Here's the cert petition in a case we've been following out of the Tenth Circuit involving an attempt by a private utility company to take property which is now partly tribal land.
In Public Service Co. of New Mexico v. Barboan, 857 F.3d 1101 (10th Cir. 2017), there wasn't a question that a federal statute prohibited a utility company from taking "tribal land." The big issue was what land fell within that definition.
The Navajo Nation owns undivided fractional interests in two parcels which a utility claimed it needed for a electric transmission line. The land earlier had been "allotted" to individual owners, who are treated like fee owners except for certain restrictions on alienation. This land is no long tribal land or part of any reservation, and under a federal statute, allotted land is subject to an exercise of eminent domain:
Lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee.
25 U.S.C. § 357.
Tribal and reservation land, by contrast, cannot be taken.
Eventually, the Navajo Nation obtained fractional interests in the two allotted parcels via a "buy back" consolidation program (14% for one parcel, a mere .14% for the other). After the utility sought to condemn for the transmission line, the Navajos objected, asserting that its small interests took the land outside of the statutory text. The U.S. District Court agreed, concluding that if the Navajo Nation owned any interest in the condemned parcels, it could not be taken. Moreover, the court held that the Nation was a party whose presence was needed but who could not be joined ("indispensable party" for all you old-timers). The court allowed the utility to take an interlocutory appeal.
The Tenth Circuit affirmed, but only on the first issue, rejecting the utility's "once an allotment, always an allotment" theory (as the court labeled) it, and concluding that "[n]o court has held that § 357 allows condemnation of tribal land, whether the tribal interest is fractional, future, or whole." After the Tenth Circuit denied en banc review, the cert petition followed.
Here are the Questions Presented:
A common feature in the Eighth, Ninth and Tenth Circuits is “allotment land.” This land was once part of an Indian reservation but was carved out and “allotted” to individual members of the tribe as their own property, held in trust by the United States. In 1901, Congress enacted 25 U.S.C. § 357, which allows States and state-authorized public utilities to condemn rights-of-way across allotment land for any public purpose, while paying fair market value to the allotment holders. The Tenth Circuit held that, when an Indian tribe acquires any interest in a parcel of allotment land – no matter how small that interest – the statute no longer applies and no part of the parcel may be condemned for any public purpose. The Questions Presented by the Tenth Circuit’s decision are:
1. Does 25 U.S.C. § 357 authorize a condemnation action against a parcel of allotted land in which an Indian tribe has a fractional beneficial interest, especially where (a) the the tribe holds less than a majority interest, (b) the purpose of condemnation is to maintain a long-standing right-of-way for a public utility, and (c) the statute was not “passed for the benefit of dependent Indian tribes.” Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918)?
2. If 25 U.S.C. § 357 authorizes such a condemnation action, may the action move forward if the Indian tribe invokes sovereign immunity and cannot be joined as a party to the action?
The petition raises questions of Indian law, national energy policy, whether eminent domain is an in rem proceeding (as frequently noted, but most often not true in the modern era). The petition points out that there isn't a traditional circuit split, because (among other reasons), "[a]llotment lands lie almost entirely in the western States encompassed by the Eighth, Ninth and Tenth Circuits. Two of those circuits - the Eighth and Tenth - have now prohibited use of § 357 where an Indian tribe has acquired an interest in the allotment land." Pet. at 21.
For us eminent domain lawyers, the most interesting part of the petition begins on page 22 ("'Condemnability' Is an Attribute of the Land."), which argues that what is important is the land, and not who owns it.
The petition also raises the indispensable party issue as its second question presented, even though the Tenth Circuit declined to consider it. Just condemn the land without the Nation.
Both the United States, and the Navajo Nation, have filed briefs in opposition:
Stay tuned, as always. Follow along on the Court's docket here.
Petition for Writ of Certiorari, Public Service Co. of New Mexico v. Barboan, No. 17-756 (cert. petition fi...
