By Ben Neary
NMWF Conservation Director
In March 2023, a federal appeals court ruled that Jemez Pueblo retains aboriginal title to a portion of the Valles Caldera National Preserve in the Jemez Mountains. Since that ruling, the court has repeatedly extended deadlines for lawyers for the pueblo and the federal government, which opposed the pueblo’s claims, to address whether the court should reconsider.
The National Park Service administers the Valles Caldera National Preserve. The area holds a collapsed volcanic dome that’s over 10 miles across as well as trout streams, lovely scenery and some of the nation’s best public land elk hunting. Lands in the preserve are sacred to many area Indian pueblos and tribes including Jemez Pueblo.
A three-judge panel of the 10th Circuit Court of Appeals in Denver ruled in March 2023 that the federal government had never extinguished Jemez Pueblo’s aboriginal title to Banco Bonito, an area in the southwestern corner of the preserve.
American Indian rights attorneys and advocates nationwide welcomed the appeals court decision. They said it marked the first court ruling affirming Indian aboriginal title to federal lands on the grounds that the federal government had never lawfully extinguished that title.
Then-Jemez Pueblo Governor Dominic Gachupin issued a statement after last year’s court ruling saying the pueblo would continue its legal fight.
“We have stood united as a Pueblo for centuries in our fight to secure our rights in this sacred land,” Gachupin said. “The federal courts confirmed our ownership of a portion of these lands. We will continue our fight to recover our ancestral lands held by the federal government until we succeed. Wavema, Redondo Peak, is just as precious to us as the lands confirmed to us by the Tenth Circuit Court of Appeals.
“Our ancestral lands within the Valles Caldera are the source of the Rio Jemez that delivers precious water resources for sustaining our traditions, People and Community. Wavema is our most sacred place, and it is crucial to the survival of traditional Jemez culture,” Gachupin stated.
There’s been little change in the daily management of the preserve since the court ruling. The preserve continues to limit visitation to areas of Redondo Peak exclusively to Indians, without a special permit, but the Banco Bonito area remains open to the general public.
The federal government acquired the Valles Caldera from private ownership in 2000 and established a trust to manage it. Congress designated the area as a national preserve and turned it over the National Park Service in 2014. At that time, it recognized the rights of Jemez Pueblo and other Indian tribes to access traditional cultural and religious sites and specified that areas of the preserve could be closed to non-Indians.
While American Indian advocates applauded last year’s appeals court ruling, not everyone agreed with it.
Judge Nancy Moritz, a member of the three-judge appeals court panel on the case, wrote a dissenting opinion warning that the court’s affirmation of Jemez Pueblo’s claims could have far-reaching implications.
“There is no reason tribes nationwide could not file similar claims seeking aboriginal title to lands within the 18 other national preserves scattered throughout the United States or, for that matter, to any lands owned or later acquired by the government,” Moritz wrote.
Court filings in the federal case since last year’s ruling indicate more developments may be yet to come.
Judge Gregory Phillips wrote the panel’s majority opinion upholding the Jemez Pueblo claims. A month after the opinion, Phillips filed an order in the case setting mid-September 2023 as the deadline for Jemez Pueblo or the federal government to ask for a rehearing. A rehearing would give the parties a chance to assert that the original court order was in error.
Every month since last September, the Circuit Mediation Office at the 10th Circuit Court of Appeals in Denver has issued a new notice to lawyers for Jemez Pueblo and for the U.S. Department of Justice’s Environment and Natural Resources Division. Each notice has extended for yet another month the deadline for the lawyers to file a request for the court to grant a rehearing. The last such notice was filed Aug. 6.
What’s happening behind the scenes? Those who know aren’t saying:
_ Attempts to reach lawyers for Jemez Pueblo were unsuccessful.
_ In response to an inquiry from the NMWF, the Environment and Natural Resources Division of the U.S. Department of Justice in Washington, D.C., responded that it “cannot comment on pending matters or matters that may be addressed in future litigation.”
_ David W. Aemmer, the official with the court’s mediation office who signs the monthly extension notices, declined comment.
_ Valles Caldera Preserve Superintendent Jorge Silva-Bañuelos didn’t respond to messages seeking comment.
Whatever the eventual outcome, it’s clear the stakes are high.
The federal government took ownership of the New Mexico Territory, including the Valles Caldera, from Mexico in 1848. In 1860, the federal government transferred the Valles Caldera to private ownership, where it remained for generations, changing hands only rarely over the following decades. With its lush grass, the area has offered prime grazing and was heavily used for sheep and other livestock as well as timber production throughout the 19th and 20th centuries.
The federal government reacquired the property from its last private owners, the Dunigan family of Texas, in 2000.
The government paid over $100 million for just under 100,000 acres. The money came from the Land and Water Conservation Fund, which collects revenues from off-shore energy production. The legislation specified that the federal government transfer 5,000 acres of property to Santa Clara Pueblo, allowing the pueblo to safeguard the headwaters of its water supply.
Indian tribes generally had only a limited window of time in the mid-20th century to assert any lingering land claims against the federal government. However, lawyers for Jemez Pueblo asserted that the government’s reacquisition of the Valles Caldera in 2000 after some 140 years in private ownership gave them a new opportunity to assert their ownership claims. The courts agreed.
Jemez Pueblo traces its use and occupation of the land, including the use of many sacred sites and trails, back through the centuries – long before the presence of Europeans in what later became New Mexico. The pueblo traditionally farmed in the Banco Bonito area.
After the federal acquisition in 2000, Jemez Pueblo’s federal case claiming the national preserve lands percolated for years, bouncing between the district court in New Mexico and the federal appeals court in Denver. The pueblo originally claimed rights to the entire preserve but ultimately trimmed its claims in the face of court rulings that neighboring tribes had used the area over the centuries as well.
Other tribes and pueblos, as well as Indian rights activists, have watched the progress of Jemez Pueblo’s claims carefully. Much of the expert testimony and reports about Native American religious beliefs and historic use of the area by Jemez and other pueblos or tribes is not open to the public in the court files.
Many non-Indians value the area as well. It’s popular with anglers, hunters and cross-country skiers. Many other visitors are content to look with awe on its rolling grasslands surrounded by mountain peaks — all capped by the incomparable New Mexico skies.
Elk hunts on the Valles Caldera are in great demand, with the number of hunters seeking the coveted tags far exceeding supply. The New Mexico Department of Game and Fish manages the hunting.
Now, as fall comes to the Jemez Mountains, the sound of bugling bull elk increasingly will roll across the canyons. Like the morning sun cutting through the mists that settle on the vast Valles Caldera, the future of this place that so many different people cherish will reveal itself over time.