Native American Rights

Tenth Circuit Affirms Dismissal of Public Service Company of New Mexico’s Condemnation Action Brought Against Two Navajo Allotments

Our firm, along with New Mexico attorney Zackeree Kelin of Davis Kelin, represents Navajo Native Americans who have allotment property rights in New Mexico. In its opinion, the Tenth Circuit discusses the history of the allotments where “Congress tried to force tribes to assimilate into American society, minus much of their autonomy. Congress carved reservations into allotments and assigned the land parcels to tribal members…” Congress provided for the Indian-allotted land to be held in trust by the federal government’s Department of the Interior, The Bureau of Indian Affairs (“BIA”) acting as their trustee.

The allotments at issue in our case are properties that are outside the boundaries of the Navajo Nation. 63 percent of Navajos living in New Mexico live below the poverty line, and their stake in these allotments is one of their few economic resources.

Public Service Company of New Mexico (PNM) held a right-of-way to have its electrical transmission lines run across the land where our clients owned a beneficial-interest. This right-of-way expired in 2010. In proceedings before the BIA our clients disagreed with PNM and the BIA over the “fair market value” PNM would pay our clients for their right-of-way. Without the allotees’ consent, the right-of-way could not be renewed.

PNM then filed an action to condemn our clients’ land in the United States District Court in New Mexico. The action named our clients as defendants. Other parties in the condemnation action are the United States (representing the BIA) and the Navajo Nation which owned a fractional interest along with our clients in the allotments at issue.

Along with the Navajo Nation and the United States, we moved on behalf of our allotee clients to dismiss PNM’s condemnation action. We argued that PNM could not proceed with the condemnation action because the Navajo Nation was immune from suit due to its sovereign nation status. The district court agreed, finding that even where the Navajo Nation owns only a small fractional interest in an allotment, PNM could not condemn rights-of-way. The district court judge dismissed the condemnation action as to those parcels of land in which the Navajo Nation holds an interest. PNM appealed that decision, but in early June, the Tenth Circuit Court of Appeals affirmed the district court’s decision. The Tenth Circuit also denied PNM’s petition for rehearing en banc on July 21, 2017. PNM intends to file a petition for the United States Supreme Court to hear the matter. If the decision stands, it means that PNM cannot condemn allotees’ property in which the Navajo Nation shares a fractional interest.

You can find the district court’s opinion 167 F.Supp.3d 1248 (D.N.M. Mar. 2, 2016) here.

You can find the Tenth Circuit’s decision 857 F.3d 1101 (10th Cir. 2017) here.