
the community. After the United States acquired New Mexico, the
``common lands'', which were not ``owned'' by individuals, were
either appropriated into National Forests, or ``stolen'' by
unscrupulous ranchers, who recorded deeds in their ovvn names.
In some cases, Anglo ranchers and merchants accepted deeds to
individual parcels within land grants as security for loans
given to land grant members during hard financial times.
The descendants of land grant communities are trying to get
back the ``common lands'' which are now in National Forests. I
believe that the New Mexico Congressional Delegation is now
working on legislation to enable land grant heirs to reopen
land grant claims against the United States.
(b) The Sandia Pueblo Claim is not based on allegations of
expropriation of Pueblo land by the United States as are the
Spanish Land Grant claims. The Sandia claim alleges that the
survey done by Clements did not follow the proper Eastern
Boundary, as set forth in the David Whiting translation
confirmed in its patent issued in 1862. It believes that since
the survey was incorrect, all that's needed is to resurvey and
``correct'' the patent.
As you know, we believe that Whiting deliberately
mistranslated the original Sandia Pueblo land grant documents,
still in the possession of the Pueblo, by saying that the
Eastern boundary of the Pueblo was the ``main ridge'', rather
than ``[facing] the ``Sierra Madre'' and changing other
boundary ``calls'' as well. Since Whiting actually confirmed
the Clements survey, however, which more accurately reflects
the ``four square leagues'' formal Pueblo, which the Grant
documents specifically describe, we do not believe that the
claim has merit.
I don't believe that S. 2018 will specifically set a precedent for
non-Indian Spanish Land Grant claims. I think, however, that Spanish
Land Grant heirs will be encouraged by the success of the Sandias, who
didn't raise their claim for 250 years, to press forward with their
claims, which they have asserted continuously since their land was
placed in the public domain.
* * *
draft amendments ``new uses or activities''
amendment
Add a definition to Section 3. Definitions as follows:
(NEW MATERIAL)
( ) USES OR ACTIVITIES: ``Uses or Activities'' means those uses and
activities on Federally owned land which are authorized by a special
use authorization issued at the discretion of the Secretary. ``Uses or
Activities'' also includes uses and activities within the statutory
discretion granted to the United States Forest Service's for management
of National Forest and National Wilderness areas.
( ) EXISTING USES OR ACTIVITIES. ``Existing Uses or Activities''
means uses and activities occurring in the Area at the time the Act is
enacted, or which have been authorized in the Area after 11/1/95. These
uses and activities include, but are not limited to: National Forest
System authorized trails, trailheads, roads, picnic areas, structures,
parking lots and facilities; routine road and trail maintenance; all
closure orders applicable to the Area; the recreation fee demonstration
program; animal damage and disease control measures; access to Tram
facilities outside the Area; and all recreational activities within the
Area.
Existing recreational activities and uses include: the La Luz Run,
running, jogging, hang gliding, parasailing, back-country camping,
meditation, spiritual renewal, religious observances, picnicking,
cross-country skiing, trapping, interpretation education, hiking,
biking, rock climbing, bird watching, wildlife viewing, walking, dog
walking, bow hunting, snow shoeing, driving, skating, sledding,
horseback riding photography, painting, sketching, geo-caching, etc.
Some recreational activities require special use authorizations and
some do not. To the extent that the Sandia Peak Tram Company requires
access to lands not described in the December 1, 1993 special Use
Permit, but within the non-wilderness area adjacent to the tram line,
for maintenance or equipment replacement, access to and use of those
lands shall be deemed an ``existing use or activity'' for the purposes
of this Act.
The Forest Service retains its authority to regulate all existing
uses or activities, and, where appropriate, to modify, suspend or
revoke all special use authorizations.
( ) MODIFIED USES OR ACTIVITIES: ``Modified Uses or Activities''
means existing uses or activities which are being modified or
reconfigured, but which are not being significantly expanded. Examples
include a trail or trailhead being modified, such as to accommodate
handicapped access, or improved, a parking area being reconfigured
though not expanded, or a special use authorization for a group
recreation activity being authorized for a different use area or time
period.
The Forest Service retains its authority to regulate modified or
reconfigured uses or activities.
( ) NEW USES OR ACTIVITIES: ``New Uses or Activities'' means uses
or activities not occurring in the Area at the time the Act is enacted
and not listed in the list of existing uses, as well as existing uses
or activities that are being modified such that they significantly
expand or alter their previous scope, dimensions, or impacts on the
land, water, air and/or wildlife resources of the Area. New uses or
activities may include but are not limited to: a new trail, trailhead,
road, picnic area, parking lot, or significant new structure or
facility in support of these features; new recreation or other
activities not occurring in the Area on, the date of enactment of the
Act, but otherwise permissible in National Forest and wilderness areas;
and new special use authorizations and new rights-of-way.
The requirements of Pueblo consent in Section 5.(a)(2)(A) do not
apply to the following new uses or activities:
(1) new uses or activities that are categorically excluded as
categorical exceptions from documentation in an EIS or EA (7
CFR 1.b.3 and FSH 31 1.a) or to activities undertaken to comply
with the Endangered Species Act of 1973, Amended 1996 (ESA, 16
U.S.C. Chapter 35, Sections 1531-1244 (1973, 1996) relating to
species and habitat preservation; or
(2) uses or activities that would lead to further physical
development of the Piedra Lisa Tract, including but not limited
to the right of reasonable access to the property, pursuant to
(cite statute guaranteeing access to inholdings).
(3) uses or activities to authorize the operation and
maintenance of the Sandia Peak Tram and associated facilities;
or
(4) public occupancy and use for noncommercial recreational
purposes; or
(5) any structure or activity deemed essential for the
control of natural or human-caused forest fires and any
rehabilitation required as a result of such fires to address
damage to Forest and wilderness land, water wildlife and other
resources, including but not limited to construction of fire
watch towers and communication facilities, aerial and ground
spraying of fire retardants, ``burns'' to control underbrush
and construction of flood control structures; or
(6) any structure or activity deemed essential for the
control of natural and human-caused disasters, including but
not limited to flooding, landslides, avalanches, rock slides,
poisoning of air, water or wildlife, and any rehabilitation
required as a result of such disasters to address damage to
Forest and wilderness land, water, wildlife and other
resources, including but not limited to flood control
structures, structures to control landslides, avalanches, rock
slides or poison; or
(7) any structure or activity related to national security
and defense, including but not limited to communications
structures, placement of weapons and land and aerial
reconnaissance; or
(8) any structure or activity deemed appropriate by the
Forest Service for the control of infection and/or disease in
humans, animals or plants, including but not limited to the
construction of corrals or other structures for quarantine;
(9) proposed new uses which address compliance with or
mandates required by the following Federal Statutes:
Statutes related to fire management, including but
not limited to the National Environmental Policies Act
(NEPA), 42 U.S.C. Sections 4321-4347 (1970)
Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. Chapter 126, Sections 12101-12213 (1990)
Statutes mandating construction of communications or
defense facilities in the area.
Statutes related to disease control
(10) Any proposed new or modified use or activity within the
authorized management discretion of the United States Forest
Service which minimally increases the gross physical
development of the Area, including, but not limited to
relocation of trails, picnic grounds and other facilities
existing on the effective date of this Act, establishment of
manned or automatic fee stations, kiosks or signposts for
posting of notices to Area users;
(11) Emergency decisions within the management authority of
the Forest Service and other Federal, State and local agencies
which affect the immediate health, safety and welfare of the
citizens of the United States and New Mexico.
amendment
SEC. 5. PUEBLO OF SANDIA RIGHTS AND INTERESTS IN THE AREA
(a) GENERAL--The Pueblo shall have the following rights and
interests in the Area:
(2) rights in the management of the Area specified in this Act
which include
(A) the right to consent or withhold consent to new uses or
activities as defined and limited in Section 3 herein.
______
Responses by Tim Cummins, Board of County Commissioners, Bernalillo
County, New Mexico to Supplemental Questions from Republican Committee
Members
Question 1. I understand that the Sandia Mountain Coalition has
stated it generally supports S. 2018, but would suggest some
modifications. What specific changes would the Sandia Mountain
Coalition like to see in this legislation please provide us specific
legislative language to address your concerns?
Answer. Although the Sandia Mountain Coalition and Bernalillo
County share concerns with S. 2018, the following response is from
Bernalillo County.
The veto power over new uses by the County of Bernalillo
unilaterally, the County of Sandoval unilaterally, or Sandia Pueblo
unilaterally is of great concern to us. Any of these three (3) parties
can veto a new use by themselves. There is no further discussion or
appeal process. The County of Bernalillo strongly recommends the
elimination of veto power for the County of Bernalillo, the County of
Sandoval and the Sandia Pueblo. Is a handicapped ramp a new use? Is a
new trail a ``new'' use? (p. 7, Sec. 5(a)(3)).
The addition of the following definitions would somewhat alleviate
the problems we see with the veto powers.
USES OR ACTIVITIES: ``Uses or Activities'' means those uses and
activities on Federally owned land which are authorized by a special
use authorization issued at the discretion of the Secretary. ``Uses or
Activities'' also includes uses and activities within the statutory
discretion granted to the United States Forest Service's for management
of National Forest and National Wilderness areas.
EXISTING USES OR ACTIVITIES. ``Existing Uses or Activities'' means
uses and activities occurring in the Area at the time the Act is
enacted, or which have been authorized in the Area after 11/1/95. These
uses and activities include, but are not limited to: National Forest
System authorized trails, trailheads, roads, picnic areas, structures,
parking lots and facilities; routine road and trail maintenance; all
closure orders applicable to the Area; the recreation fee demonstration
program; animal damage and disease control measures; access to Tram
facilities outside the Area; and all recreational activities within the
Area.
Existing recreational activities and uses include: the La Luz Run,
running, jogging, hang gliding, parasailing, back-country camping,
meditation, spiritual renewal, religious observances, picnicking,
cross-country skiing, trapping, interpretation education, hiking,
biking, rock climbing, bird watching, wildlife viewing, walking, dog
walking, bow hunting, snow shoeing, driving, skating, sledding,
horseback riding photography, painting, sketching, and geo-caching.
Some recreational activities require special use authorizations and
some do not. To the extent that the Sandia Peak Tram Company requires
access to lands not described in the December 1, 1993 special Use
Permit, but within the nonwilderness area adjacent to the tram line,
for maintenance or equipment replacement, access to and use of those
lands shall be deemed an ``existing use or activity'' for the purposes
of this Act.
The Forest Service retains its authority to regulate all existing
uses or activities, and, where appropriate, to modify, suspend or
revoke all special use authorizations.
MODIFIED USES OR ACTIVITIES: ``Modified Uses or Activities'' means
existing uses or activities which are being modified or reconfigured,
but which are not being significantly expanded. Examples include a
trail or trailhead being modified, such as to accommodate handicapped
access, or improved, a parking area being reconfigured though not
expanded, or a special use authorization for a group recreation
activity being authorized for a different use area or time period.
The Forest Service retains its authority to regulate modified or
reconfigured uses or activities.
NEW USES OR ACTIVITIES: ``New Uses or Activities'' means uses or
activities not occurring in the Area at the time the Act is enacted and
not listed in the list of existing uses, as well as existing uses or
activities that are being modified such that they significantly expand
or alter their previous scope, dimensions, or impacts on the land,
water, air and/or wildlife resources of the Area. New uses or
activities may include but are not limited to: a new trail, trailhead,
road, picnic area, parking lot, or significant new structure or
facility in support of these features; new recreation or other
activities not occurring in the Area on the date of enactment of the
Act, but otherwise permissible in National Forest and wilderness areas;
and new special use authorizations and new rights-of-way.
The requirements of Sandia Pueblo consent in Section 5.(a)(2)(A) do
not apply to the following new uses or activities:
(1) new uses or activities that are categorically excluded as
categorical exceptions from documentation in an EIS or EA (7 CFR 1.b.3
and FSH 31 1.a) or to activities undertaken to comply with the
Endangered Species Act of 1973, Amended 1996 (ESA, 16 U.S.C. Chapter
35, Sections 1531-1244 (1973, 1996) relating to species and habitat
preservation; or
(2) uses or activities that would lead to further physical
development of the Piedra Lisa Tract, including but not limited to the
right of reasonable access to the property, pursuant to (cite statute
guaranteeing access to inholdings).
(3) uses or activities to authorize the operation and maintenance
of the Sandia Peak Tram and associated facilities; or
(4) public occupancy and use for noncommercial recreational
purposes; or
(5) any structure or activity deemed essential for the control of
natural or human-caused forest fires and any rehabilitation required as
a result of such fires to address damage to Forest and wilderness land,
water wildlife and other resources, including but not limited to
construction of fire watch towers and communication facilities, aerial
and ground spraying of fire retardants, ``burns'' to control underbrush
and construction of flood control structures; or
(6) any structure or activity deemed essential for the control of
natural and human-caused disasters, including but not limited to
flooding, landslides, avalanches, rock slides, poisoning of air, water
or wildlife, and any rehabilitation required as a result of such
disasters to address damage to Forest and wilderness land, water,
wildlife and other resources, including but not limited to flood
control structures, structures to control landslides, avalanches, rock
slides or poison; or
(7) any structure or activity related to national security and
defense, including but not limited to communications structures,
placement of weapons and land and aerial reconnaissance; or
(8) any structure or activity deemed appropriate by the Forest
Service for the control of infection and/or disease in humans, animals
or plants, including but not limited to the construction of corrals or
other structures for quarantine;
(9) proposed new uses which address compliance with or mandates
required by the following Federal Statutes:
Statutes related to fire management, including but not limited to
the National Environmental Policies Act (NEPA), 42 U.S.C. Sections
4321-4347 (1970).
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. Chapter
126, Sections 12101-12213 (1990).
Statutes mandating construction of communications or defense
facilities in the area.
Statutes related to disease control.
(10) Any proposed new or modified use or activity within the
authorized management discretion of the United States Forest Service
which minimally increases the gross physical development of the Area,
including, but not limited to relocation of trails, picnic grounds and
other facilities existing on the effective date of this Act,
establishment of manned or automatic fee stations, kiosks or signposts
for posting of notices to Area users;
(11) Emergency decisions within the management authority of the
Forest Service and other Federal, State and local agencies which affect
the immediate health, safety and welfare of the citizens of the United
States.
SEC. 5. PUEBLO OF SANDIA RIGHTS AND INTERESTS IN THE AREA
(a) GENERAL--The Pueblo shall have the following rights and
interests in the Area:
(2) rights in the management of the Area specified in this Act
which include
(A) the right to consent or withhold consent to new uses or
activities as defined and limited in Section 3 herein,
2) The County of Bernalillo feels strongly that the Settlement
Agreement and the Management Act should he ``de-coupled'' from the
legislation.
The County position is that the Legislation, S. 2018, should
control independently and not compromise the Legislation with the
ambiguous language of the Settlement Agreement or Management Act.
Delete all references to the Settlement Agreement and Management Act.
In addition to the de-coupling, similar language problems
culminating in ambiguities in the legislation can be corrected as
follows:
a) Define ``Trust'' on page 4, Section 3 (o.) to be:
TRUST. ``Trust'' as used in the title of this Act and in the name
of the Area does not confer upon the Area the customary attributes of
ownership of territory by the United States to he held in trust for an
Indian Tribe. As used in the title and name of the Area, ``trust''
connotes the Pueblo of Sandia's cultural interest in the Area,
``Trust'' as used in the title of this Act and in the name of the Area
is distinguishable from the word ``trust'' as used in Section 8(e)
herein, as it refers to the La Luz Tract and subsequent acquisition by
the Pueblo of private land within the Area.
b) Although some of the language has been changed in this
legislation, there are still places where language is still not
``parallel'' for the public and the Sandia Pueblo. Section 4(a)(1) and
4(a)(3) on page 6 should state ``to recognize and protect in perpetuity
the Pueblo's rights, interests and uses in and to the Area.'' Section
(a)(3) should also read ``to recognize and protect in perpetuity the
public's longstanding, rights, interests, and uses in and to the
Area.''
3) The Act states there is no exemption from applicable federal
wildlife protection laws but an exemption to that exemption does not
allow prosecution if a person exercises traditional and cultural use
rights. For safety and other purposes, particularly sport hunting, how
broad is this? (p. 11, Sec. 6, lines 11-25)
4) There is always complexity involved when discussing and setting
criminal and civil jurisdiction. Certainly this places unwary residents
in a very difficult position. The County thinks the present system of
criminal jurisdiction would work best. The Sandia Pueblo should only
have jurisdiction over crimes classified as misdemeanors. The Sandia
Pueblo should have no jurisdiction over crimes committed by non-Native
Americans. (p. 12, Sec. 7)
The County of Bernalillo, again for safety of all residents, has
concerns regarding jurisdiction over sport and recreation hunting. The
Pueblo's regulations being ``substantially similar'' to those of New
Mexico State Game and Fish is going to he problematic. Who will enforce
these ``substantially similar'' regulations? (p. 14, Sec. 7(b)(3)(B))
This sport and recreational hunting Section may have to have its own
separate civil and criminal jurisdiction ``spelled out.''
Suggested amendments for criminal and civil jurisdiction are as
follows:
a) Section 7(a)(5) would read, ``The Pueblo shall not have criminal
jurisdiction over any non-Indian.
b) Section 7(b)(4) between 7(b)(3) and 7(b)(4) add the language
``The Pueblo shall not have regulatory, adjudicatory or taxation
jurisdiction over any non-Indian.
c) Section 7(b)(5) would read ``The Pueblo shall not have criminal
jurisdiction over any non-member.
d) Section 7(b)(#) between 7(b)(3) and 7(b)(4) add the language
``The Pueblo shall not have regulatory, adjudicatory or taxation
jurisdiction over any nonmember.
There are numerous Indian law cases supporting these four
amendments.
5) I believe all parties should have their attorneys fees
reimbursed for working on these issues that have benefited the general
public. I understand there is past precedent to do this with these
types of issues. One such precedent is the dispute between private land
owners and the Pueblo of Santo Domingo in New Mexico. Public Law 101-
556, Section 4, provided for payment to the affected landowners of
approximately $1.6 million.
A suggested amendment to provide for attorneys fees should follow
the one existing sentence of Section 14(a) as follows: ``The County of
Bernalillo, the Sandia Pueblo, and any person who owns or has owned
property within the disputed claim area referred to in this Legislation
and who has incurred actual costs in participating in the
administrative, legislative, or court proceedings related to this title
dispute may apply for reimbursement of legal fees, costs and expenses.
Any reimbursed expenses to any one party shall not exceed
$750,000.00.''
There are other issues such as the non-applicability of new federal
laws or amendments to existing federal laws that will not apply to the
Claim Area (p. 7 and p. 9) which should be stricken: the payment of
money to the Pueblo should Congress ever diminish the wilderness of the
Claim Area (p. 10, lines 17-25); and the withdrawal of the Leshy
opinion and the vacation of Judge. Greene's opinion that should occur
in the legislation to the extent legally possible.
Question 2. On page 7 of your testimony you argue that this case
has never been heard on the merits of the case, yet Mr. Leshy and
Governor Paisano both act as if the case was won in the District of
Columbia District Court of Appeals. Could you document your contention?
Answer. The U.S. District Court for the District of Columbia only
dealt with cross-motions for Summary Judgment. Summary judgment is
granted when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Judge Harold H.
Greene stated that the rule of a court in reviewing final agency
decisions is limited and Section 706 of the Administrative Procedures
Act provides that a court may set aside an agency action only where it
finds the action ``arbitrary, capricious. an abuse of discretion, or
otherwise not in accordance with law.
Judge Greene goes on to say the Tarr opinion favoring the lands of
Pueblo was issued without relying on the law-standing policy of Indian
favoring interpretations. In other words, there was ``sufficient
ambiguity'' to trigger the Indian-favoring policy of interpretation in
their favor. Judge Greene goes on to say, ``The Court is perplexed that
that Department dared claim lack of ambiguity in the present case.''
Using more detail, Judge Greene Goes on to say, ``while the
congressional intent to confirm the land that the Pueblo already owned
may be quite clear, the question of exactly what land the Pueblo owned
at the time of the 1858 statute is not clear at all.'' This is clearly
an issue of material fact and summary judgment should not have been
rendered for the Sandia Pueblo. There was no full trial before Judge
Harold Greene.
With regard to the United States Court of Appeals, the three-judge
panel heard the United States District Court's remand order and grant
of Summary Judgment to Sandia Pueblo. It was not an appeal of a full
trial on the merits. The United States Court of Appeals decided the
Order from Judge Greene regarding remand to Interior and summary
judgment in favor of Sandia Pueblo was not a final order and therefore
the appeal was dismissed. The District Court's Order ``neither entered
a judgment declaring that the 1748 Spanish land grant--identifies and
designates the true boundaries of the Pueblo nor directed Interior to
issue a new survey.'' The court remanded the case to Interior for
further proceedings stating the Department of the Interior should re-
open the record to solicit additional comments. This case has still not
had a full hearing on the merits. The case is presently remanded to the
U.S Department of the Interior District Court Opinion and U.S. Court of
Appeals Opinion attached as Exhibit 1 and 2.
Question 3. As a signature (sic) to Settlement Agreement could you
provide us with your understanding of what a new use is and your
understanding of the term ``preserve National Forest Characteristic''?
Answer. The County of Bernalillo did not sign the Settlement
Agreement but would submit that almost any change ``in the field''
could be a new use. The definitions of uses suggested to clear major
problems with the veto power in the legislation given unilaterally to
the Sandia Pueblo, the County of Bernalillo, and the Pueblo of Sandia
is presented in response to number 1 of this document.
Our interpretation of ``preserving National Forest
Characteristics'' would be that the public land be left in its natural
state open to all citizens (including future population growth) for
their spiritual and recreational enjoyment.
Question 4. If we agree to S. 2018 are you comfortable that the
fire protection that is needed by the citizens of your county will be
provided?
Answer. We will be comfortable that the fire protection needed by
our citizens is adequate if language in the bill makes it clear that
the Forest Service has total discretion to provide for fire protection,
prevention, suppression and rehabilitation. This would include making
fire protection exempt from any designation as a new use and certainly
not subject to the consent of the Pueblo of Sandia, the County of
Bernalillo, or the County of Sandoval.
Question 5. How will the citizens of your county feel if a five
dollar per day recreation user fee is imposed to enter into this area?
Under this legislative proposal, is it your understanding that you will
have the right to object to a recreation user fee?
Answer. It is our experience that a recreation user fee or parking
fee is presently being charged by the Forest Service and that an
individual we believe to be a volunteer collects it. Some citizens may
feel a $5.00 [per vehicle] access fee is a restriction to access but
for the most part, it would seem a user fee to maintain the area would
be accepted. The County of Bernalillo never requested the veto power
given to it in S. 2018. The County of Bernalillo would not intend to
veto access fees but would certainly like to be consulted concerning
any significant fee increases.
Question 6. Are you comfortable that your needs, and the needs of
all private property owners iii your county for rights-of-way are
completely protected in this legislative package? How long do you think
that the counties needs will be met under this agreement?
Answer. We are pleased that the private property owners have their
rights of way reasonably protected in this legislative package.
However, they will be completely protected if the Management Agreement
and Settlement Agreement are de-coupled from the legislation and other
language suggestions to eliminate ambiguities arc adopted. This is the
only way that our long sought goal of permanence can be achieved.
______
Pueblo of Sandia,
Bernalillo, NM, May 8, 2002.
Hon. Jeff Bingaman,
Chairman, Senate Committee on Energy and Natural Resources, Dirksen
Senate Office Building, Washington, DC.
Hon. Daniel Inouye,
Chairman, Senate Committee on Indian Affairs, Hart Senate Office
Building, Washington, DC.
Re: S. 2018--Answers to Supplemental Questions submitted following
April 24, 2002, hearings before the Senate Energy and Natural
Resources and hidian Affairs Committees
Dear Senators Bingaman and Inouye: On behalf of the Pueblo of
Sandia, I want to express my sincere thanks to both of you for the
opportunity to share the Pueblo's thoughts and concerns on S. 2018. I
cannot emphasize enough how important this issue is to our people, and
to the continuing vitality of our culture and traditions. Your efforts
to address our concerns are sincerely appreciated, and I am pleased to
submit the enclosed answers to supplemental questions posed to me to
assist in further consideration of our position.
We look forward to working with the Committees toward a fair and
just resolution of our claim to Sandia Moantain and, of course, would
be pleased to provide you with any further information that you may
require.
Sincerely,
Stuart Paisano,
Governor.
[Enclosure.]
Governor Paisano's Answers to Supplemental Questions
Question 1. Solicitor Myers testified that it would be better to
legislate all necessary provisions of the settlement agreement and the
management plan and forego incorporating these documents by reference.
Would you support this?
Answer. Yes, so long as all substantive protections in the
settlement agreement and management plan are placed in the legislation.
The Pueblo would be pleased to work With the Committee to accomplish
this.
Question 2. You recommended an amendment to the bill that exempts
the Area from the National Forest Management Act and the Cibola
National Forest Land and Resource Management Plan because you want to
``be certain the Management Plan is not foreclosed by any of these
authorities.'' Why do you believe such a broad exemption is necessary?
What provisions of the Management Plan do you believe would be
foreclosed by the NFMA and the forest plan?
Answer. These provisions were included in the Settlement Agreement
to be certain that the benefits the Pueblo received under the
Management Plan were not in conflict with these other statutes and
regulations. The parties to the settlement negotiations, including the
Department of Agriculture's representatives, all thought that this was
necessary and appropriate, given the Area's unique and protected
status. For example, because grazing, timber production, and mineral
production are prohibited in the Area, laws such as the Forest and
Rangeland Renewable Resourccs Planning Act of 1974 have no relevance or
applicability to the management of the Area. Likewise, because the Area
is to have its own Management Plan, the Area should not be subject to
the Cibola National Forest Land and Resource Management Plan.
Explicitly excluding these statutes, regulations, and management plan
provides a measure of certainty and permanence that would not otherwise
exist if the Area remained under the existing land management process
or was subject to other laws which are inconsistent with the Settlement
Agreement, the Management Plan, or ratifying legislation. The non-
applicability of certain statutes, regulations, and management planning
processes was also something that the Pueblo negotiated for as part of
the consideration for resolving our title claim to help ensure that our
management rights are protected.
If the benefits and substantive provisions contained in the
Management Plan are specifically included in the legislation (see
answer to Question 1), perhaps these exemptions would he unnecessary so
long as the legislation clearly provides that in event or a conflict or
inconsistency with other statutes, this Act controls.
Question 3. If section 5(c) of S. 2018 were amended to require the
U.S. government to compensate you if the Forest Service approves any
new uses in the Area (with exceptions for safety or emergency
measures), would you support such an amendment in lieu of the right to
consent or withhold consent to new uses?
Answer. No. An essential part of the settlement for the Pueblo is
absolute and perpetual protection against further development of our
sacred Mountain as a result of administrative decisions by the Forest
Service. Despite the current commitment of the Forest Service to avoid
new development, the history of the Forest Service's administrative of
the Mountain counsels in favor of the Pueblo consent provision so as to
avoid further development in thc long run. Congress obviously retains
the authority to approve new uses and S. 2018 should be amended to
provide that if Congress does so, the Pueblo would be entitled to
compensation. The purpose of such an amendment would simply be to
provide a disincentive for such Congressional action, as no amount of
money could adequately compensate the Pueblo for future incursions on
the Mountain.
Question 4. Governor, this legislation gives the Pueblo of Sandia
complete authority over the the traditional and cultural uses in this
area, including the religious activities of other Native Americans.
Given the long history of Hispanic American habitation in the area, in
you opinion would your Tribe also have authority over non-native
Americans who may want to visit the area to participate in religious
activities that comply with the Wilderness Act?
Answer. No. The bill does not confer any authority on the Pueblo
over non-indians, and the Pueblo does not seek such authority.
Question 5. Governor, you've heard Mr. William Myers state that the
Tram right-of-way is not part of the Area covered in the Settlement
Agreement. Mr. Walter Stern's testimony, on page 7, suggest that S.
2018 ``clears title to private lands, subdivisions and lands subject to
the Tram Company's Special Use Permit (encompassing the tram line and
associated facilities) will not be subject to the special land
management regime established under this Bill.'' Do you agree with both
Mr. Myers and Stern's interpretation of the Settlement Agreement and
this Senate Bill 2018?
Answer. Yes. Section 8(d) of S. 2018 so provides, and also states
that if any lands dedicated to the Tram facilities should in the future
be excluded from the Tram's special use permit through expiration,
termination or amendment, those lands would then be included in the
Area and subject to the special land management regime established in
S. 2018.
Question 6. You have stated that you feel Pueblo consent to new
uses will ``best serve'' the ``perpetual preservation of the
wilderness,'' and that you disagree the counties should have the same
rights to consent. Please explain why you feel the counties' right to
consent, or the current federal processes involving public input into
federal land use, does not adequately serve to protect the area?
Answer. Although the Pueblo believes its legal ownership of the
Mountain is clearly established by the 1858 Act of Congress confirming
our eastern boundary as the main ridge of Sandia Mountain, we agreed to
extinguishment of that title, continued Forest Seervice management and
public access to these lands, so long as we could be assured that there
would be no additional incursions or development on our sacred
Mountain. Our Pueblo has been one with the Mountain since before
recorded time and will be forever. We need assurance that this Mountain
will be preserved and protected forever (see answer to Question No. 3).
Federal policies, such as wilderness protection, could change. Policy
changes often have happened to the detriment of Native American rights.
We oppose the Counties' having consent authority comparable to ours
because they have no ownership interest in the Mountain like we do, nor
will they necessarily be perpetually committed to its preservation 25
or 50 years from now, as we will be. Also, unlike the Pueblo, they did
not contribute any property interests (road and trail easements) that
are essential to the public's continued use of the Area. In addition,
we understand neither Sandoval nor Bernalillo County sought this
consent authority.
Finally, we submit that the interests of the public are adequately
represented as to new uses and other management issues by the Forest
Service.
Question 7. You have stated that you support S. 2018 because it
will ``codify the Pueblo's right to use the Mountain to continue [your]
centuries-old traditions.'' Do you believe that you currently do not
have these statutory rights?
Answer. Yes, I do. Our traditions do not simply require access to
the Mountain, though this has been infringed in the past by the Forest
Service. Our traditions and indeed our very way of life require us to
preserve and protect the Mountain as its stewards. S. 2018 ensures
thia. I am aware of no existing statute that provides this protection.
Question 8. Why will you not support this legislation unless it
contains, for example, exclusive authority to the Pueblo for hunting
regulation?
Answer. As I explained in my testimony (and also in answering
Question 6), the Pueblo made a number of very painful concessions in
the settlement agreement in order to resolve this controversy. Despite
our strong claim to legal ownership of the Mountain, we agreed to
extinguishmnt of our title (subject to the rights and interests
recognized in the settlement agreement), United States title and Forest
Service Management of the Mountain, continued unrestricted public
access to the Mountain, confirmation of all private titles, and road
and utility easements for the Forest Service and subdivisions.
The Pueblo stands by and fully supports the settlement agreement as
a package. But given the strength of our legal claim and the strong
commitment of the Pueblo to preserving the Mountain, we cannot fairly
be expected to make additional concessions. The rights and interests we
retained in the settlement agreement include exclusive authority to
regulate hunting by our members and members of other tribes we
authorize to use the Mountain for traditional and cultural purposes.
Hunting is a very important traditional use of the Mountain for
Pueblo members. However, game is not nearly as plentiful as it used to
be, and we originally sought exclusive hunting rights in the Area as a
way of reducing hunting pressure on the Area's wildlife and ensuring
the continuation of this traditional activity. But once again we were
forced to compromise. Under S. 2018 the Pueblo has authority to
regulate hunting; and trapping by our own members or mernhers of other
federally recognized tribes we authorize to use the Mountain for
traditional and cultural purposes. We would not regulate any non-
Indians. We are also willing to enact and enforce regulations
substantially similar to those of the State and Forest Service
concerning seasons, game management, types of weapons, proximity of
hunting and trapping to trails and residences, and comparable safety
restrictions. We hope these concepts will be acceptable to the
Congress.
Question 9. You indicate in your testimony that you will not
support the changes in S. 2018 unless the Pueblo ``receives
commensurate benefits in return.'' You suggest a land exchange of all
wilderness land within Sandoval County. Will you please expand on this
proposal? And would such a proposal satisfy your claims to the
remainder of the area, or satisfy you in lieu of this legislation?
Answer. As I stated in my answer to Question 8, the Pueblo supports
the settlement agreement as a whole. While S. 2018 is patterned on the
settlement we agreed to, it does not reduce or eliminate some critical
elements in that agreement that benefited the Pueblo. If the Committee
decides to make the changes to the settlement agreement included in S.
2018, the Pueblo believes Congress should also increase the benefits
the Pueblo receivds. In my testimony, I suggested a land transfer of
Mountain lands in Sandoval County to the Pueblo, in exchange for lands
we have purchased in the Evergreen Hills and La Luz tracts. These lands
in Sandoval County are virtually all undeveloped, except for the Piedra
Lisa trail, for which we would grant a permanent easement to the Forest
Service, and the 160-acre Piedra Lisa tract currently owned by Mr.
Riordan and others, which would be exempt from the provisions of S.
2018. The only activities in this pristine and steep mountainous area
are hiking and rock-climbing, which would continue even if the lands
were transferred to us. All wilderness and other special restrictions
on use of these lands contained in the bill would also be imposed on
the transferred lands.
If this transfer is included in the bill, the Pueblo could accept
the more limited provisions in S. 2018 in the south half of the Area
(such as more limited authority over hunting and trapping by our
members in that part of the Mountain). The Pueblo would be pleased to
work with the Committee on specific language or on comparable benefits
in exchange for supporting the changes S. 2018 makes to the settlement
agreement--except for the County consent provision, which is
unacceptable to us.
I want to emphasize that this land transfer I propose would not be
sufficient to satisfy our interests in the rest of the area, nor would
we support it in lieu of the settlement legislation. Our proposal is
that the provisions of S. 2018 (except the County consent provision)
would apply intact to the rest of the publicly owned lands in the area,
and the wilderness protections and limitations on use would also apply
both throughout the entire area and to the lands transferred to the
Pueblo.
Question 10. Mr. Riordan testified that the federal government has
been attempting to eliminate his right of access. Would you be willing
to agree to a transportation right-of-way to the Piedra Lisa tract if
that would help move this legislation forward?
Answer. No. The Pueblo strongly opposes any new vehicular right-of-
way on the Mountain. S. 2018 preserves any rights Mr. Riordan and his
partners presently have. The Pueblo would support a provision in the
bill providing Mr. Riordan's group with compensation from the United
States for any access rights they may be able to prove under existing
law.
______
San Francisco, CA, May 8, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Re: Pueblo of Sandia Land Claim
Dear Senator Bingaman: What follows are my answers to the follow-up
questions from Republican Committee Members submitted after the hearing
on April 24.
Question 1. In the case of all re-surveys, isn't it the custom and
practice to utilize past survey notes to reestablish the land lines?
Answer. I cannot speak knowledgeably about such customs and
practices.
Question 2. If the Settlement Agreement sunsets and there is a need
for re-surveying. If that happened what survey notes would the
Department of Interiors [sic] surveyors utilize to undertake the
survey? Would the BLM surveyors utilize the Clements survey notes or
would they utilize the Bustamante notes? Since neither of these sets of
notes seem to establish the eastern boundary on the crest of the
Sandia, what notes could the BLM use to establish the eastern boundary
at the summit of Sandia Peak?
Answer. My January 2001 Opinion speaks for itself on the intention
of the government of Spain regarding the eastern boundary of the Pueblo
of Sandia. In general, I believe that surveyors of grants should
attempt to carry out the intention of the grantor.
Question 3. You indicated during your testimony that you felt a
strong need to respond to Judge Greens [sic] decision after the
Settlement Agreement was signed in April of 2000, could you tell us why
it took you and your staff until January 19, 2001 to complete your
opinion?
Answer. As I testified, I had long harbored doubts about the
correctness of the Tarr Opinion. I had decided, however, not to disturb
it until a court had had the opportunity to review it. In 1998, the
district court rejected the Opinion and sent the matter back to the
Department for further action. The Department and the intervenors
appealed this ruling to the court of appeals. After the settlement was
reached in April 2000, the Department (and the Tram Company, I believe)
moved to dismiss their appeals. But other intervenors continued with
their own appeals of the district court decision, so there remained the
possibility that the court of appeals would rule on the merits of the
appeal. The court of appeals dismissed the appeal in November 2000, on
the basis that the next step was for the Depatment to move forward with
the reexamination of the Tarr Opinion that had been directed by the
district court. Because of that, and because the settlement essentially
expires on November 15, 2002 unless Congress has taken action, I
decided it was appropriate to move forward with the reexamination of
the Opinion in compliance with the court's direction.
Question 4. During your testimony you indicated that you relied on
several historians other than Mr. Hordes in preparation of your January
19, 2001 Solicitors Opinion. Would you provide us with a list of both
the documents and historians you relied upon to develop your Opinion?
The January 19, 2001 Opinion contains numerous references to the
work of other experts. See, e.g., pp. 5-15. The lengthy administrative
record in this matter contains many historical analyses and studies and
references to published historical works. Eight attorneys in the
Solicitor's Office (who are identified at the end of the Opinion)
worked with me in preparing this Opinion. While I relied extensively
upon their research, I believe I examned some parts of the record
myself in the course of preparing the Opinion, and in grappling with
this issue over the years since 1993. As I testified, I have confidence
that the conclusions of the Opinion on the matter of historical
interpretation are sound and would be upheld by the courts.
Question 5. When did you begin work on your January 19, 2001
Opinion on this issue?
Answer. As I testified, I began examining the eastern boundary
question in the spring or summer of 1993, when the Pueblo asked me to
reexamine the Tarr Opinion: Over the next seven and one-half years, I
read and thought about this matter, and had numerous meetiigs and
discussions about it with attorneys in my office and with officials of
the Departments of Justice and Agriculture (as well as the Interior).
As I indicated in response to question #3, although I had done a lot of
work on this issue, I did not make a final decision to go forward with
an Opinion until shortly after the Court of Appeals dismissed the
appeal in November 2000. It was then that, along with the other
identified members of the Solicitor's office, I began the actual
process of drafting, the Opinion, buiilding on all our previous work on
the subject.
Question 6. Was your opinion made publically available on January
19, 2001 or on a later date?
Answer. I believe I directed my staff to distribute the Opinion in
the usual way that we disseminated such legal opinions, but I do not
have any specific recollection about when or how it was made publicly
available.
Question 7. At what point in your tenure did you begin to consider
the preparation of your January 19, 2001 Opinion?
Answer. See responses to question #3 and 5 above.
Question 8. What was your involvement in the development of the
T'uf Shur Bien Preservation Trust Area management Plan and the
Agreement of Compromise and Settlement? Did you review these documents
prior to there [sic] being agreed to by the Department of the Interior?
Answer. To the best of my recollection, I did not participate
directly in these negotiations. The negotiators for the United States
(attorneys in the Solicitor's Office and the Departments of Justice and
Agriculture and other officials of these Departments) kept me generally
apprised of the progress of the negotiations. I was briefed on the
terms of the settlement fefore final agreement was reached. I do not
recall whether, prior to final approval, I reviewed the settlement
documents or made any suggestions or recommendations for change.
Question 9. Did you review these documents for potential conflicts,
if so, did you make any recommendations for changes?
Answer. See ansser to question #8.
I appreciate the opportunity to testify and submit these answers.
Please let me know if I can be of any other assistance.
Sincerely,
John D. Leshy.
______
The Simons Firm, LLP,
Santa Fe, NM, May 8, 2002.
U.S. Senate,
Committee on Energy and Natural Resources, Democratic Staff,
Washington, DC.
Re: Hearing on S. 2018--The T'uf Shur Bien Preservation Trust Area
Committee Members: Pursuant to your instructions of May 1, 2002,
enclosed please find Mr. Riordan's comments to the extra questions to
be submitted for the record concerning S. 2018--The T'uf Shur Bien
Preservation Trust Area.
Regards,
Thomas A. Simons, IV.
Responses to Questions From Senator Bingaman
Question. You indicated in your statement that you are currently in
litigation with the United States concerning the extent and scope of
your private property rights associated with the Piedra Lisa. Section
10(b) was added to the bill to ensure that those private property
rights, whatever they are, would not be affected by the Act. Can you
explain why this provision does not address the concerns expressed in
your statement?
Answer. Section 10(b) does not adequately protect my private
property rights in several ways. Before listing some of the specifics
concerning its inadequacies, please note that I am the owner of an
inholding, a property surrounded by Cibola National Forest. Therefore,
it is not just protecting my rights on my 160 acres, but also the pre-
existing rights of ingress and egress to my property across the
government land.
In that regard, the bill allows at least the Pueblo the right to
limit the nature and scope of access to my inholding with an absolute
veto vote on ``new uses.'' There are no due process or other legal and/
or administrative protections afforded concerning a person or entity
affected by this veto power. Coupled with this is the fact that ``new
use'' is undefined in the bill, and therefore open to broad
interpretation and debate. Therefore, a party holding the veto power
could argue that an activity constitutes a ``new use'', and then veto
that use without ever providing an explanation or a remedy to a person
aggrieved by the veto decision.
The Bill addresses these problems with every other parcel of
private property in the affected area by specifically guaranteeing
certain rights of way in the legislation that protect the rights of
private property owners. I would like to see my rights protected in a
similar fashion.
Once again, thank you for the opportunity to respond further.
______
Supplemental Questions From Republican Committee Members
Question. If language were included in this legislation that
guarantees vehicular access to the Piedra Lisa Tract will that satisfy
your concerns with S. 2013? Would you provide us draft legislation
language to provide you the protection you think is necessary?
Answer. If language were included in this legislation that
guarantees vehicular access to the Piedra Lisa Tract it would satisfy
my concerns with it, provided certain protections were included in the
guarantee. The primary concern is that once vehicular access is
guaranteed, we would desire that the legislation not include the
ability of any person or entity to limit the actual implementation and
placement of a paved road or other improvement to the access way to the
Piedra Lisa Tract.
The draft legislative language would read something like:
Under section 8(h).
(3) Piedra Lisa Tract.
(A) Road Rights-of-Way.
In recognition of ingress and egress rights, a vehicular
right-of-way for the Piedra Lisa Tract to the public roads
located at Juan Tabo Canyon Road (Forest Road No. 333) and
Forest Road 445 is granted to the Piedra Lisa Tract appurtenant
thereto. The term of this right-of-way shall be irrevocable and
in perpetuity. The width of said road right of way shall be 50
feet and may be broadened to meet any conditions imposed on
said right of way. Any reviews imposed by law or regulation
required by any entity for the construction of said road shall
be undertaken by and completed at the expense of the entity
requiring the review expeditiously. The road right-of-way may
be paved, improved or otherwise modified and maintained without
the Pueblo's written consent.
(B) Utility Rights-of-Way to Piedra Lisa Tract
The Secretary of the Interior shall grant irrevocable utility
rights-of-way in perpetuity across Pueblo lands to appropriate utility
or other service providers serving Piedra Lisa Tract, including, but
not limited to, rights-of-way for electricity, natural gas utility
service and cable television service. Such rights-of-way shall be
installed underground. To the extent that enlargement of this utility
rights-of-way needs enlargement for technologically-advanced
telecommunication, television, or utility services, the Pueblo shall
not unreasonably withhold agreement to a reasonable enlargement of the
easement described above.
Once again, thank you for the opportunity to respond further.
______
Answers of Stanley M. Hordes to Questions From
Republican Committee Members
Question 1. The crux of this dispute is over the interpretation of
the Spanish words, ``sierra madre'' in the Sandia Grant. How do you
conclude that those words refer to the ``mountain range'' rather than
the ``main ridge,'' and how do you distinguish this from other grants
that included the main ridge?
Answer. As stated in my 1996 Report, an examination of Spanish
language and etymological dictionaries from the eighteenth to the
twentieth centuries shows a strong consensus among authorities that
sierra, although deriving its roots from the Spanish word for the teeth
of a saw, referred more widely to a mountain range. The 1737
Diccionario de autoridades defined sierra as ``la cordillera de montes,
o penascos cortados, por lo que se semeja a los dientes de la sierra,''
or ``the range of mountains or large cut rocks, due to their sinularity
to the teeth of a saw''.\1\ Similarly, the modern Gran diccionario de
la lengua castellana offered the definition, ``cordillera de montes o
penascos cortados,'' or ``a range of mountains or large cut rocks''.\2\
Joan Corominas' Diccionario critico etymologico de la lengua castellana
referred to the term as, ``linea de montanas,'' or ``line of
mountains''.\3\ In another etymological dictionary, Corominas
explained:
---------------------------------------------------------------------------
\1\ Diccionario de Autoridades: Diccionario de la lengua castellana
en que se explica el verdadero sentido de las voces, su naturaleza y
calidad, con las phrases o modos de hablar, los proverbios o refranes,
y otras cosas convenientes al uso de la lengua . . . compuesto por la
Real Academia Espanola, (Madrid: Editorial Gredos, 1737), Tomo 5, p.
109.
\2\ Aniceto de Pages, Gran diccionario de la lengua castellana
(Barcelona: Fomento Comercial del Libro, [nd]), Vol. 5, p. 195.
\3\ J. Corominas, Diccionario critico etimologico de la lengua
castellana (Berne: Editorial Francke, 1954), p. 221.
En el sentido de `linea de montanas', S. X, se trata de una
comparacion con el aspecto dentado del perfil de las
cordilleras, denominacion arraigada en toda la Peninsula
Iberica, Sur de Francia y Norte de Italia hasta el rumano de
Macedonia.\4\
---------------------------------------------------------------------------
\4\ Joan Cororminas, Breve diccionario etimologico de la lengua
castellana (Madrid: Editorial Gredos), p. 372.
---------------------------------------------------------------------------
(In the sense of a `line of mountains' (10th century), it
relates to a comparison with the dentiled character of the
profile of the ranges, a customary denomination in the entire
Iberian Peninsula, the south of France, the north of Italy to
the Romanian border with Macedonia.)
One of the few etymological dictionaries to define the complete
term, sierra madre, was Guido Gomez de Silva's Elsevier's Concise
Spanish Etymological Dictionary:
`Sierra Madre (mountain system, Mexico)', literally `Mother
Range' (see sierra, madre); it is the major mountain system in
Mexico and comprises three ranges--the Sierra Madre Oriental
`Eastern Mother-Range', the Sierra Madre Occidental `Western
Mother-Range', and the Sierra Madre del Sur `Mother Range of
the South'.\5\
---------------------------------------------------------------------------
\5\ Guido Gomez de Silva, Elsevier's Concise Spanish Etymological
Dictionary (Amsterdam, London and Tokyo: Elsevier, 1985), p. 487.
All of the authorities consulted discussed sierra and sierra madre
in the context of a mountain range, or mountain system. None of the
Spanish dictionaries, contemporary or modern, defined the words as
``main ridge,'' or presented any definition in terms of the crest of a
mountain.
Neither did the primary archival documentation from the eighteenth
and early nineteenth centuries present the terms sierra or sierra madre
in any other than a general locational context. In his visitation of
the Franciscan missions of New Mexico in 1776, Fray Francisco Athanasio
Dominguez described the setting of the Pueblo of Sandia:
The mission is new, founded for the Indians of the province
of Moqui who were reduced by Father Menchero in the year 1746.
It stands in the middle of the plain on the same site as the
old mission which was destroyed in the general uprising of this
kingdom. To the east is a sierra called Sandia because there is
a pueblo and mission of this name here. Although it does have a
connection with the sierra of Santa Fe very high up (via some
little hills and mounds), we cannot properly take it to be a
continuation of the latter in view of the great distance and
few indications; rather we shall call it a Sierra Madre, since
it spreads down for a long way with the characteristics of a
mother range. [sino que la llamaremos Sierra Me., por quanto
para abajo se dilata mui mucho con senas de madre.] The Rio del
Norte is about half a league to the west among poplar groves
(translation by Eleanor B. Adams and Fray Angelic Chavez in The
Missions of New Mexico, 1776).\6\
---------------------------------------------------------------------------
\6\ Eleanor B. Adams and Fray Angelico Chavez, The Missions of New
Mexico, 1776 (Albuquerque: University of New Mexico Press, 1956), p.
138; the original account of Fray Dominguez from which the Spanish
excerpt derives is curated at the Biblioteca Nacional (Mexico), Legajo
10, no. 43.
Other documents of the period shed light on the contemporary
concept of the Sierra de Sandia as the eastern boundary in the area
around the Sandia Pueblo. In 1763 representatives of the Pueblo of
Santa Ana petitioned the Spanish authorities for permission to relocate
from their ancestral home on the Rio Jemez, to an area north of the
Town of Bernalillo, on the east bank of the Rio Grande. The property
that the pueblo wished to purchase extended on the west to the Rio
Grande, and on the east ``al pie de la Sierra de Zandia'' (``to the
foot of the Sierra de Sandia'').\7\ Such a specific designation of
``the foot'' might well provide an indication of the popular
understanding of the boundary placement of the sierra.
---------------------------------------------------------------------------
\7\ New Mexico Records Center and Archives (hereafter cited as
NMRCA), Spanish Archives of New Mexico (hereafter cited as SANM),
Series I, No. 1349, ``Proceedings over a purchase of lands by the
pueblo of Santa Ana at the `Paraje de Bernalillo,' '' July 5, 1763.
---------------------------------------------------------------------------
A more concrete example of how New Mexicans regarded the Sierra de
Sandia can be seen in a land transfer document at the close of the
Mexican Period. On March 30, 1846, Lorenzo Perea sold to Jose Leandro
Perea a tract of land in Bernalillo, whose western boundary extended to
``la tapia que esta contra el arenal'' (``the wall that is against the
sandy beach'') and whose eastern boundary was described as ``la sierra
de Sandia''. The same document included a precise measurement of the
east-west extent of the property, which ran only forty-eight varas, or
about 132 feet, from the Rio Grande to the Sierra de Sandia.\8\
---------------------------------------------------------------------------
\8\ NMRCA, Yrrisari Family Papers, Folder No. 5, Conveyance of
land, Lorenzo Perea to Jose Leandro Perea, Bernalillo, March 30, 1846,
``un pedaso de tierra de pan llevar que se compone de la casa para la
sierra de treinta varas poco mas o menos y de la sitada casa para el
Rio de dies y ocho varas contigua a dicha tierra la casa de su morada
del sitado Lorenso Perea la misma que bendio juntamente con la sitada
derra y todo to demas de plantillos que en ella se containen dicha
tierra la ubo el bendedor por ercnsia de su finado padre y por compra
que yso a su finada madre Maria Petra Chaves y son sus linderos por el
norte y sur con tierras del mesmo comprador por el oriente la sierra de
Sandia y por el poruiente la tapia que esta contra el arena] y se las
dio por el presio y cantidad de dosicntos y beinte pesos en dinero de
buena moneda . . .''; ``a piece of cultivated land that measures from
the house toward the mountain 30 varas, more or less, and from the said
house toward the River, 18 varas. Contiguous with the said lands is the
house occupied by Lorenzo Perea, the same that had been sold with the
said land, and all the other outbuildings [?] that were contained on
the said land, inherited by the seller from his deceased father, and
purchased from his deceased mother, Maria Petra Chaves. The boundaries
are on the north and south the lands of the said purchaser, on the east
the sierra de Sandia, and on the west the wall that is against the
arenal, and it was transferred for the price of 220 pesos cash. . . .''
---------------------------------------------------------------------------
Nowhere in the contemporary documentation could citation be found
to the sierra madre or Sierra de Sandia as the crest of the mountain,
or the ``main ridge''. Rather, evidence from Spanish dictionaries and
the archival record leads to the conclusion that these terms were used
as general points of geographic reference. The fact that the eastern
boundary of the Pueblo of Sandia was articulated in the Act of
Possession of 1748 as both one league to the east, as well as the
``Sierra Madre de Sandia'' should not be seen as inconsistent. Indeed,
the authorities deliberately laid out the boundaries, as much as
possible, according to those of a ``pueblo formal'', with the eastern
boundary extending one league from the center of the pueblo, reaching
just about to the foothills. As an additional general reference point,
Lieutenant General Bustamante pointed to the mountain range of the
``Sierra Madre de Sandia'' as lying to the east, suggesting that the
Spanish authorities interpreted the boundary of the sierra as the
foothills of the mountains, which represented the beginning of the
mountain range.
With regard to distinguishing the grant made to the Pueblo of
Sandia in 1748 from other grants that may have included a feature
designated as a ``main ridge,'' one has to understand that Spanish
royal law and custom maintained different provisions for Indians and
Spanish settlers. In New Mexico this difference manifested itself in
the manner by which grants of land were given by the governor of the
province to each group. As will be discussed in my answer to Question
2, below, Pueblos were granted four square leagues of land, or one
league (2.6 miles) in each direction from the center of the Pueblo.
Hence, any topographical reference contained in the boundary
descriptions of land grants to Pueblos were of secondary importance,
serving as descriptors to indicate features that were in the general
location of the boundaries formed by the four square leagues.\9\ Grants
to Spanish settlers, in contrast, were not standardized, and often
included geographical features, as well as boundaries of other land
grants. The attached plats, photocopied from the National Archives,
illustrate the differences between the grants issued to Spanish
settlers, which were irregularly shaped, and whose borders generally
corresponded to natural features, and those issued to Pueblos, which
comprised four square leagues, or a little over 17,000 acres, and whose
boundaries did not correspond to such topographical features.\10\
---------------------------------------------------------------------------
\9\ The exception was the reference to the Rio Grande as the
western boundary of the Pueblo of Sandia. Because lands on the west
side of the Rio Grande were already spoken for, and the assigned league
of the Pueblo was not able to be extended its full extent to the west,
the Pueblo was allotted additional lands to the north and south. See my
1996 Report, pp. 6-7.
\10\ National Archives and Records Administration (hereafter cited
as NARA), College Park, MD, Record Group (hereafter cited as RG) 49,
New Mexico Private Land Claims (hereafter cited as NMPLC), Plat Book 1,
no. 25; Plat Book 2, nos. 10, 21; Plat Book 3, no. 28; Plat Book 4, no.
10; Plat Book 6, no. 27; Plat Book 5, nos. 34, 35; Plat Book 6, nos. 3,
4, 11, 12, 14.
---------------------------------------------------------------------------
In the late nineteenth century U.S. authorities recognized that
certain of the land grants originally issued to Spanish settlers
featured boundaries that represented the summit of mountains and of
other promontories. In many, of not most, instances the language of the
granting documents contained specific references to the identification
of these boundaries as points higher in altitude than the surrounding
terrain, such as ``ridges,'' ``brows,'' and ``summits,'' as opposed to
more general features, such as ``mountains,'' or ``bills.'' The 1815
grant to the settlers of Arroyo Hondo, near Taos, for example,
identified the eastern boundary as ``la cuchilla del cerro,'' later
translated by the U.S. officials as ``the ridge of the mountain,'' and
further elaborated on as the ``top of the divide where the waters run
on the other side.'' \11\ In 1808 the governor of New Mexico issued a
grant to Spanish colonists at the Canon de Chama, on the upper reaches
of the Chama River. The western boundary was described as ``la sejita
blanca,'' or ``the little white brow.'' Testimony in the 1870s taken by
officials of the U.S. Office of Surveyor General described this brow as
the ``bordo [divide] of the rivers San Juan and Chama.\12\ The 1742
grant near Taos that ended up in the hands of Antoine Leroux included
as its eastern boundary, ``por la parte de la sierra, asta la cumbre,''
or, ``on the part of the mountains, to the summit.'' The Commissioner
of the U.S. General Land Office, in a letter to the Surveyor General of
New Mexico in 1880, in establishing the eastern boundary of the grant,
indicated that ``the tract was to extend East `towards the mountain
(sierra) to its summit,' thus giving a fixed and definite boundary on
the east.'' \13\ The Juan de Gabaldon grant, issued in 1752, used the
term, ``cuchilla,'' to refer to both its northern and southern
boundaries. Over a century later, the U.S. officials translated this
term as ``ridge,'' which constituted the watershed between two
valleys.\14\ The 1795 grant of Rancho del Rio Grande included as its
southern boundary, ``la cuchilla de la sierra del [de la] osa,'' and as
its northern boundary, ``la cuchilla de la sierra del Rio de D[o]n
Fernando.'' These features were later translated by U.S. officials as,
``the ridge of Bear Mountain,'' and ``the ridge of the mountain of the
river of Don Fernando,'' respectively. A witness in 1878 explained that
each ridge served as the watershed between two rivers. Official
instructions issued to the surveyor who was assigned to this grant
cited both the southern and northern boundaries as ``ridges.'' \15\
---------------------------------------------------------------------------
\11\ NMRCA, Records of the Office of Surveyor General (hereafter
cited as SG), Report 159, Reel 29, fr. 204, act of possession, April
10, 1815; fr. 321, instructions to surveyor, fr. 373, testimony, April
7, 1896.
\12\ NMRCA, SG, Report 71, Canon de Chama, Reel 20, fr. 579, act of
possession, March 1, 1808; fr. 626, testimony of Ricardo Martinez, May
13, 1878.
\13\ NMRCA, SG Report 47, Antoine Leroux, Reel 17, fr. 1013, grant
document, August 9, 1742; fr. 1050, letter of Commissioner of General
Land Office to Surveyor General of New Mexico, June 4, 1880.
\14\ NMRCA, SG Report 65, Juan de Gabaldon, Reel 19, fr. 1280-1281,
act of possession, June 13, 1752; fr. 1325-1326, notice of survey of
grant, March 12, 1896; fr. 1334-1370, survey notes, April 9, 1901.
\15\ NMRCA, SG, Report 58, Rancho del Rio Grande, Reel 19, fr. 57,
act of possession, April 9, 1795; fr. 69-70, translation of act of
possession; fr. 124, deposition of Juan B. Coca, September 9, 1878; fr.
136-137, instructions to surveyor, August 15, 1894.
---------------------------------------------------------------------------
In each of these cases, where the language of the original Spanish
land grant made specific reference to a ridge or summit of a mountain
or other promontory, the U.S. authorities recognized the boundaries as
including the main ridges of these features. The attached plats show
clearly how the government surveyors took these specific features from
the land grant documents, and applied them on the ground to encompass
the main ridges within the grants.\16\
---------------------------------------------------------------------------
\16\ NARA, College Park, MD, RG 49, NMPLC, Plat Book 1, no. 25;
Plat Book 2, nos. 10, 21; Plat Book 3, no. 28; Plat Book 4, no. 10;
Plat Book 6 no. 27.
---------------------------------------------------------------------------
Question 2. You claim the original Spanish grant to Sandia was for
a ``formal'' pueblo of four square leagues. Some argue that the four
square leagues of about 17,000 acres is a minimum and others, such as
yourself, have argued that it is a norm. The Sandia had about 24,000
acres patented to it in 1864. If you add another 10,000 acres of the
claim based on a reinterpretation of the grant, Sandia's holdings would
be about 34,000 acres--about double that of a ``regular'' pueblo.
Why do you believe the Spanish governor intended for Sandia to have
a ``regular'' pueblo, and how do you account for the fact that there
are other Pueblos with land areas in excess of 17,000 acres?
Answer. As stated in my 1996 Report, in Governor Codallos y Rabal's
Decree granting lands to the Pueblo of Sandia, he clearly expressed his
intention that the new entity be considered as a pueblo formal de
indios, or a formal Indian pueblo,\17\ with boundaries similar to those
allotted to other pueblos in New Mexico decades earlier. Accordingly,
he issued instructions to his Lieutenant General, Bernardo Antonio de
Bustamante Tagle, to give royal possession of lands to the new
arrivals:
---------------------------------------------------------------------------
\17\ Each of the pueblos in New Mexico were granted by the Spanish
crown a tract of land measuring four square leagues, or one league (2.6
miles) extending to each of the cardinal directions from the center of
the pueblo.
. . . I give commission as full and sufficient as is
necessary in such cases to Lieutenant General Don Bernardo de
Bustamante, so that with ten soldiers from this Royal Presidio,
and with the intervention of the said Very Reverend Father
Delegate Commisary, that he pass to the place of Sandia, and
there conduct an inspection, calculation and reconnaissance of
the said site, executing a distribution of the lands, waters,
pasture and watering places that correspond to a formal Indian
pueblo, according to the prescription of the Royal law . .
.\18\.
---------------------------------------------------------------------------
\18\ NMRCA, SANM I, No. 848, Decree of Governor Codallos y Rabal,
``. . . Doy comision quan amplia y bastante se necesita en tales casos
al theniente Gral. Don Bernardo de Bustamante, para que con diez
soldados de este Real Presidio, y con ynterbencion el dho. M.R.P.
Comisario Delegdo. pase al puesto de Sandia, y alli se haga vista el
ojos, tauteos, y reconosimiento del silo referido, ejecutando el
repartimiento de tierras, aguas, pastos, y abrebaderos que corresponden
a un Pueblo formal de Yndios segun preescriben las Reales disposiziones
. . .''.
On May 16, Bustamante carried out his assignment. Accompanied by
the settlers of the pueblo and their priest, Bustamante led them in the
formal Act of Possession, by which all assembled threw stones, tore up
grass, ``and in a loud voice shouted `Long Live the King, Our Lord,'
many times.'' He then proceeded to measure out the boundaries of the
pueblo.
Reflecting a clear recognition of the standard measurement of four
square leagues allocated to each pueblo in New Mexico, Bustamante
stated that ``the conceded leagues were measured for the formal
pueblo,\19\'' indicating that, 5,000 varas were to be surveyed in each
direction from the center of the settlement. He began to mark off the
5,000 varas that would have comprised the league measurement extending
to the west, but after only 1,440 varas his path was impeded by the Rio
Grande. In order to compensate the pueblo for the shortfall of 3,560
varas, Bustamante decided to add lands to both the north and south
boundary equally, so as not to cause prejudice to either one of the
neighboring Spanish settlements of Bernalillo and Alameda.\20\
---------------------------------------------------------------------------
\19\ NMRCA, SANM I, No. 848, Act of Possession, May 16, 1748, ``Se
midieron las Leguas consedidas a un pueblo formal.''
\20\ NMRCA, SANM I, No. 848, Act of Possession, May 16, 1748.
---------------------------------------------------------------------------
Thus, on the basis of Bustamante's description, the boundaries of
Sandia Pueblo extended 1,440 varas (75 miles) to the west; 6,780 varas
(3.53 mules) to the north; 6,780 varas (3.53 miles) to the south; and
5,000 varas (2.6 miles) to the east.\21\ The Lieutenant General ordered
in the Act of Possession that boundary markers be placed ``on the north
facing the point of the Canada commonly known as del Agua; and on the
south facing the mouth of the Canada de Juan Tabovo, and on the east
the Sierra Madre called Sandia, within whose limits are the advantages
of pasture, woods, waters and watering places for livestock, in
abundance to maintain cattle, sheep and horses . . .'' \22\
---------------------------------------------------------------------------
\21\ Calculations based on the length of a vara equaling 33 inches,
and a league measuring 2.6 miles.
\22\ NMRCA, SANM I, No. 848, Act of Possession, ``por el Norte
afrontada con la Punta de la Canada que conununmente Haman del Agua; y
por el Sur afrontada a la voca de la Canada de Juan Tabovo, y por el
Oriente la Zierra Madre llamada de Sandia en cellos tenninos ay las
comodidades de Pastos, Montes, Aguas, y Abrebaderos en abundancia para
mantener Ganados mayores, y menores,y Caballada . . .''
---------------------------------------------------------------------------
Subsequent documentation from the eighteenth and early nineteenth
centuries reinforces the notion that the lands owned by the Pueblo of
Sandia were confined to a four-square-league area, as measured by
Lieutenant General Bustamante in May of 1748.
After the assumption of sovereignty by the United States, thirteen
of nineteen Pueblo land grants (Sandia Pueblo excluded) were confirmed
by the U.S. government, recognizing an extent of four square leagues,
which was the amount of land granted to each Pueblo by the king of
Spain, through his governor in New Mexico. During the investigations
conducted by the U.S. Surveyor General, several of the Pueblos, when
questioned as to the extent of their Spanish grants, confirmed this
historical fact. The leaders of the Pueblo of Santa Clara, when asked
about the four-square-league area, responded that, ``The grants made to
all the Pueblos called for the same amount of land, and contain the
same amount that the other Pueblos contain''.\23\ The heads of the
Pueblo of San Ildefonso reported that their grant ``called for one
league from the church towards the four cardinal points. We claim the
same amount of land as the other pueblos have''.\24\ Those of the
Pueblo of Pojoaque responded in a similar manner, ``We claim one league
from the corner of the church toward the four cardinal points and are
entitled to the same amount of land granted to the other Pueblos.''
\25\
---------------------------------------------------------------------------
\23\ NMRCA, SG, Report K.
\24\ NMRCA, SG, Report M.
\25\ NMRCA, SG, Report N.
---------------------------------------------------------------------------
Of the six remaining grants, where the U.S. government patented a
considerably larger amount of land, five presented fraudulent
documents, purporting to have been issued in 1689, but in reality were
manufactured in the 1850s, containing descriptions far in excess of
their original grant from the king of Spain (Acoma, San Felipe,
Cochiti, Santo Domingo, Laguna). One Pueblo, Isleta, when questioned by
the U.S. Surveyor General, greatly exaggerated the extent of its land
grant, claiming boundaries far beyond its four-square-league grant to
the east and west.
Extensive research conducted in Spanish colonial records shows that
the standard measure of land grants to Indian pueblos in New Mexico was
four-square leagues. Some received additional grants, while others were
able to purchase lands from Spanish settlers. Each of these grants and
transactions were documented by Spanish authorities. Additionally, in
the late nineteenth and mid-twentieth centuries, the U.S. government
set aside lands for certain of the Pueblos as reservations. Absent
these special circumstances, however, each Pueblo comprised four-square
leagues, and no more (sometimes less).\26\
---------------------------------------------------------------------------
\26\ Historian Myra Ellen Jenkins, upon whom Interior Solicitor
Lashy relied heavily for his 2001 Opinion, repeatedly asserted that the
four-square-league area represented only a minimum, and that the
Spanish colonial officials recognized a much greater extent of Pueblo
holdings. This assertion was not supported by any primary
documentation, and when asked in deposition to provide archival
references to substantiate this theory, Jenkins conceded that site
could not do so (See State of New Mexico, ex rel., S E. Reynolds, State
Engineer. et al. v. Eduardo Abeyta, et al., CV No. 7896 C & No. 7939 C
(cons.) (Rio Pueblo de Taos & Rio Hondo), Deposition of Myra Ellen
Jenkins, April 4 and 19, 1990, pp. 72-75).
---------------------------------------------------------------------------
Question 3. How do you respond to the allegations that you're a
minority among scholars in your historical conclusions and that other
reputable scholars disagree with you?
Answer. To the contrary, I submit that other reputable scholars who
have studied this issue have developed conclusions consistent with my
own. I would refer you to the reports of William Morgan, `` `And on the
East . . .' The Sandia Eastern Boundary Issue and the Land Policies of
Three Nations'' (1988), and of Dr. Frank Wozniak, ``An Analysis of the
Location of the Eastern Boundary of the Sandia Pueblo Grant'' (1988),
as well as the research of Dr. Michael Meyer, of the University of
Arizona, all of whom came independently to the same conclusion, i.e,
that there is no documentation that would justify the historic claim
placing the eastern boundary at the crest of the Sandia Mountains.
Moreover, one of the Pueblo's own experts, Dr. Ward Alan Minge,
produced a report, ``The Pueblo of Sandia Grant Boundary: Issues and
Encroachments'' (ca. 1983), which, while replete with internal
contradictions, corroborated two of my key points: (1) the term sierra
madre should be translated as ``mountain range,'' rather than ``main
ridge,'' and (2) the King of Spain recognized that the Pueblo of
Sandia, like all the other Pueblos, owned an area of land comprising
four square leagues.
With regard to the translation of sierra madre, Minge made no
reference a ``main ridge.'' Rather, he believed that the term referred
to the mountain range in its totality, stating, ``The Sierra Madre de
Sandia was the name given to the entire mountain east of Sandia Pueblo,
and `we shall call it a Sierra Madre, since it spreads down for a long
way. with the characteristics of a mother range,' '' \27\ and, ``As to
the eastern boundary, I have used the original `Sierra Madre called
Sandia' which could only translate into the mountain itself.'' \28\ If
Minge intended for the term to be translated as ``main ridge,'' he
certainly would have so indicated here. Minge included as part of his
report an appendix called, ``Definitions and Illustrations in
Dictionaries and Contemporary Documents Showing `Sierra Madre' to Mean
Mountain Range or Main or Mother Range,'' in which he cited the
definitions of the term developed by fifteen English and Spanish
authorities. None of them refer to sierra madre as ``main ridge,'' or
any Spanish equivalent.\29\
---------------------------------------------------------------------------
\27\ Ward Alan Minge, ``The Pueblo of Sandia Grant Boundary: Issues
and Encroachments'' (1983?), p. 19, referring to the 1776 observations
of Fray Francisco Athanasio Doininguez, discussed above.
\28\ Minge, ``The Pueblo of Sandia Grant Boundary,'' pp. 15-16.
\29\ Minge, ``The Pueblo of Sandia Grant Boundary, Appendix F, pp.
175-177.
---------------------------------------------------------------------------
Minge also expressed the belief that ``The league, a grant of four
leagues square, gradually became the accepted size for Indian Pueblos
of New Mexico,'' and that ``Spanish officials and settlers appeared to
recognize the Pueblo `leagues' and had surveys made after controversies
arose. . . .'' \30\ With specific reference to the Pueblo of Sandia,
Minge indicated that the four-square-league area represented all the
land to which they were entitled. Commenting on the 1859 survey
conducted by the Surveyor General he stated, ``In place of a block of
land, more or less based on the Spanish leagues, Sandia's survey . . .
ended with wiggles, jags and other distortions.'' [emphasis added] \31\
---------------------------------------------------------------------------
\30\ Minge, ``The Pueblo of Sandia Grant Boundary,'' pp. 28-29.
\31\ Minge, ``The Pueblo of Sandia Grant Boundary,'' p. 37,
Inexplicably, Minge proceeded to conclude that the Sandia mountain
comprised part of the grant to the Pueblo, despite his reference to
this four-square-league block of land.
---------------------------------------------------------------------------
With the exception of one or two affidavits on particular issues, I
am not aware of the existence of any documented expert historical
report countering the conclusions that I reached in my 1996 Report.
Interior Solicitor Leshy, in his 2001 Opinion, relied on the work of
only one scholarly report, prepared in 1983 by Dr. Myra Ellen Jenkins,
most of whose conclusions could not be substantiated by primary
documentation. The only other relevant citations referenced by the
Solicitor comprised an unfootnoted op-ed piece in an Albuquerque
newspaper by Malcolm Ebright, and one statement taken out of context by
William Morgan.
Question 4. A major point made by proponents of the Sandia claim is
that the Spanish grant area to the south, known as the Elena Gallegos
Grant, which does go to the crest of the Sandia Mountains, is precedent
for the same conclusion being made for the Sandia Grant. Are the Sandia
and Elena Gallegos Grants comparable?
Answer. As discussed in my 1996 Report, the treatment of the
eastern boundary of the Elena Gallegos Grant has been cited by some as
relevant to the placement of the eastern boundary of the Pueblo of
Sandia. However, such a comparison is misplaced, despite the
geographical proximity of the two grants. The Sandia Grant and the
Elena Gallegos Grant differ in two fundamental respects. First, the
language of the grants are significantly different with respect to the
specificity of the boundary calls. Second, the nature of the pueblo
grant was distinct from grants to non-Indians. Sandia represented a
formal pueblo grant, which adhered to the limitation of a four-square-
league area, as opposed to Elena Gallegos, which had no such express
limitation.
The importance of the differences in language between the two
grants becomes apparent in an examination of a critical court case
involving the interpretation of the boundaries of the Elena Gallegos
Grant in the late nineteenth century. In the 1890s the question of the
translation of the Sierra arose in relation to the eastern boundary of
the Elena Gallegos Grant, located just to the south of the Pueblo of
Sandia. In a case before the U.S. Court of Private Land Claims, the
descendants of the original grantees claimed as the eastern limit of
their holdings the summit of the Sandia Mountains, based on the wording
of their 1716 grant document, which specified the boundary as the
Sierra de Sandia. After hearing the evidence presented by both the
descendants and the U.S. Attorney, who asserted that the Sierra
referred to the foothills, and not the crest, Associate Justice Wilbur
F. Stone issued his opinion in favor of the former, ruling that the
eastern boundary of the grant should extend to the crest.\32\
---------------------------------------------------------------------------
\32\ NMRCA, Court of Private Land Claims (hereafter cited as CPLC),
No. 51, Elena Gallegos Grant, Reel 38, fr. 832-833, Opinion of
Associate Justice Wilbur Stone, Newspaper article from The Daily New
Mexican, December 6, 1893, signed by Justice Stone, and filed by Clerk
of Court (hereafter cited as Opinion).
---------------------------------------------------------------------------
In view of the foregoing discussion with regard to the translation
of sierra madre, Justice Stone's opinion is a curious one, and warrants
detailed examination as it relates to the case of the Pueblo of Sandia.
In certain respects, the decision with regard to the extent of land
granted to the residents of the Elena Gallegos Grant related uniquely
to the tract in question, and did not apply to the case of Sandia.
With regard to this question, Justice Stone's opinion raised some
interesting concerns. One such issue surrounds the differences in the
designation of the eastern boundary for each grant. The text of Justice
Stone's opinion pointed out the contrast between the terms, sierra
madre and sierra:
As applied to mountains its [sierra's] figurative, general
meaning is a range; as `La Sierra Madre,' `La Sierra Nevada,'
the mother range and the Snowy range of the Rocky mountains. In
a special application of the term to a single mountain, or
mountains not properly constituting a range, the word sierra
especially refers to and denotes the serrated crest, comb,
ridge or summit. The term may be applied, in common parlance,
to entire mountains, smoothly rounded, as to those with rugged
ridges, but when employed in relation to a boundary point or
line, there can be no room for doubt that the `cumbres,' apex
or summit is intended as the true and precise definition of the
land-mark [emphasis added].\33\
---------------------------------------------------------------------------
\33\ NMRCA, CPLC, No. 51, Elena Gallegos Grant, Opinion.
Justice Stone thus drew the distinction between sierra madre, or
mother range, referring in general terms to the mountains, on the one
hand, and sierra, or serrated crest, on the other. Whether one concurs
with this difference or not, it is clear that Justice Stone based his
decision to place the eastern boundary of the Elena Gallegos Grant at
the crest, on the basis of the existence of the term, sierra, and not
sierra madre, in the granting document. In the case of the 1748 grant
to the Pueblo of Sandia, the wording of the reference point to the east
was the Sierra Madre de Sandia, and thus would not have been defined by
the judge as the crest of the mountain.
Another area where Justice Stone's opinion in the Elena Gallegos
Grant did not apply to the case of the Pueblo of Sandia surrounds the
element of uncertainly of boundary markers:
An authoritative rule of construction is that, where a deed
is uncertain or ambiguous in description, the construction
given to it by the parties themselves, is to be deemed the true
one, unless the contrary is clearly established . . .\34\.
---------------------------------------------------------------------------
\34\ NMRCA, CPLC, No. 51, Elena Gallegos Grant, Opinion.
If the eastern boundary of the Elena Gallegos Grant was uncertain,
then there was no doubt concerning the placement of that of the Pueblo
of Sandia. As discussed at length in my response to Question 2, the May
16, 1748 Act of Possession conducted by Lieutenant General Bustamante
specified the measurement of one league toward the east, and designated
the northeast and southeast corners as ``facing the point of the Canada
commonly known as del Agua,'' and ``facing the mouth of the Canada de
Juan Tabovo,'' respectively. In the context of these specific
descriptions, Justice Stone's criteria of uncertainty and ambiguity
would not have been met.
Moreover, the very nature of the Sandia grant as a ``formal
pueblo'' renders any comparison with the Elena Gallegos boundary
decision irrelevant. By their very nature, grants to the pueblos were
limited to an area of four square leagues. Although the boundaries of
the Pueblo of Sandia were slightly altered to the west, north and
south, no changes were made to the eastern boundary. Thus, where
Justice Stone might have expressed uncertainty over the limits of a
non-Indian grant, there could have been no question as to the boundary
of a ``formal pueblo.''
Thus, despite the decision of the Court of Private Land Claims to
interpret the eastern boundary of the Elena Gallegos Land Grant as the
crest of the Sandia Mountains, no such extension can be made to the
eastern limit of the Pueblo of Sandia. The two grants are not
comparable.
Appendix II
Additional Material Submitted for Record
----------
Sandoval County Administrative Offices,
Board of County Commissioners,
Bernalillo, NM, April 22, 2002.
Hon. Jeff Bingaman,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Bingaman: At its regular meeting on Thursday, April
18, 2002, the Sandoval County Commission voted unanimously to support
the legislation you are sponsoring to settle the Sandia Mountain land
claim. The Commission did, in fact, support the original Settlement
agreement and believed that it fairly addressed all pertinent issues.
It is our understanding that the Pueblo of Sandia supports the
legislation if it is amended to allow for the exchange of claim area
lands, already purchased by the Pueblo, for the claim area Forest
Service lands within Sandoval County. Said land would be assigned trust
status. Despite a loss in Payment-in-Lieu of Taxes (PILT) revenue,
Sandoval County supports placing this property into trust, as long as
public access, existing uses, and easements are ensured in perpetuity.
While the County supports the Settlement, regardless of PILT losses, we
would like to take this opportunity to reiterate our request that the
PILT legislation be amended to require that all lands taken into trust
through purchase, thereby removing that land from the tax rolls,
continue to be included in the formula for PILT calculations.
Unfortunately, there has been a great deal of misinformation
perpetuated about this land claim settlement; however, when the facts
are analyzed and presented accurately, support for the settlement is
overwhelming. There is seldom an opportunity to settle a dispute of
this magnitude so that no one loses--but that is the case with the
proposed settlement. The Sandias have demonstrated that they have two
basic goals: unrestricted access to land, which is rightfully theirs,
and maintaining the wilderness state of the property in perpetuity. As
long as these two goals are assured, the public's current use of the
property will not be restricted, homeowners in the affected area will
have their titles cleared, certain roadways will have their easements
formally dedicated and, most important to the big picture, the east
face of the mountain will never be traded or taken out of wilderness
status. The settling of this issue is long overdue and has already cost
far too much in litigation costs on both sides of the argument. Please
do not spend more time and money when an equitable solution is
available.
Sincerely,
Elizabeth C. Johnson,
Chair.
______
State of New Mexico,
House of Reoresentatives,
Sante Fe, NM, April 22, 2002.
Hon. Jeff Bingaman,
U.S. Senator, Hart Senate Office Building, Washington, DC.
Dear Senator Bingaman: I write this letter to express my support
for the Sandia Mountain Settlement Agreement. I strongly believe the
natural beauty of Sandia Mountain most be preserved for today's
enjoyment, and for future generations. Access to the unspoiled mountain
offers a great deal to the people of New Mexico, not just for its
recreation use and aesthetic beauty, but also as an historical and
cultural link to this area's past. Especially for the people of Sandia
Pueblo, the Sandia Mountain remains a sacred place for their religious
and cultural practices.
The Agreement resolves the Pueblo's claim, protects their religious
and traditional use rights, ensures the Mountain's future protection,
and guarantees continued public access. It also resolves a host of
issues that further litigation could never resolve. I understand that
the primary element of concern to the State of New Mexico relates to
the regulation of hunting within the Claim Area. However, I have been
told that the Pueblo and the State Department of Game & Fish are
working cooperatively to reach a mutually acceptable compromise on that
issue. Further, I will continue to encourage them to resolve this issue
and reach an agreement that would benefit the best interests of all
concerned.
I believe the Settlement Agreement provides the most balanced and
reasonable solution for everyone. I humbly request that you support
legislative ratification of the Settlement Agreement. Thank you for
your time and consideration.
Sincerely,
Ben Lujan,
Speaker of the House.
Albuquerque, NM, May 8, 2002.
To: United States Senate Committee on Energy and Natural Resources
From: Jim Clark. Evergreen Hills Landowner
In Reference To: SB 2018
I am the current owner of 18 lots in the Evergreen Hills
subdivision and I am deeply distressed that the subject bill as it is
currently written does not address my property rights and rights
established as a result of the Evergreen Hills subdivision being a
homestead most probably prior to the establishment of the USFS in the
area surrounding the private property. The subdivision is currently an
inholding and should at a minimum have rights and protection spelled
out in the bill identical to those provided to Tierra Monte and Sandia
Heights North. Tierra Monte is an inholding virtually identical to
Evergreen, with the exception of being in a different county and less
than a mile or so from Evergreen Hills. Additionally, as a subdivision,
filed in accordance with the laws of the State of New Mexico, our
rights to power and all utilities and other subdivision rights have not
been adequately addressed. This is despite repeated requests to be
involved in the process and having filed and been granted status as an
intervenor during the lawsuit. I am greatly dismayed that I have not
been allowed to testify nor have I been notified or contacted of the
process or dates that testimony was to be given. I learned of todays
deadline through discussions with another interested party at
approximately 4:30 PM MST. Why have Evergreen Hills and I been singled
out and ignored?
I have not been given fair and equal access to the historic
mediation and settlement process in spite of my being an intervenor in
the original lawsuit and repeated letters and requests to the New
Mexico delegation and the USES.
Accordingly, I request the bill address the following specific
elements:
I request that power and other utilities be provided to the
Evergreen Hills subdivision boundary and that our subdivision
not be singled out or solely excluded from receiving power and
utilities. This is consistent with access through a special use
permit and I have previously requested an extension to the
expired permit that was granted from the USFS.
I personally own the utility lot in Evergreen Hills and have
requested through a letter that a permit for power be
permanently established to allow future use of the lot in
providing power to adjacent subdivisions. The bill as it is
currently written does not have a provision that will allow
this.
Access to the subdivision should be through a dedicated
easement to the subdivision boundary and the gate currently at
the Piedra Lisa parking area should be moved to the subdivision
boundary. The private road permit as written by the USFS places
excessive liability onto private landowners in Evergreen Hills.
Evergreen landowners are given no alternatives to accepting
the proposed one-sided legislation. Such alternatives as a
partial compensation, trade, buyout; etc., should be offered
and considered.
The language of the legislation is internally contradictory
and damaging to the Evergreen Hills in that the Government is
granting Pueblo rights to reject uses of USFS land, which
surround the Evergreen subdivision. The veto rights are adverse
to the subdivision and my personal past and future interests.
The language is tantamount to improper condemnation or a taking
of property without due process.
The bill needs to protect the Landowner rights of Evergreen
Hills equally and equitably to those of Tierra Monte and Sandia
Heights North as the easements that will be established for
both of these subdivisions are the same easements and rights of
way that will apply to Evergreen Hills.
USFS transfer of property from the Evergreen Hills
subdivision into Pueblo ownership is prejudicial and adverse to
subdivision interests and covenants. I also have a deed that
contradicts USFS ownership of one of two lots under section
8.f(2) in the subdivision.
I respectfully request that the above issues be addressed and that
S. 2018 be amended to address the Evergreen Hills subdivision
adequately.
Very respectfully,
James L. Clark.