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The original documents are located in Box 5, folder "Pueblos" of the Bradley H. Patterson
Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 5 of the Bradley H. Patterson Files at the Gerald R. Ford Presidential Library
INdiAN Pueblo
Cultural
CENTER INC.
Post Office Box 6807 / Station B/ Albuquerque, New Mexico 87107 / Telephone (505) 243-1374
Campaign Office 247-4241
ANNOUNCEMENT
Effective July 1, 1976 the Indian Pueblo Cultural Center is
under the direction of Mr. William F. Weahkee who has taken
over as the Center Director.
The opening of the Center is scheduled for August 28. We hope
you will visit with us.
ABVENT GERALD R. FORD
ANERICAN REVOLUTION WENTENNING
An Associated Program of the All Indian Pueblo Council, Inc.
1776-1976
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date: September 14
Time:
615pm
FOR ACTION:
Dick Parsons
CC (for information): Jack Marsh
Brad Patterson
Jim Connor
Max Friedersdorf
'{
Ed Schmults
George Humphreys
Ken Lazarus
FROM THE STAFF SECRETARY
DUE: Date:
Time:
September 15
500pm
SUBJECT:
S. 217- - Repeal of certain condemnation authority
concerning Indian lands
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X
For Your Comments
Draft Remarks
REMARKS:
please return to judy johnston, ground floor west wing
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delav in submitting the required material. please
James M. Cannon
telephone the Steff Secretary immediately.
For the President
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. 20503
SEP 1 1 197
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill S. 217 Repeal of certain con-
demnation authority concerning Indian lands
Sponsors - Sen. Domenici (R) New Mexico and
Sen. Montoya (D) New Mexico
Last Day for Action
September 20, 1976 - Monday
Purpose
Repeals existing law under which tribal lands of the
Pueblo Indians of New Mexico are subject to special
condemnation actions in rights-of-way cases.
Agency Recommendations
Office of Management and Budget
Approval
Department of the Interior
Approval
Department of Justice
Defers to Interior
Discussion
In 1924, the Secretary of the Interior approved an
application of the Santa Fe Northwest Railway Company
for a railroad right-of-way through tribal lands of
the Zia, Santa Ana, and Jemez Pueblos. However,
after completion of the railroad, it was determined
that the legal basis for the Secretary's action was
not valid. The railroad then attempted to validate
the right-of-way by negotiating with the three
affected Pueblos, but it could not reach an agree-
ment with the Pueblo of Jemez.
In an attempt to resolve the issue, a bill was signed
2
into law on May 10, 1926, providing for the condem-
nation of lands of the Pueblo Indians of New
Mexico for any purpose for which other lands of the
State may be condemned. However, the 1926 Act placed
jurisdiction for such condemnation proceedings in
the Federal District Court, and the court found
that the 1926 Act contained insufficient authority
to decide the case.
Finally, in 1928, a law was enacted that allowed
the Santa Fe Northwest Railway Company to perfect
its title to the railroad right-of-way in question.
The Act of April 21, 1928, made applicable to the
Pueblo Indians of New Mexico and their lands those
statutes of the United States governing the
acquisition of rights-of-way through Indian lands.
S. 217 would expressly repeal the Act of May 10,
1926, and it would terminate, on the date of enact-
ment, all pending proceedings and actions that were
initiated under the 1926 Act. However, any right
of appeal from such proceeding or action entered before
the date of enactment of S. 217 would be preserved.
Mcreover, S. 217 would authorize the Secretary
of the Interior to grant one renewal for a period
not to exceed ten years of any right-of-way
acquired, prior to January 1, 1975, through liti-
gation allowed under the 1926 Act. Such action
would be authorized only when the right-of-way
holder and the Pueblo tribe cannot reach agreement
on renewal, and the Secretary could grant the
renewal without the consent of the affected Pueblo
tribes. In such cases, the Secretary would require
that the Pueblo involved receive fair market
value compensation for such renewal.
Finally, the enrolled bill would also amend the Act
of April 21, 1928, to make applicable to the Pueblo
Indians of New Mexico certain general statutes
which provide for rights-of-way across Indian
GERALD FORD
lands.
In its enrolled bill letter, Interior explains the
3
need for this legislation as follows:
"The 1926 Act should be repealed for a.
number of reasons. The Pueblos are
subject to a type of action from which
other tribes in the United States are
immune. The Act of 1926 was passed
with the intent of solving a unique problem
as a precise time. The Act should have
been repealed after serving its specific
function. Should the need arise for the
State to condemn Pueblo lands, it can
request such authority from the Congress.
The Pueblo Indians feel that use of the
Act, however infrequent, imposes an
inequitable situation upon them. They
have expressed a desire for repeal of
the Act in a resolution adopted by the
All-Indian Pueblo Council on
October 20, 1973.
"With regard to the one-time 1C-year
renewal provision under S. 217, only
two rights-of-way would be involved.
Both are for power lines on the Santa-
Clara Pueblo and expire, respectively,
in the years 2011 and 2023. The
remaining 10 rights-of-way under the
1926 Act were granted in perpetuity,
and would not be affected by S. 217.
In all other respects, S. 217 will put
the Pueblos on the same basis as other
tribes in the United States with
regard to the granting, renewal, or widen-
ing of rights-of-way through their
lands. Accordingly, we recommend that
the President approve the enrolled
bill."
harmi R Sweeney
Acting Assistant Director
for Legislative Reference
Enclosure
United States Department of the Interior
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20240
SEP 1 01976
Dear Mr. Lynn:
This responds to your request for the views of this Department
on enrolled bill S. 217, "To repeal the Act of May 10, 1926 (44
Stat. 498), relating to the condennation of certain lands of the
Pueblo Indians in the State of New Mexico."
We recomend that the President approve the enrolled bill.
Section 1 of the enrolled hill repeals the Act of May 10, 1926
(44 Stat. 498) which authorized, in Federal district court, the
condennation of Pueblo Indian lands in New Mexico for any public
purpose for which lands may be conderned under New Mexico State law.
Section 2 of S. 217 provides that any action pending under the 1926
Act upon enactment of the bill shall be terminated, but the right
of timely appeal from a final decree or order in any action under
the 1926 Act is preserved.
Section 3 of the enrolled bill amends the Act of April 21, 1928
(45 Stat. 442; 25 U.S.C. 322) , which contains certain general
statutes relating to the administration cf Indian trust lands, by
extending the statutes contained therein to the Pueblo Indians
and their lands. The result of this amendment would be to place
the New Mexico Pueblo Indians in the same position relative to
GERALD
grants of rights-of-way across their lands as other federally-
recognized Indian tribes.
S. 217 also adds a new section 2 to the 1928 Fct, which provides
that the Secretary of the Interier may without the consent of the
affected Pueblo Tribe, grant a one-time 10 year renewal of any
right-of-way across Pueblo lands acquired either throuch litigation
pursuant to the Act of May 10, 1926, cr by compromise and settlement
in such litigation prior to January 1, 1975. However, the Secretary
may only grant such a renewal if the owner of the right-of-way and
the tribe cannot reach agreement within 90 days after such renewal
value of the renewal as compensation for the tribe.
PEVOLUTION
The Act of May 10, 1926 (44 Stat. 498) , exposes New Mexico Pueblo
Indian lands to a wider lisbility for concernation than that of
other Indian tribes in the United States. It was eracted specifically
to resolve the controversy Letween the Santa Fe Northwestern
Railway Corpany and the Pueblo of Jenez over a right-of-way for
railicad purposes through tribal lands of the Zia, Santa Ina, and
Jemez Puebles. The 1926 Act took away the New Mexico Pusblos'
right of consent in the consideration of applications for rights-
of-way across their land. In contrast, those tribes that organized
governments pursuant to the Act of June 18, 1934 (48 Stat. 987),
were provided the right of consent in considering such applications,
and the balance of federally recognized tribes have been granted
such right through regulation (25 C.F.R. 161).
The Act of April 21, 1928 (45 Stat. 442; 25 U.S.C. 322), made
applicable to the Pueblo Indians of New Mexico and their lands those
statutes of the United States governing acquisition of rights-of-way
through Indian lands. In addition, the Act of February 5, 1948
(62 Stat. 17; 25 U.S.C. 323-328) providing for the granting of
rights-of-way through Indian lands specifically included Pueblo lands
in its provisions.
It has been argued that either the 1928 Act, or the 1948 Act,
repealed the 1926 Act by implication. On this issue the District
Court for the District of New Mexico (State of New Mexico V.
United States, 148 F. Supp. 508, 1957), has held that the 1926
Act was not repealed because unless a later general statute repeals
an earlier special statute expressly or an absolute incompatibility
between the two exists, the presurption is that the special statute
remains in force as an exception to the general.
In the nearly 50 years that the 1926 Act has been in effect, it
has been used twelve times to obtain rights-of-way on Pueblo lands
in the U.S. District Court. The most frequent reason has been
that of highway purposes. There is presently pending in the U.S.
Circuit Court of Appeals for the 10th Circuit an appeal from a
final decision of the U.S. District Court for the District of New
Mexico granting a right-of-way for purposes of an electrical trans-
mission system through lands of the Pueblo of Laguna. This suit,
Plains Electric Generation and Transmission Cooperative, Inc., V.
Pueblo cf Laguna, was comenced in the District Court on January 3,
1975. The Puebles of Sen Ildefonso and Santa Clara are fearful
that similar action will be taken against them in cases involving
their lands for other reasons.
The 1926 Act should be repealed for a number of reasons. The
Puchles are subject to a type of action from which other tribes
in the United States are inname. The Act of 1926 was passed with
C.
the intent of solving a unique problem at a precise time. The
Act should have been repealed after serving its specific function.
Should the need arise for the State to condern Puchlo lands, it can
request such authority from the Congress. The Pushlo Indians feel
that use of the Act, however infrequent, imposes an inequitable
situation upon them. They have expressed a desire for repeal
of the Act in a resolution adopted by the All-Indian Pueblo Council
on October 20, 1973.
With regard to the one-time 10 year renewal provision under S. 217,
only two rights-of-way would be involved. Both are for power lines
on the Santa Clara Puchlo and expire, respectively, in the years
2011 and 2023. The remaining 10 rights-cf-way under the 1926 Act
were granted in perpetuity, and would not be affected by S. 217.
In all other respects, S. 217 will put the Puebles cr. the same
basis as other tribes in the United States with regard to the
granting, renewal, or widening of rights-of-way through their lands.
Accordingly, we recomend that the President approve the enrolled
bill.
Sincerely yours,
Assistant Secretary of the Interior
Honorable James T. Lynn
Director, Office of
Management and Budget
Washington, D.C.
3
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
September 10, 1976
Honorable James T. Lynn
Director.
Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Lynn:
In compliance with your request, I have examined
a facsimile of the enrolled bill S. 217, "To repeal the Act
of May 10, 1926 (44 Stat. 498), relating to the condemna-
tion of certain lands of the Pueblo Indians in the State of
New Mexico".
S. 217 would repeal the Act of May 10, 1926, 44
Stat. 498, providing for the condemnation of the lands of
Pueblo Indians in New Mexico for public purposes and making
the laws of the State of New Mexico applicable in such pro-
ceedings.
S. 217 would also amend the Act of April 21, 1928,
45 Stat. 442, by striking all after the enacting clause and
inserting, in lieu, the following:
"That the provisions of the following statutes:
"Sections 3 and 4 of the Act of
March 3, 1901 (31 Stat. 1083 and 1084);
"The Act of March 2, 1899 (30
Stat. 990), as amended;
"Sections 1 and 2 of the Act of
March 11, 1904 (33 Stat. 65), as amended;
and
"The Act of February 5, 1948 (62
Stat. 17),
are extended over and made applicable to the Pueblo Indians
of New Mexico and their lands, whether owned by the Pueblo
Indians or held in trust or set aside for use and occupancy
by Executive order or otherwise, under such rules, regula-
tions, and conditions as the Secretary of the Interior may
prescribe. " The essential feature of this portion of S. 217
- 2 -
is to provide for condemnation of the lands of Pueblo Indians
in New Mexico as other Indian lands are condemned (see 25
U.S.C. 357), and to authorize the Secretary of the Interior
to grant easements for rights-of-way over the lands of Pueblo
Indians of New Mexico as he is authorized to grant rights-of-
way over other Indian lands (see 25 U.S.C. 319).
S. 217 further authorizes the Secretary of the
Interior, notwithstanding the provisions of 44 Stat. 498 and
without the consent of the affected Pueblo Tribes, to grant
one renewal for a period not to exceed 10 years of any right-
of-way acquired through litigation initiated under the Act
of May 10, 1926, or by compromise and settlement in such
litigation prior to January 1, 1975, provided that he shall
require as compensation for the Pueblos involved, the fair
market value as determined by him, and provided that such
right-of-way renewal be granted only in the event the owner
of such existing right-of-way and the Pueblo Tribe involved
cannot reach an agreement on renewal within 90 days after
such renewal is requested.
The Department of Justice defers to the agencies
more directly concerned with the subject matter of the bill
as to whether it should receive Executive approval.
Sincerely,
Unicharl We Whlmaum
Michael M. Uhlmann
Assistant Attorney General
10
pro 5217
The White House
1
Workington
2
3
JR1
4
WHA005 (1030) (2-016573E252)PD 09/08/76 1030
1976 SEP 8 AM II 33
5 ICS IPMBNGZ CSP
6
7
5052470486 TDBN ALBUQUERQUE NM 49 #9-08 1030A EST
8 PMS PRESIDENT GERALD FORD
9
10
WHITE HOUSE DC
11 THE HOUSE AND SENATE HAVE UNANIMOUSLY ADOPTED THE CONFERENCE REPORT
12
13 ON S217 WHICH REPEALS THE 1926 PUEBLO LAND CONDENNATION ACT. WE URGE
14 AND STRONGLY REQUEST YOU TAKE FAVORABLE ACTION AT THE EARLIEST
15
16
POSSIBLE DATE. THE 19 PUEBLO GOVERNORS AND THE 35,000 INDIANS THEY
17 REPRESENT WILL BE MOST APPRECIATIVE.
18
19
DELFIN LOVATO
FORM 0.8.0,5 PRINTED BY-THE STANDARD REGISTER COMPANY U. S.A.
20 CHAIRMAN ALL INDIAN PUEBLO COUNCIL
21
22 NNNN
23
24
25
26
Union Calendar No. 394
94TH CONGRESS
2D SESSION
S. 217
[Report No. 94-800]
IN THE HOUSE OF REPRESENTATIVES
MAY 22, 1975
Referred to the Committee on Interior and Insular Affairs
JANUARY 29, 1976
Reported with an amendment, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
[Insert the part printed in italic]
AN ACT
To repeal the Act of May 10, 1926 (44 Stat. 498), relating to
the condemnation of certain lands of the Pueblo Indians in
the State of New Mexico.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That the Act entitled "An Act to provide for the con-
4 demnation of the lands of the Pueblo Indians in New Mexico
5 for public purposes, and making the laws of the State of
6 New Mexico applicable in such proceedings", approved
7 May 10, 1926 (44 Stat. 498), is hereby repealed.
8
SEC. 2. Immediately upon enactment of this Act, all
I
2
3
1 proceedings and actions pursuant to the Act of May 10,
1 regulations, and conditions as the Secretary of the Interior
2 1926 (44 Stat. 498), pending on or commenced on the
2 may prescribe: Provided, That, notwithstanding such pro-
3 date of enactment of this Act shall be held and considered
3 visions, and in the event the owner of an existing right-of-
4 to have terminated as of the date of enactment of this Act,
4 way and the Pueblo officials involved cannot reach agreement
5 and thereafter to be of no force and effect: Provided, how-
5 within a sixty-day period after renewal or widening has been
6 ever, That nothing herein shall be interpreted as terminating
6 requested or have not entered into a binding submission to
7 or otherwise affecting any right of timely appeal (other-
7 arbitration concerning the terms of a requested renewal or
8 wise available but for the enactment of this Act) from any
8 widening, then and in that event, consent of the Pueblo In-
9 such proceeding or action in which a final decree or order
9 dians to renewal or widening of existing rights-of-way shall
10 has been entered before the date of enactment of this Act.
10 not be required so long as the compensation paid to the Pueblo
11
SEC. 3. The Act of April 21, 1928 (45 Stat. 442), is
11 involved is determined in such manner as the Secretary may
12 hereby amended by striking all after the enacting clause and
12 direct and shall be subject to his final approval.".
13 inserting, in lieu, the following:
14 "That the provisions of the following statutes:
15
"Sections 3 and 4 of the Act of March 3, 1901 (31
16
Stat. 1083 and 1084) ;
17
"The Act of March 2, 1899 (30 Stat. 990), as
18
amended;
19
"Sections 1 and 2 of the Act of March 11, 1904
20
(33 Stat. 65), as amended; and
21
"The Act of February 5, 1948 (62 Stat. 17),
22
are extended over and made applicable to the Pueblo Indians
23 of New Mexico and their lands, whether owned by the Pueblo
24 Indians or held in trust or set aside for their use and oc-
25 cupancy by Executive order or otherwise, under such rules,
Union Calendar No. 394
94TH CONGRESS
2D SESSION
S. 217
[Report No. 94-800]
AN ACT
To repeal the Act of May 10, 1926 (44 Stat.
498), relating to the condemnation of cer-
tain lands of the Pueblo Indians in the State
of New Mexico.
MAY 22, 1975
Referred to the Committee on Interior and Insular
Affairs
JANUARY 29, 1976
Reported with an amendment, committed to the Com-
mittee of the Whole House on the State of the
Union, and ordered to be printed
THE WHITE HOUSE
WASHINGTON
Date 9/15
TO: Brad Patterson
FROM: BOBBIE GREENE KILBERG
For Your Information
For Your Comments/Recommendations
Per Your Request
Per Our Conversation
REMARKS:
FORD & LIBRARY 038830
OF THE INTERIOR
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
March
3.
1849
WASHINGTON, D.C. 20240
14 1976 SEP
Ms. Bobbie Kilberg
Executive Office Building
Room 106
Washington, D.C. 20500
Dear Ms. Kilberg: Bollis -
For your information, I am forwarding a copy of the
Solicitor's opinion of September 10, 1976, relating to
an erroneous survey in 1893 which misplaced the easterly
boundary of a certain parcel of land held in trust for
Taos Pueblo. The Deputy Solicitor has requested the
Cadastral Survey to resurvey the erroneous boundary
without delay. A copy of that request is also enclosed.
Should any further questions arise, please feel free to
contact Sharon Thompson, on my staff, since she is familiar
with the particulars involved.
Sincerely,
Reid Rend Peyton Chambers
Enclosures
REVOLUTION
1776-1976
INTERNATIONAL
OF
UNITED STATES
DEPARTMENT OF THE INTERIOR
1849
OFFICE OF THE SOLICITOR
Morch
)
WASHINGTON. D.C. 20240
Memorandum
SEP 13/1976
To:
Director, Bureau of Land Management
From:
Deputy Solicitor
Subject:
Taos Pueblo Tract C Boundary Survey
Attached is a copy of the Solicitor's opinion of
September 10, 1976, which concludes that an erroneous
survey in 1893 misplaced the easterly boundary of a
portion of the Antonio Martinez Grant (designated "Tract
C"), which was acquired by the United States in trust
for Taos Pueblo in 1941. Based on this opinion, a new
survey must be made to establish the correct boundary.
The surveyors will be required to cross a 13,000 foot
range which is snowbound most of the year. Thus it is
imperative that a survey team be sent immediately before
the first snow falls. You are hereby requested to order
the Cadastral Survey to survey the correct boundary of
Tract C without delay, in accordance with the attached
opinion.
Attachment
AMERICAN REVOLUTION WEENTENNING
1776-1976
TERIOR
UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
F
OFFICE
WASHINGTON. D.C. 20240
Memorandum
To:
Under Secretary
SEP 10 1976
From: ACTING icito
Subject: Taos Pueblo Tract C
In response to your Inquiry of July 19, 1976, I have
concluded that an erroneous survey in 1893 misplaced the
easterly boundary of a portion of the Antonio Martinez
Grant (designated "Tract C"), which was acquired by the
United States Tn trust for Taos Pueblo in 1941. The
pertinent facts are:
1. The Antonio Martinez or Lucero de Godol Grant
was confirmed by the U. S. Court of Private Land Claims
on March 3, 1891. The decree specified the Grant's
boundaries, and the easterly boundary was fixed as "in
to Its source; thence in a western direction to the
GERALD
FORD
a northerly direction, the current of said Rio Lucero
current of the Rio del Norte."
2. On December 21, 1893, the Surveyor General
Instructed a deputy surveyor, John H. Walker, to survey
the Martinez Grant according to the Court of Private Land
Claims decree, ordering that the easterly boundary follow
"the meander of the Rio Lucero to its source; that the
north boundary should be an easterly and westerly line
from the source of the Rio Lucero to the Rio del
Norte
Subsequently, the surveyor's field
notes, plat, and the affidavits of two witnesses confirmed
that these instructions had been followed.
3. The United States acquired portions of the
Martinez Grant, designated as Tracts A, B, and C, in
trust for Taos Pueblo in a condemnation proceeding
against the Watson Land Company (Cause No. 129 Civil
in the U.S. District Court for the District of New
REVOLUTION
AMERICAN
BICENTENNIAL
1776-1976
-2-
Mexico) in 1941. The Judgment on Amended Declaration of
Taking entered in that action on August 29, 1941, described
the easterly boundary of Tract C as "the meander line
along the east boundary of said Antonio Martinez Grant
as surveyed by John H. Walker (the true East boundary
of said Grant being the middle of the stream known as Rio
Lucero)", and fixing "The NE corner of said Antonio
Martinez Grant [as] at the head of Rio Lucero."
4. The United States Forest Service subsequently
acquired land adjacent to the easterly boundary of Tract
C. The boundary between the two tracts was never
fenced, and no artificial monuments exist on the ground
to mark that portion of the line.
5. Taos Pueblo objected to administration by the
Forest Service of Bear Lake, which lies below the source
of the Rio Lucero. In 1974, its objections combined with
an Impending survey of adjacent Pueblo lands led to an
Investigation of the boundary by the BIA. Forestry
personnel of the Albuquerque Area Office of the BIA
discovered that the distances and bearings of the Walker
Survey contained errors in the segment around the
northeast corner of 110 chains and that Walker's attempt
to correct such errors had resulted in a gross mis-
representation of the boundary line in that vicinity.
The BIA report summarized Walker's errors as follows:
The combined error of distance and
bearing from the west, and distance
from the east, amounted to 110
chains. Again, for whatever reason,
Walker did not choose to correct the
bearing between MC 4 and MC 5.
Instead he added 80 chains east of
where two lines Intersected. The
remaining 30 chains were corrected
by simply moving a whole section
of line (NE corner to 1 mile
corner) westerly on a 83° 15' W
bearing probably using MC 3 or the
1 mile location as the key. The
latter adjustment was compensated
by shortening the distance from
-3-
supposed MC 80 to the NE corner
(removing page 65-66 [of his field
notes] and erasure) which both
necess tated and permitted a
straight line bearing. The survey
notes show evidence of several
attempts to obtain an acceptable
correction.
The overall correction in distance
appears 10 chains more than required.
However, the survey closed
satisfactorily so it could have also
compensated for a shortage elsewhere
on the north boundary.
The easterly boundary as depicted by the distances and
bearings thus altered departs from the Rio Lucero well
below its source, erroneously placing Bear Lake and
approximately 300 acres outside the line.
6. The proper configuration of the Tract C boundary
was shown on a 1945 USGS map of Taos and Vicinity, but
the 1963 USGS Wheeler Peak Quadrangle displayed as an
"Indefinite boundary" the erroneous Walker survey line.
7. A portion of adjacent Forest Service lands
were Incorporated in 1964 in the Wheeler Peak Wilderness
Area. The erroneous Walker survey line was used to
describe the south boundary of the Wilderness Area in
a description reported to Congress pursuant to S 3(a)(1)
of the Wilderness Act, P.L. 88-577.
The title of the United States and Taos Pueblo to
Tract C. was established by the Judgment in the 1941
condemnation action. The description in that Judgment
fixed the east boundary of Tract C at the middle of
the Rio Lucero and the northeast corner of the Tract
at the head of the Rio Lucero. Both the Rio Lucero
and its source are natural objects; therefore, the
location of the stream and its source prevail over the
erroneous courses and distances in the Walker survey.
The courts have long recognized that "calls for natural
objects and fixed monuments control those for distances."
U.S. V. State Investment Co., 264 U.S. 206, 211 (1924);
see U.S. V. Redondo Development Co., 254 F. 656, 659
(8th Cir. 1918).
In order to conform to the natural objects which define
the boundary of the land acquired under the condemnation
judgment, it is necessary to correct the erroneous
courses and distances of the Walker Survey. The
Secretary has authority to correct an erroneous government
survey under 43 U.S.C. $ 2, and that authority has been
confirmed by the courts and by the Attorney General.
Russel V. Maxwell Land Grant Co., 158 U.S. 253, 256
(1895); Cragin V. Powell, 128 U.S. 691, 698 (1888); 19
Ops. Atty. Gen. 126 (1888). The fact that the portion
of Tract C north of the erroneous Walker line has been
administered by the Forest Service as a part of the
Wheeler Peak Wilderness Area is not an impediment to
correction of the survey nor to restoration of possession
to Taos Pueblo, its beneficial owner. in the Attorney
General's Opinion to the President of January 18, 1972,
42 Ops. Atty. Gen. (1972), the Attorney General
recognized that where title to land was acquired
by an Indian tribe under a treaty, an erroneous survey
of a boundary, which had become the boundary of an
adjacent Wilderness Area, could be administratively
corrected and that control of the land could be restored
to the tribe by executive order under 16 U.S.C. S 473.
The opinion stated:
The fact that a portion of the land
is now treated as a wilderness area
does not affect the question of
restoration. Although validly
designated wilderness areas can
only be changed with Congressional
07N879
consent (16 U.S.C. & 1131), the
foregoing principles preclude
application of that limitation
-5-
here, where the land should never
have been designated a wilderness
area in the first place.
The judgment in the Government's condemnation action
vested title in the United States and Taos Pueblo to
the land west of the Rio Lucero to its source as fully
and effectively as the treaty involved in that Opinion.
On the basis of the foregoing, it is my opinion that the
United States and Taos Pueblo acquired ownership of
Tract C under the condemnation judgment which fixed its
easterly boundary as the Rio Lucero and the northeast
corner as the source of that stream, and that the
Secretary has the authority to order immediate correction
of the erroneous Walker Survey to conform to those
natural objects. I recommend that the Secretary order
such correction without delay and request the President
to restore to Taos Pueblo by executive order control
of that portion of Tract C which has erroneously been
administered as part of the Wheeler Peak Wilderness
Area.
GERALD Be
Jaos Pueblo Council
GOVERNOR'S OFFICE
Box 258 - Taos, New Mexico
1846
The Honorable Kent Frizzell
Undersecretary of the Interior
Department of the Interior
Washington, D. C. 20240
Dear Mr. Frizzell:
I am enclosing herewith a resolution formally requesting
a meeting with you concerning an error in the description of our
Tract C. We have heard that you will be leaving office at the end
of this month, and we therefore request as early a meeting as pos-
sible SO that you may give this matter your attention before leaving
office. We are planning to send a delegation to Washington at your
convenience, but should your schedule bring you west in the next
week or so, we would be most gratified to invite you to a Council
meeting at the Pueblo whenever your schedule would permit.
Sincerely yours,
Jose Jor DRomero Cruz Romero
Governor
RESOLUTION
WHEREAS Taos Pueblo acquired a portion of the Martinez Grant (designated
as Tract C) under a condermation judgment in Cause No. 129-Civil in the U. S.
District Court on August 29, 1941, which described "the true East boundary of
said Grant being the middle of the stream known as Rio Lucero" and placed the
northeast corner of the Grant at "the head of the Rio Lucero";
WHEREAS in 1974 an investigation by the Area Forester disclosed that
courses and distances used to describe the easterly boundary and northeast
corner of Tract C in said judgment did not follow the middle of the Rio Lucero
but instead departed on an erroneous heading to the west and placed the northeast
corner of the Tract in Martinez Canyon, west of Lucero Canyon;
WHEREAS the erroneous courses and distances should inmediately be cor-
rected to conform to the Pueblo's ownership under such judgment;
WHEREAS an area within the Martinez Grant extending to the erroneous easterly
boundary has been included in the Wheeler Peak Wilderness Area under administration
of the U.S. Forest Service; and
WHEREAS the Pueblo wishes to correct the erroneous survey description of its
Tract C and to obtain full administrative control of its property;
NOW, THEREFORE, BE IT RESOLVED that Taos Pueblo hereby requests the
Department of the Interior to take such action as may be necessary:
(a) to validate Taos Pueblo's title to all lands west of the Rio
Lucero to its source,
(b) to obtain an accurate survey description of the easterly and
northerly boundary of the Martinez Grant (Tract C),
(c) to correct the erroneous courses and distances in the 1941 judg-
ment to conform to such accurate survey description, and
(d) to place administrative control of Tract C under the Pueblo and
the Bureau of Indian Affairs,
and the Pueblo further requests a meeting at the earliest possible date with
Undersecretary Kent Frizzell to discuss these issues and initiate a plan of
action to achieve those results.
Job [
Governor Jose La Cruz Romero
Dated: July 13, 1976
September 17, 1976
MEMORANDUM FOR:
JACK FORD
FROM:
BRAD PATTERSON
SUBJECT:
Visit to the Laguna Pueblo
A couple of notes thyour visit to the Laguana Pueblo:
1. General Indian Policy
Best briefing pieces are (a) the basic Republican
(Nixon) Indian Message of July 8, 1970. The real
turn-around point in Indian policy and well-known
in the Indian Community. (copy attached)
(b) 1000-word write-up just done on where we are
now. (copy attached)
2. BIA Reorganisation
The American Indian Policy Review Commission
(entirely a creature of the Congress, composed
of Congressmen, Senators and Indians --20 Execu-
tive Branch participation) has just put out a special
report on BIA organization. I attach my copy but
I don't think It is an issue which will arise at all
in Laguna. The Commission may bring it to
Kieppe's attention formally soon; the overall
Report of the Commission is due in January or
February. Our general posture on BIA organisa-
tion is that, internally, It's up to Kleppe and the
Commissionenfdaindian Affairs, consulting with
the Indians; externally (L.e. e. BIA's place in the
whole Executive Branch) we would keep an open
mind about such ideas as creating a new overall
Agency for Indian Affairs as long as (a) the Indian
Community speaks for the change in a clear voice
R.
(b) the new Agency is not put in the Executive
FORD
Office of the President and (c) it is controlled as
any other part of the Executive Branch by a Head
GERALD
LIBRARY
2
reporting to the President (not as has been proposed,
by an Indian-elected Board)
But this is a side Issue for now.
3. Specifically at Laguna
The Governor is a bright young man named Roland
Johnson. I am sure you will be looking him up.
The Economic Development Administration of
Commerce in FY 1976 has put in $112,000 to renovate
Laguna's Arts and Crafts building, and another
$237,000 to drill a new well and expand Laguna's
Community Center Building.
The Office of Indian Education in HEW in FY 1975 tar-
geted $105, 000 to a Special Education project at
Laguna and in FY 1976 upped it to $121,000. This
project is for infant stimulation and the training of
parents of infants. Office of 1. E. also sends
$200,000 to the All-Indian Pueblo Council for teacher
aides, of which Laguna gets some.
Dovetailing with this, HEW's office of Native American
Programs (ONAP) has two grants at Laguna, one of
$75,000 to put Indians to work on the removation of
the community center, and another of $89,000 for
general tribal administration and an on-the-job
training program.
The Labor Department under the CETA act in
FY 1976 gave $3,349,674 to the All-Indian Pueblo
Council as the Prime Spensor for manpower training
programs. Laguna gets a share of this, but here
in Washington we don't know how much.