The 10th U.S. Circuit Court of appeals has granted the Jemez Pueblo traditional access to the Banco Bonito area of Valles Caldera National Preserve/NPS file

A split 10th U.S. Circuit Court of Appeals has given the Jemez Pueblo rights to use a portion of Valles Caldera National Preserve in New Mexico as its ancestors did, a ruling that raises the prospect that tribes elsewhere in the United States will seek to regain access to their traditional homelands.

The decade-old case before the 10th Circuit revolved around whether the pueblo had "the exclusive right to use, occupy and possess” the lands of the national preserve under its continuing aboriginal title to the 89,000-acre National Park System unit. A lower court in 2013 had dismissed the claim, ruling that an 1860 act of Congress gave the land to the heirs of Luis Maria de Baca and ended any aboriginal claims to the land.

When that ruling was appealed to the 10th Circuit, the court overruled the district court and remanded the case, holding that while Congress conveyed title to the land to a private party, that did not dismiss aboriginal claims to the land. On another appeal, the 10th Circuit again overruled the lower court. In its 52-page ruling (attached below) Wednesday, the 2-1 majority granted the Jemez Pueblo's aboriginal claim to the Banco Bonito area of the national preserve.

National Park Service officials declined Friday to comment on the ruling, saying the case remained pending. It was not immediately known whether the Interior Department would appeal the ruling to the U.S. Supreme Court.

Aboriginal Title

Aboriginal title to a landscape, the "right of occupancy," was recognized by the U.S. Supreme Court in 1823. In the wake of that ruling, the high court has "repeatedly affirmed that a tribe’s right of occupancy 'is as sacred and as securely safeguarded as is fee simple absolute title,'” the 10th Circuit noted.

However, to rightly claim aboriginal title, a tribe must “show actual, exclusive, and continuous use and occupancy for a long time of the claimed area," and that point contributed to the 10th Circuit's split decision in favor of the Jemez Pueblo.

In the case that dates to 2012, Jemez Pueblo, a federally recognized American Indian tribe with 3,400 tribal members in northern New Mexico, claimed aboriginal title to four sections of the national preserve. The district court had dismissed three of those claims, finding that the tribe had failed to previously notify the federal government of its claims to those lands. The district court also dismissed Jemez Pueblo's claim to Banco Bonito, ruling that the tribe hadn't demonstrated exclusive use of the lands since 1650.

The lower court noted in its 530-page opinion that “for many centuries, non-Jemez Pueblo American Indians, including the ancestors of numerous modern Pueblos and federally recognized Tribes, wandered throughout and actually used the Valles Caldera . . . to sustain their aboriginal communities in ways substantially similar to Jemez Pueblo."

But the 10th Circuit's majority, in granting the claim for aboriginal title to the Banco Bonito area, held that the pueblo only had to show that "it possessed aboriginal title at one point and then never abandoned the land or had it extinguished."

Dissenting from that ruling was Judge Nancy L. Moritz, who was of the opinion that while the Jemez Pueblo did exert exclusive use of Banco Bonito for 350 years, from 1300 to around 1650, "other tribes have also used the area in the centuries that followed."

"...  the majority’s snapshot in-time approach to exclusivity could subject the government to countless new aboriginal-title claims," the judge added. "[t]here 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. ... Under the majority’s analysis, so long as those tribes exclusively used an area during some prior historical era and their use has continued in some form, they may now assert aboriginal title— even if their use has not been exclusive for hundreds of years. Rather than open the door to quiet-title claims based on tribal use of land that has not been exclusive for centuries, I would hold that Jemez Pueblo cannot assert aboriginal title."

Banco Bonito

Located in the southwestern corner of Valles Caldera, this area contains some of the youngest lava flows in the caldera, dating to 50,000-60,000 years ago. According to Valle Grande, A History Of The Baca Location No. 1 written by Craig Martin, Ancestral puebloan peoples began farming the general area around 500 A.D., and by 700 A.D. the focus was on the Banco Bonito area. The farmers built rock shelters, and the remains of at least 100 of the structures have been identified.