New Mexico in Focus; 340; Sandia Mountains: Who Can Claim Ownership?

Major funding for in focus is provided by the McCune Charitable Foundation, enriching the cultural life, health, education, environment and spiritual life of the citizens of New Mexico. Who owns the West Face of the Sandy Mountains? In 1998 a Federal Judge awarded the mountainside to the Sandy of Pueblo, but Federal officials and private property owners say the agreement is unjust and worthless. Who is right and when will the matter be resolved? The answer is, next, not in focus. Hello, and welcome to in focus.

I'm R.C. Choppa. In July of 1998 a Federal Judge ruled that nearly the entire West Face of the Sandy Mountains should belong to the Pueblo of Sandy. The Federal Court ruling came after a four-year-old lawsuit and a claim that dates back to a 1748 Spanish land grant. The judges' position disappointed many parties, including New Mexico Republicans in Congress, representatives of Bernalillo County, the City of Albuquerque and private property owners, in the foothills of the disputed tract. Everyone wants to preserve the Sandy amount and wilderness and work toward resolving this issue. The question is, can everyone agree to the current settlement? Tonight my guest include Frank Chavez, member of the Sandy of Pueblo and Sandy a tribal council member, Bill Kylie, co-chair of the Sandy amount and coalition, Barbara Seward, chairwoman of the Bernalillo County Commission, and Clifford Dills, the Sandy

and District Ranger with the Forest Service. Thank you everyone for being here today. Frank I want to start with you and I'm sure you are very happy with the judges' ruling. Tell me what the basic claim is to the Mountain, to the West Eye of the Mountain. The claim is for an adjustment of our eastern boundary. In 1748 the Spanish land grant was provided to the Pueblo and in 1858 Congress confirmed that grant. There are, we retain the original grant documents. We have found the Hantrin copies in Mexico and Spain as well. They are consistent on the eastern call and the interpretations take the eastern boundary to the crest that is to the top of the mountain. What we seek is a survey to correct those boundaries to our eastern boundary at the crest. And those were changed when or misinterpreted at what point do you believe?

In surveys, while Congress intended to confirm the grant and it did confirm the grant and its eastern boundary, the surveys were incorrect. They went to the foothills of the Sandy as opposed to the crest where they rightfully should be. The surveys beginning at what time? In the 1800s. Okay so since then there's been misinterpretation of the boundary, whether it's the foothills or the crest, is that correct? While the survey places the boundary at the foothills and we contend that is incorrect that it should be placed at the crest, that our eastern boundary should be the crest of the mountain. And the judge in 1998 ruled that. He saw the merits of that claim and he also determined that the Department of Interior should take this into consideration and perform a resurvey. Okay, Bill, where do you stand in the validity of this claim? Well we don't dispute the land grant. What we disagree with is that the eastern boundary is the top of the mountain.

We believe that the survey in the 1800s resulted in the Pueblo being actually bigger than it was intended to be. And we also know that Pueblo up until I believe the 1980s did not dispute eastern boundary. And Judge Green, when he made his decision in favor of the Pueblo, used the administrative procedures act and didn't examine the facts of the case and we think that can be overturned on appeal. The facts being in pretty much we have done the same sorts of studies that Frank has alluded to, looked at the same documents and had historians make interpretations as to what that meant and come to a radically different conclusion than the Pueblo does. So you believe because they didn't dispute the boundaries until the 1840s that it should stay at the foothills. Is that correct? Well that's correct.

They didn't dispute the boundaries until the 1980s and there were several chances established by Congress for all Native American claims to be brought forward and the Sandia's have never brought them forward and have now exceeded the statute of limitations on those claims. Let me ask Frank about this. Is that correct? Did you not claim it until the 1980s? The boundaries were never to speak before that because in most instances there was really not an understanding that those boundaries had actually changed, nor were there resources to really take this to a forum which would undertake our case. The act of Congress that was really the defining point in time, that's the 1858 confirmation of the grant itself. That is what we are contending that is the United States position with respect to the eastern boundary and that position as confirmed by Congress is something that cannot be

changed by any administrative actions, survey errors or any subsequent actions that unless there is a clear intent by Congress to change our grant boundaries, then we must recognize the 1748 grant as it was confirmed by Congress. And you do recognize 1748 but it's just that we don't believe it says that the boundary is on the top of the mountain. Barbara, does Brennan-Leo County recognize the claim as valid? No we don't and for much of the same reasons that Mr. Kylie has given, when the King of Spain granted this particular grant, he had the local general actually measure a former Pueblo. The Pueblo of Sandia are very good record keepers and we have had historians looking very

carefully at the records in Mexico City in Spain and in New Mexico and they have concluded that it was a formal grant, a formal Pueblo grant, when they got here to measure out. Dating what time? People could get confused if we don't give some dates. Okay, that was in 1717, May the 16th was when General Bustamante carried out his assignment. And there's actual verbiage about how they measured out a formal Pueblo and when they found settlers at the river, they realized that they couldn't go that many leagues to the west. So they made it a little longer north and south, so it's a rectangle rather than a square, but it does comprise the same acreage that the formal Pueblo would comprise. Let me, let me get to you before I get back to Frank so he can comment on that.

Where does the Forest Service stand on this? The Forest Service is obviously a party to the appeal, which Burntleo County and the coalition is at this point, but also the Forest Service would like to see a settlement outside of litigation because we think a lot of the issues and problems that are out there are farther reaching than the claim itself and then secondly, we're not sure if whatever the decision is made in this will be final. It would probably be taken to another level by the party who doesn't win in this piece of litigation. What do you mean for other reaching than this claim? Well, there are issues to access to national forest lands, to private landowners that could be and have been tempted to be addressed in a settlement agreement that are farther reaching than just the claim issues of the land.

Right. Well, let's get to that point then, the settlement agreement, Frank, what does the settlement ensure this is what has been, that was agreed upon by I think the tram company, Pueblo, Sandia, and the Forest Service, is that correct? That's correct. And then it was opposed or the Burntleo County Commission is against it. The Republican, Republicans, New Mexico, Republicans in Congress, City of Albuquerque, and the Sandia, Pueblo, I mean the Sandia Coalition, not coalition. Okay. The parties here involved, what does the settlement ensure? Our initial objective, our primary objective was to have, as I say, the eastern boundary corrected and the land brought into trust. What this settlement does, it provides for a compromise. We have compromise from that initial position of taking the land into trust to one of ensuring its preservation of protection, ensuring that we have access to the area, which contains many of our important shrines to the area in the area, that we have access that is unobstructed,

that there be no further development of the area, and that we have recognition of an ownership interest in the area, because we believe by the fact that we believe that the grant is valid, and this land should rightfully be ours, that we've been unjustly handled here, and the sense of ownership that we seek is important to us for that reason. Unjustly handled, what do you mean? Well, for one thing, the grant itself is to the area is not recognized. While there are some interesting historical issues here, the fact of the matter is that similar grants of land have been readjusted, they have had similar language, expect to eat the eastern call. One example is the Lena Ganga's grant, its boundary was adjusted to the crest of the Sandia's, to the south was a sled of Pueblo's grant.

That grant was adjusted to the crest of the mountain. The eastern calls for those grants are very similar, if not identical, to the Sandia grant, and that is what we seek is to have that adjustment made. So this settlement was a difficult compromise for us, and we went beyond compromising our initial position to providing benefit to those that are our neighbors. To the Forest Service, we provide access to the Forest Service, we provide access to two points. One, the road into the canyon does not have legal access. This settlement resolves that and provides legal access. There is a trail in trespass going across our current trust lands, which we have provided access to under the settlement agreement. The access into the private areas that the subdivisions is through our lands. Those easements and rights of ways have limited term by this settlement, we provide permanent access in addition to utility corridors and so forth.

Do you claim ownership of the private property owner's property? Not in this instance, in our lawsuit, we have asked that they not be considered as part of our claim. I see. Bill, where do you stand in this settlement? What do you oppose it? Well first off, we believe that a negotiated solution is the best solution for everybody. I agree with what Cliff mentioned that this could drag on in the courts for quite a number of years. I believe we have agreed in principle on a lot of the high level issues on the ability of the prevalence who manage their own access and for their religious and cultural reasons on the rights of way and the existing utilities and that sort of thing. Where we run into problems is the details of the agreement. The most important part of the agreement to me is the permanency. We've been going through this for 12 or 13 years and we don't want an agreement that

can be challenged in three or four years in the courts again and go through all this. We feel the present agreement has too many ambiguities or loopholes in it that could be challenged. Can this be challenged if it needs congressional approval? You know, if it has the legislative action to approve the settlement agreement, the settlement agreement is very clear. You have to read it in the correct context. There is clear language which says that this claim is resolved. It clearly states that. This issue of ambiguities is probably taken out of context, you know, taking a word here, a word there and not really understanding the full scope of this settlement agreement and not what it does, it does provide finality to this issue in terms of our claim. It resolves the claim itself. What we can understand is that with all the compromises that we've taken to date on this thing, why we're finding difficulty in having the coalition, the county, the city, accept

this as a fair settlement. And that in the district court, we basically won round one and we're giving up more than is really needed in terms of the claim itself. Compromise is including what? The access in particular. Dropping our claim. Bill, do you respond to that? Yeah, it's, you know, I've spent nine or ten months in the process that developed this agreement, so I think I don't think I misunderstand it. It has some flaws, for instance, in part of the sense of ownership, going to name the area in Tiwah, which is fine with us, but the exception of the current agreement uses the word trust, which has a lot of legal implications in it as part of the title. We would like it to be named in Tiwah, but omit the word trust.

And it's a lot of those kinds of issues from what is, what can go back to the document two years from now and say what the original intent was. Okay. Barbara, last year, I think the coalition dropped out of negotiations and so did the Bernalillo County. Why did you drop out of the negotiations of this settlement? Well, after spending eight or ten months in negotiations, we identified so many things that we all agreed to. It's just amazing. We don't want to see any more development and we want to see many of the same protections that the Pueblos interested in. However, there were language problems and we feel that there were some very good ideas rolled into a flawed document. We too are very anxious to reach a settlement outside of litigation. I don't think that we feel that litigation is the appropriate avenue if we can do it

in another way. And it seems that we are so close and we understand each other and appreciate each other's issues except for language. And there's some language construction in there that's very, very troubling to us. What are you talking about specifically? Well, specifically, there's areas that protect the Pueblo and just sort of notice the public's rights. And we think the public should be protected in the same way that the Pueblo is. Can you be more specific? I don't have the language of the agreement in front of me but there's actually different words about how this will apply to the public as opposed to the Pueblo. We certainly want the Pueblo to have free and unfettered access for the religious and cultural purposes.

And I think it's a real shame that it has taken this sort of an issue to come to the forefront to get them to have what they should have. There's just so many things that we agree on. What we do, we want permanence, we want predictability, and we want the public's interest preserved in the same way. But Frank just said that there would be predictability. We think that with some of the verbiage in the agreement that there won't be, that it's just almost fodder for some very sharp attorneys to say, well, let's try this or that. I want to say too. I feel there are some loopholes that I do. We, the county, and that's all I can speak for, implicitly trust the Pueblo, the governor, Frank, and we know that their intentions are honorable. What we're concerned about is how future generations from either side might interpret these documents.

Consequently, I'm not sure that it serves the Pueblo any better than it serves us. Also we need to remember that there's three documents. There's a settlement agreement, there's going to have to be legislation through Congress, and there's also the management agreement, and our attorneys have told us that the three do not necessarily track. That's troubling. As a practical matter, what changes does a settlement bring to the management of the land? Generally for the most of the public out there, whether it's members of the recreating public or it's people from Sandy of Pueblo, what they won't see is a whole lot of changes from our management day to day. There are some things for the Pueblo that they don't have now as Barbara mentioned, the ability to go and worship on the mountain without permits.

Settlement agreement addresses that, and that would not be a permitted activity for the people from the Pueblo. On the other hand, the existing uses the way our attorneys and the way the federal government looks at the settlement agreement would basically stay in place and would be able to continue. Probably one of the biggest differences would be new uses, and if new uses were proposed for the area, it would not only have to go through the public involvement, which is in place now to make those decisions, but it would also go through a consent role with the Pueblo. The federal government and the Forest Service looking as best we can in our crystal ball look at a lot of the new uses up there as things that we probably don't want. The wilderness area and the acts that surround that protect a lot of the new uses, and a development that's already there in existing is basically at the level that we feel is environmentally appropriate for the area.

So there is always a potential for a new use to come up, and there would be a consent role with the Pueblo, but there's also the other uses that are there now which would remain the same. The settlement doesn't allow for further development in the area. Basically what it does is if there is further development, it would have to go through a process both with the Pueblo, and this is as a new use, and also with the public if the Forest Service decided to put an additional campground in, there would be processes on both sides before that could take place. Do you think there are predictabilities in this settlement? Does the US Forest Service feel that you can count on the same laws to continue for years and hundreds of years? I know that's what we've tried to do with the document, and I know with our attorneys we've tried to basically craft it in a way that there is a level of predictability, and it is within the four corners of the document.

And from that standpoint, we feel comfortable with that. Obviously in any kind of mediated or negotiated settlement, there's trade-offs, and the trade-offs are what helps you get to that compromise that hopefully everybody can be at the table with. When you're trying to cover things progressing, what now, you need congressional approval to manage, he doesn't approve of this, Senator Peter Minichy, and Representative Heather Wilson don't agree to this settlement. The Senator and the Congresswoman want the parties to come together on this, and we feel we're very close. These issues of ambiguity and language, they separate us now by miles at this point, but I'd like to point out just language from the act, which talks about permanency and someone who claims. All Pueblo claims to write title and interest of any kind into lands within the area, any part thereof, and property interests that they're in, as well as related boundary,

survey, and trust pass claims are hereby permanently extinguished. The United States title to the area is hereby confirmed. Now if that's not strong enough language, I don't know what is. Barbara, where is the loophole there? There are provisions in there for unrestricted hunting and no seasons and so forth that convey an Aboriginal hunting right, which can always be used in future court conflicts as to say, well, that conveys ownership. The word trust is troubling to us. What context was trust in there? A name. A name. Okay. Bill, do you see loopholes in there? Well, I rather like the phrase that Frank read, but it's not the only phrase that's in there and I believe it's not in the so-called settlement agreement, it's in the act portion.

And that's part of our problem, is that you can go to different... That's from the act. This is from the settlement agreement. But then the point still is, is that you can go to two different parts of the three different documents and take a paragraph out and get a different interpretation. It's not necessarily consistent and one of my fears, I'm not a lawyer, is that somebody can take one of those documents and make a case that this is the way it was really intended and here it says right here that we can do this or everybody recognizes the pueblos right to the whole area or the fact that it's a trust. We've got about a minute left. What now for the coalition? I think both sides are working with representatives of the congressional delegation and trying to see if we can come closer together.

I think we're very much in agreement on a lot of the high-level principles on this and we're just arguing over the detailed language and you would think that we could overcome that in reaching agreement. Barbara, what now for the commission? Same, we are working, delegation has appointed gentlemen to speak with all of us, I think all of us trust him and he is trying to bring us closer together and identify points of compromise and see if we just can't get there. What is the U.S. Service want? We would like to see it settle once and for all and allow for the access for all Americans in the area to continue and the use of the area so people can enjoy it. Frank, what would you like to see happen now? At this point in time we would agree to the settlement. If this is taken any further, I don't know how much more patience we can have because

we've compromised so much and there's no more compromise in us. This we've been at this for a long time. We feel we've been fair, we feel we've compromised a great deal to the point where even our own people have criticized the leadership in this regard. We don't know how much further we can take this, as a matter of fact, we cannot take it any further. There can be no more compromise. Otherwise we get virtually nothing out of this. I think that if that is the objective then we may be in a stalemate, if the objective is to provide us with anything less than what we have agreed to at this point in time then it becomes a real problem for us. Okay, well this is definitely not the end of this conversation. I hope to invite everyone back again for further discussions. Thank you everyone for being here today. Thank you. That's our report for this week. Next week join us for a discussion on genetically engineered foods until then from all of us at K&M E, I'm R.C. Choppa.

Have a good evening. Major funding for in focus is provided by the McCune Charitable Foundation, enriching the cultural life, health, education, environment and spiritual life of the citizens of New Mexico. You