                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                                June 26, 2015
                                 PUBLISH                  Elisabeth A. Shumaker
                                                              Clerk of Court
              UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



PUEBLO OF JEMEZ, a federally
recognized Indian Tribe,

      Plaintiff - Appellant,

v.                                                  No. 13-2181

UNITED STATES OF AMERICA,

     Defendant - Appellee.
______________________________

THE NATIONAL CONGRESS OF
AMERICAN INDIANS; THE
ASSOCIATION ON AMERICAN
INDIAN AFFAIRS; AMERICANS
FOR INDIAN OPPORTUNITY;
INDIAN LAND TENURE
FOUNDATION; NATIVE LANDS
INSTITUTE,

      Amici Curiae.


                 Appeal from the United States District Court
                        for the District of New Mexico
                     (D.C. No. 1:12-CV-00800-RB-RHS)


Karl E. Johnson (Randolph H. Barnhouse, on the briefs) of Johnson Barnhouse &
Keegan LLP, Los Ranchos De Albuquerque, New Mexico, for Plaintiff-Appellant.

Robert P. Stockman, Attorney, Environment & Natural Resources Division, U.S.
Department of Justice, Washington, D.C. (Sam Hirsch, Acting Assistant Attorney
General; Mark R. Haag and Kenneth D. Rooney, Attorneys, Environment &
Natural Resources Division, U.S. Department of Justice, Washington, D.C., with
him on the brief; Cassandra Casaus Currie, Office of the General Counsel, U.S.
Department of Agriculture, and Michael Williams, Office of the Solicitor, U.S.
Department of the Interior, Washington, D.C., Of Counsel on the brief) for
Defendant-Appellee.

Kim Jerome Gottschalk, Susan Y. Noe, and Matthew L. Campbell, of Native
American Rights Fund, Boulder, Colorado, filed an Amici brief for The National
Congress of American Indians and The Association on American Indian Affairs.

Gregory P. Barbee of Sheppard Mullin Richter & Hampton, LLP, Los Angeles,
California, filed an Amici brief for Americans for Indian Opportunity, Indian Land
Tenure Foundation, and Native Lands Institute.


Before PHILLIPS, SEYMOUR, and MORITZ, Circuit Judges.


SEYMOUR, Circuit Judge.



      The history of Indian law and in particular “decisions of the Supreme Court

recognizing the validity of original Indian title 1 make the existence and extent of

such aboriginal ownership a relevant issue in title examinations whenever a chain

of title is traced back to a federal grant or patent.” Felix S. Cohen, Original

Indian Title, 32 Minn. L. Rev. 28, 43 (1947). 2 Not surprisingly, then, “[g]rantees

       1
        The term original Indian title is also referred to as “aboriginal title,
unrecognized title . . . or simply Indian title.” See Oneida Indian Nation of New
York v. State of N.Y., 691 F.2d 1070, 1075 (2d Cir. 1982) (internal quotation
marks omitted).
       2
           Cohen served as the Associate Solicitor and Chairman of the Board of
                                                                       (continued...)

                                          -2-
who have relied on the Great Seal of a federal department as assuring the validity

of land grant titles have not infrequently discovered to their sorrow the truth of the

old French saying, ‘Meme le plus belle fille du monde ne peut donner que ce que

l’a.’ Not even the Federal Government can grant what it does not have.” Id.

      The Pueblo of Jemez brought this action against the United States under the

federal common law and the Quiet Title Act (QTA), 28 U.S.C. § 2409a, et seq.,

seeking to quiet its allegedly unextinguished and continuing aboriginal title to the

lands of what is now the Valles Caldera National Preserve. The government filed

a motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). The district court held it

lacked subject matter jurisdiction as a matter of law and dismissed the action

pursuant to Rule 12(b)(1). It reasoned that sovereign immunity barred the action

based on its conclusion that the Jemez Pueblo’s title claim against the United

States accrued in 1860 when the United States granted the lands in question to the

heirs of Luis Maria Cabeza de Baca (the Baca heirs). The claim thus fell within



      2
      (...continued)
Appeals for the United States Department of the Interior. He received his B.A.
from the College of the City of New York in 1926, and then obtained an M.A. and
a Ph.D. from Harvard University in 1927 and 1929, respectively. Cohen also
received his law degree from Columbia University in 1931. He authored the
Handbook of Federal Indian law in 1942 and went on to publish many influential
books and law review articles, including The Spanish Origin of Indian Rights in
the Law of the United States, 31 Geo. L.J. 1 (1942), and Original Indian Title, 32
Minn. L. Rev 28 (1947).

                                          -3-
the exclusive jurisdiction of the Indian Claims Commission Act (ICCA), 3 which

waived sovereign immunity and provided a cause of action to all Indian claims

against the government that accrued before 1946 so long as they were filed within

a five year statute of limitations period. ICCA § 12, 25 U.S.C. § 70k (1976).

Because the claim was not so filed, it became barred by sovereign immunity.

      The Jemez Pueblo appeals, contending that its aboriginal title was not

extinguished by the 1860 grant to the Baca heirs and that its claim for interference

with its Indian title did not accrue until 2000, after the United States acquired an

interest in the Valles Caldera and began interfering with the Jemez Pueblo’s access

to the land. Therefore, it argues, it has a current claim against the United States

under the QTA.

      We reverse and remand for further proceedings. This appeal is not about

whether the Jemez Pueblo holds aboriginal title. On remand, the Jemez Pueblo

will have to prove that it had, and still has, aboriginal title to the land at issue in

the case. This appeal concerns whether the 1860 Baca grant extinguished the

Jemez Pueblo’s alleged aboriginal title to the lands which are the subject of this

action. We hold it did not and the district court erred in concluding, as a matter of

law, that the 1860 Baca grant itself provided a pre-1946 claim against the United


       3
        Act of Aug. 13, 1946, ch. 959, Pub. L. No. 79-726, 60 Stat. 1049
(formerly codified as amended at 25 U.S.C. §§ 70 to 70n-2 (1976) (omitted from
current Code because the Indian Claims Commission (ICC) terminated on
September 30, 1978)).

                                           -4-
States the Jemez Pueblo could have brought under the ICCA. Accordingly, we

reverse the district court’s dismissal of this action for lack of subject matter

jurisdiction.

         We also decline the government’s alternative invitation to dismiss the action

for failure to state a claim under Rule 12(b)(6), an issue the district court did not

address. We are not persuaded the Complaint fails as a matter of law to state a

claim.

         On remand, the Jemez Pueblo will have the burden to establish, as a matter

of fact, that it has aboriginal title. In so doing, it will also necessarily be

establishing that it did not have a pre-1946 claim against the United States for

permitting interference with its aboriginal title.



                                             I

                                     BACKGROUND

A. The Jemez Pueblo

         The following facts are taken directly from the Complaint, which we accept

as true and view in the light most favorable to the plaintiff. See Casanova v.

Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (Rule 12(b)(6)); Holt v. United

States, 46 F.3d 1000, 1002 (10th Cir. 1995) (Rule 12(b)(1)). 4


         4
             A Rule 12(b)(1) motion “to dismiss for lack of subject matter jurisdiction
                                                                          (continued...)

                                            -5-
      The ancestral Jemez people have used and occupied the lands of the Valles

Caldera National Preserve and the surrounding areas in the Jemez Mountains of

New Mexico since at least 1200 CE. 5 The ancestral Jemez, whose descendants

comprise the modern Jemez Pueblo, a federally recognized tribe, have for more

than 800 years been the predominant and primary occupants and land users of the

Jemez Mountains, including the Valles Caldera National Preserve and the greater

Rio Jemez watershed. The Valles Caldera is a dormant crater of a supervolcano

located at the center of the Jemez Mountains. The crater rim itself is twenty miles

in diameter and is surrounded by four high-mountain valleys and eleven resurgent

volcanic domes. The crater rim, high-mountain valleys, and volcanic domes are

      4
       (...continued)
take[s] two forms:” either a “facial” or a “factual” attack. Holt, 46 F.3d at 1002.
A “facial attack on the complaint’s allegations as to subject matter jurisdiction
questions the sufficiency of the complaint,” and in reviewing a facial attack “a
district court must accept the allegations in the complaint as true.” Id. In
reviewing a factual attack, “a party may go beyond allegations contained in the
complaint and challenge the facts upon which subject matter jurisdiction
depends,” which does not allow a reviewing court to “presume the truthfulness of
the complaint’s factual allegations.” Id. at 1003. Instead, it gives the court “wide
discretion to allow affidavits, other documents, and a limited evidentiary hearing
to resolve disputed jurisdictional facts.” Id. Here, the district court accepted the
allegations in the Complaint as true and did not hold an evidentiary hearing. We
therefore also accept as true the factual allegations of the Complaint.
          5
        CE stands for “of the common era.” Chicago Manual of Style 468 (16th
ed. 2010). Using the Common Era is an alternative way of expressing the concept
denoted by AD and is used as a “neutral” chronological term that is “not
specifically anchored in Christianity and therefore sensitive to all and any of the
world’s religions and belief systems.” Macmillan Dictionary,
http://www.macmillandictionary.com/us/buzzword/entries/common-era.html (last
visited January 21, 2015).

                                        -6-
located within the exterior boundaries of the Valles Caldera National Preserve.

      The Jemez Pueblo is made up of the ancestral Jemez populations of Towa-

speaking pueblos, including the Pecos Pueblo and the Jemez Pueblo village of

Walatowa. The ancestral Jemez Pueblo’s aboriginal title allegedly included the

Rio Jemez drainage and the Valles Caldera, an area known to the Pueblo Jemez as

the “western Jemez homeland.” 6 Aplt. App. at 9 ¶ 17. The western Jemez

homeland includes a portion of the land at issue in this case within the Valles

Caldera National Preserve and covers an area of more than 1,100 square miles in

and around the Jemez Mountains. It includes the entire Rio Jemez drainage system

above Walatowa, the modern Jemez Pueblo village, and sections of the Rio Puerco

drainage west of the Jemez Mountains.

      The western Jemez homeland contains ancestral Jemez Pueblo villages,

sacred areas, and ceremonial shrines where the ancestral Jemez have lived since

migrating from the mesa and canyon country to the northwest prior to 1200 CE.

The Jemez Pueblo’s oral history refers to the area to the northwest and describes

the great southern migration to its western Jemez homeland. Archeological

investigations in the western homeland have found at least sixty pueblo villages

linked with a network of trails and many thousand farmhouse sites, agricultural



       6
       In its Complaint, the Jemez Pueblo explains that references to the
“‘western Jemez homeland’ . . . are synonymous with references to the ‘Jemez
Pueblo aboriginal Indian title area.’” Aplt. App. at 9 ¶ 18.

                                        -7-
fields, ceremonial sites, sacred areas, mineral procurement areas, camp sites, and

other areas associated with the ancestral Jemez. The ancestral Jemez population in

the western homeland has ranged from about 10,000 to 15,000 during the

prehistoric period and from 7,000 to 10,000 during the Spanish colonial period.

      The ancestral Jemez maintained an extensive network of agriculture and

farming practices in the Valles Caldera and Jemez Mountains. The Valles Caldera

contains many important sacred areas and religious sites of the traditional

ancestral Jemez culture and the area is greatly valued by the Jemez Pueblo as a

spiritual sanctuary. The ceremonial sites and gathering areas are still actively used

by the Jemez Pueblo today and are crucial to the continuing survival of traditional

Jemez Pueblo culture and religion. Ancient religious pilgrimage trails link

Walatowa to sites within the Valles Caldera, including Redondo Peak and sacred

springs, and the Jemez Pueblo members continue to make religious pilgrimages to

these sites to leave prayer offerings and conduct rituals. The Jemez Pueblo hunt

societies make lengthy visits to the Valles Caldera to hunt and conduct religious

ceremonies and initiations of new members. Moreover, the mineral and hot

springs within the Valles Caldera are used by the Jemez Pueblo’s medical societies

for healing.

      The Jemez continue to rely on the Valles Caldera for many critical

resources, as they have done for more than 800 years, including the land and water

for livestock; plants and animals on the land for subsistence living; timber for

                                         -8-
construction and firewood; mountain and forest shelter from the elements; plants,

herbs, and roots for medicine; aspen and willow for drums and ritual objects; oak,

cherry, and mahogany for bows and ritual objects; rosewood, plums, and reeds for

arrows; obsidian and chert for stone tools; minerals for paint and pigments; spring

water and evergreens for ceremonial rites; large and small game for ceremonial

use; and feathers for ceremonial use and for arrows. The Jemez Pueblo alleges

that by this native occupancy and use it has established aboriginal title to the lands

at issue in the Valles Caldera National Preserve.

      The Jemez Pueblo acknowledges that Congress enacted legislation in 1860

authorizing the Baca heirs to select up to five square tracts of vacant land totaling

up to 496,447 acres anywhere within the Territory of New Mexico in order to

settle a Mexican land grant dispute with the town of Las Vegas. An Act to

confirm Private Land Claims in the Territory of New Mexico of June 21, 1860,

Pub. L. No. 36-197, 12 Stat. 71 (1860 Act). The Baca heirs’ first selection, Baca

Location No. 1, included approximately 99,289 acres of land in and adjacent to the

Valles Caldera, which was subsequently confirmed by both the Surveyor General’s

Office and the federal land department without notice to the Jemez Pueblo. Aplt.

App. at 17.

      Notwithstanding a determination by the Surveyor General of New Mexico

that the land was “vacant,” the Jemez Pueblo alleges the lands included in the

Baca Location No. 1 were “exclusively possessed, used and occupied by Jemez

                                          -9-
Pueblo pursuant to the Pueblo’s aboriginal Indian title,” id. at 18 ¶ 82, and that the

“Baca heirs received these lands subject to the continuing aboriginal Indian title of

Jemez Pueblo,” id. at 18 ¶ 83. Moreover, the Jemez Pueblo alleges that it

continued to use and occupy the Valles Caldera for traditional purposes without

any opposition or interference from the Baca family.

      In 2000, pursuant to the Valles Caldera Preservation Act of 2000

(Preservation Act), Pub. L. No. 106-248, § 102, 114 Stat. 598, codified at 16

U.S.C. §§ 698v to 698v-10, 7 the United States purchased the property interests of

the Baca heirs’ successors in interest – the Dunnigan family – in approximately

94,761 acres of the land in the Baca Location No. 1 in order to establish the Valles

Caldera National Preserve. The Jemez Pueblo alleges that the United States

purchased this property interest subject to its continuing aboriginal Indian title,

and that shortly thereafter the government began limiting the Jemez Pueblo’s

access to the land.

B. Procedural History

      The Jemez Pueblo filed suit under the QTA, 28 U.S.C. § 2409a, to quiet title

to its interest in the lands of the Valles Caldera National Preserve. The

government filed a motion to dismiss, essentially arguing the district court lacked



       7
       The Preservation Act has been repealed and replaced by the National
Defense Authorization Act of 2015, Pub. L. No. 113-291, § 3043, 128 Stat. 3292,
3798.

                                         -10-
subject matter jurisdiction because the Jemez Pueblo’s claim accrued prior to 1946

and was therefore barred by the ICCA’s five year statute of limitations. In

response, the Jemez Pueblo contended that its aboriginal title was not extinguished

by the Baca grant, and that its quiet title claim arose only when the United States

began to interfere with and limit its use of the land in 2000. Accordingly, it

contended, the QTA is applicable and the district court has jurisdiction to hear the

case.

        The district court granted the government’s motion to dismiss, relying

primarily on Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455 (10th Cir.

1987), to conclude that it lacked subject matter jurisdiction. Specifically, it held

the Jemez Pueblo had a claim against the United States that accrued as a matter of

law before 1946, and therefore its sole remedy was to have brought an action

before the ICC before the claim became barred by the statute of limitations. It

further concluded that the Jemez Pueblo was required by § 22 of the ICCA to

litigate this claim in its prior ICC proceedings when it sought compensation and

received money for a taking and extinguishment of aboriginal title to other Jemez

lands. 8 Accordingly, the district court held the Jemez Pueblo’s QTA action was

barred by sovereign immunity.


        8
        See Pueblo of Zia v. United States, 474 F.2d 639, 641 (Ct. Cl. 1973) (Zia
IV); see also Pueblo of Zia, et al v. United States (Zia I), 11 Ind. Cl. Comm. 131
(1962); Pueblo of Zia v. United States, 165 Ct. Cl. 501 (1964) (Zia II); Pueblo of
Zia v. United States, 19 Ind. Cl. Comm. 56 (1968) (Zia III).

                                         -11-
C. Arguments on appeal

      The Jemez Pueblo contends it continues to hold aboriginal title to the land

within the Valles Caldera National Preserve, which includes the Baca Location

No. 1, because neither the land transfer to the Baca heirs in 1860 nor the United

States’ purchase of the land in 2000 extinguished its aboriginal title. The district

court therefore erred in concluding the ICCA barred its claim and in failing to

exercise jurisdiction over the claim under the QTA’s sovereign immunity waiver.

The government responds that the district court correctly held pursuant to Rule

12(b)(1) that it lacks subject matter jurisdiction under the QTA because the Jemez

Pueblo’s claim is barred by §§ 12 and 22 of the ICCA and is foreclosed by our

decision in Navajo, 809 F.2d 1455. The government argues alternatively that the

Complaint fails to state a claim under Rule 12(b)(6).



                                          II

                   STANDARD OF REVIEW AND THE ICCA

      Federal Rules of Civil Procedure 12(b)(1) allows a court to dismiss a

complaint for lack of subject matter jurisdiction. If the district court did so

without taking evidence, as the court did here, our review is de novo. Becker v.

Ute Indian Tribe of the Uintah and Ouray Reservation, 770 F.3d 944, 946 (10th

Cir. 2014).

      “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that

                                         -12-
power authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059,

1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994)). To be sure, “[f]ederal subject matter jurisdiction is elemental . . . and

its presence must be established in every cause under review in the federal courts.”

Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1022 (10th Cir. 2012).

“Indeed, ‘[i]t is to be presumed that a cause lies outside this limited jurisdiction,

and the burden of establishing the contrary rests upon the party asserting

jurisdiction.’” Becker, 770 F.3d at 947 (quoting Kokkonen, 511 U.S. at 377); see

also Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994) (“If jurisdiction is

challenged, the burden is on the party claiming jurisdiction to show it by a

preponderance of the evidence.”). “A court lacking jurisdiction cannot render

judgment but must dismiss the cause at any stage of the proceedings in which it

becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius,

709 F.3d 1012, 1016 (10th Cir. 2013).

      The district court ruled that sovereign immunity barred the Jemez Pueblo’s

claim. “The concept of sovereign immunity means that the United States cannot

be sued without its consent.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Jacks, 960 F.2d 911, 913 (10th Cir. 1992). “The defense of sovereign immunity is

jurisdictional in nature, depriving courts of subject-matter jurisdiction where

applicable.” Normandy Apartments, Ltd. v. United States Dep’t of Hous. & Urban

Dev., 554 F.3d 1290, 1295 (10th Cir. 2009). Thus, “[b]ecause general

                                          -13-
jurisdictional statutes, such as 28 U.S.C. § 1331, do not waive the Government’s

sovereign immunity, a party seeking to assert a claim against the government

under such a statute must also point to a specific waiver of immunity in order to

establish jurisdiction.” Id. Consequently, the Jemez Pueblo may not “proceed

without establishing that the United States has agreed to answer to [its] claims in

court.” See Sydnes v. United States, 523 F.3d 1179, 1182-83 (10th Cir. 2008).

      The Jemez Pueblo contends the United States has waived sovereign

immunity in this case under the QTA, 28 U.S.C. § 2409a, which provides in

relevant part: “The United States may be named as a party defendant in a civil

action under this section to adjudicate a disputed title to real property in which the

United States claims an interest.” The QTA contains a twelve year statute of

limitations in which a party other than a state is barred from filing suit unless “it is

commenced within twelve years of the date upon which it accrued.” § 2409a(g).

An action under the QTA accrues when the party “knew or should have known of

the claim of the United States.” Id. It is undisputed, and the government

concedes, that the Jemez Pueblo filed this quiet title action within twelve years of

when, according to the Pueblo, the claim accrued. That is, the Jemez Pueblo

contends its claim accrued only when the United States acquired an interest in the

Valles Caldera in 2000 and began limiting the Jemez Pueblo’s access to the land in

a manner inconsistent with its aboriginal title. The government counters that the

ICCA is a jurisdictional bar to the Jemez Pueblo’s claim because the Jemez Pueblo

                                          -14-
had a pre-1946 claim against the United States regarding its aboriginal title to this

land, which became barred when it failed to file suit within the five year statute of

limitation period.

      Until Congress enacted the ICCA in 1946, Pub. L. No. 79-726, 60 Stat.

1049, Indian tribes were not permitted to litigate claims “against the federal

government without express congressional authorization.” Oglala Sioux Tribe of

Pine Ridge Indian Reservation v. United States Corps of Eng’rs, 570 F.3d 327,

331 (D.C. Cir. 2009); Navajo, 809 F.2d at 1460. To sue the government, Indian

tribes had to petition Congress “for special jurisdictional acts authorizing the

[Court of Claims] to hear their grievances against the United States; yet few of

them succeeded,” and “[f]or those who did succeed, the process was costly,

burdensome, and time-consuming.” Navajo, 809 F.2d at 1460.

      As a result, Congress enacted the ICCA in 1946, which created the Indian

Claims Commission, “a quasi-judicial body to hear and determine all tribal claims

against the United States that accrued before August 13, 1946.” 9 Id.; ICCA § 2, 60

Stat. 1050. The ICCA imposed a five year statute of limitations period “on Indian

claims in law and equity then existing and arising under the Constitution, federal

law, and treaties between Indian tribes and the United States.” Oglala Sioux


       9
        While the ICC was initially established in 1863 to hear claims against the
United States, Act of March 3, 1863, ch. 92, § 9, 12 Stat. 757, 767, its jurisdiction
included only Indian claims based on treaty. Sovereign immunity barred non-
treaty claims.

                                         -15-
Tribe, 570 F.3d at 331; ICCA § 12. “Congress deliberately used broad

terminology in the Act in order to permit tribes to bring all potential historical

claims and to thereby prevent them from returning to Congress to lobby for further

redress.” Oglala Sioux Tribe, 570 F.3d at 331. But the ICCA only “bars claims

involving allotments or other property, claims involving title, claims to equitable

relief, claims for damages, and related constitutional and procedural claims that

accrued before 1946 and were not brought by August 13, 1951.” Id. at 331-32.

(emphasis added).

      Before turning to the applicable legal standards and addressing the parties’

arguments, an explanation of the history and legal concepts that govern aboriginal

title and Indian land is necessary to understand the nature of the claims and to

place in proper perspective the contested historical facts advanced by the parties.

This history includes Supreme Court decisions and several 19th and 20th century

developments between Spain, Mexico, and the United States.



                                          III

        THE HISTORY OF INDIAN LAW AND ABORIGINAL TITLE

      The problem of recognizing possessory rights claimed by Indians has

engaged the attention of jurists since European settlement of the Americas. In

fact, the decisions concerning Indian law and aboriginal title cannot be understood

without recognizing that the “dealings between the Federal Government and the

                                         -16-
Indian Tribes have regularly been handled as part of our international relations.”

Cohen, supra at 43. The main concepts of aboriginal title can be traced back to

“Spanish origins, and particularly to doctrines developed by Francisco de Victoria,

the real founder of modern international law.” Id. at 44. The doctrine of Victoria

essentially proposed that discovery of new lands gave “title to lands not already

possessed,” but because the “Indians were true owners, both from the public and

the private standpoint, the discovery of them by the Spanish had no more effect on

their property than the discovery of the Spaniards by the Indians had on Spanish

property.” Id. at 45.

      Pope Paul III provided support for the doctrine of Victoria in 1537 when he

said that “Indians are truly men” and that “Indians and all other people who may

later be discovered by Christians, are by no means to be deprived of their liberty

or the possession of their property.” Id. (internal quotation marks omitted). This

declaration of human rights was affirmed by the United States in the Northwest

Ordinance of July 13, 1787, “the first important law of the United States on Indian

relations, . . . adopted two years before the Federal Constitution.” Id. The

Northwest Ordinance declared our national policy towards Indians, stating:

      The utmost good faith shall always be observed towards the Indians;
      their land and property shall never be taken from them without their
      consent; and in their property, rights and liberty, they never shall be
      invaded or disturbed, unless in just and lawful wars authorized by
      Congress; but laws founded in justice and humanity shall from time to
      time be made, for preventing wrongs being done to them, and for
      preserving peace and friendship with them.

                                        -17-
Id. at 41.

       Just as the doctrine of respect for Indian possession first proposed by

Victoria “became the guiding principle of Spain’s Laws of the Indies,” so too

would the “promise of the Northwest Ordinance” become “the guiding principle of

our Federal Indian Law.” Id. at 45. Yet, before the Supreme Court’s first

important case concerning aboriginal title was decided, see Johnson v. M’Intosh,

21 U.S. 543 (1823), several historical events between Spain and Mexico took place

that would impact the relationship between the pueblos and the United States

Government.

A. Spain and Mexican Independence (1821)

       In 1821, the Mexican revolutionary government adopted the Plan of Iguala,

a revolutionary proclamation, in the final stage of the Mexican War of

Independence from Spain. It declared that “[a]ll inhabitants of New Spain,

without any distinction between Europeans, Africans, or Indians, are citizens of

this Monarchy . . . and that the person and property of every citizen will be

respected and protected by the government.” United States v. Ritchie, 58 U.S.

525, 538 (1854) (quoting Plan of Iguala) (internal quotation marks omitted); see

also Susan Scafidi, Native Americans and Civic Identity in Alta California, 75

N.D. L. Rev. 423, 432 (1999).

       The Treaty of Cordova between Spain and Mexico, ratified on August 24,

1821, adopted the principles set forth in the Plan of Iguala and established

                                         -18-
Mexican Independence. See Ritchie, 58 U.S. at 538; Placido Gomez, The History

and Adjudication of the Common Lands of Spanish and Mexican Land Grants, 25

Nat. Resources J. 1039, 1059 (1985). Specifically, sections six, seven, and twelve

created a provisional government which was to govern according to existing laws,

so long as they were not contrary to the Plan of Iguala. See Ritchie, 58 U.S. at

538; Zia I, 11 Ind. Cl. Comm. at 133. The Mexican declaration of independence,

issued on September 28, 1821, reaffirmed the principles of the Plan of Iguala. Zia

I, 11 Ind. Cl. Comm. at 133. Three laws passed by the first Mexican congress in

1822 and 1823 also reaffirmed the principles of the Plan of Iguala, including

independence, the Catholic religion, and equality of all Mexicans regardless of

race. Ritchie, 58 U.S. at 538-39.

B. Aboriginal Title and the Sovereign (1823)

      In Johnson v. M’Intosh, 21 U.S. at 572, the Supreme Court first addressed

Indian aboriginal right of occupancy and possession as against the sovereign.

Plaintiffs in Johnson claimed land under a grant by the chiefs of the Illinois and

Plankenshaw Nations, forcing the Court to ask “whether this title can be

recognised in the Courts of the United States?” Id. In holding “that a private land

sale of Indian land not consented to by the sovereign gave the purchaser no valid

title against the sovereign,” Cohen, supra at 47, the Court explained the

possessory right of occupancy held by the Indians:

      [T]he rights of the original inhabitants were, in no instance, entirely

                                        -19-
      disregarded; but were necessarily, to a considerable extent, impaired.
      [Indians] were admitted to be the rightful occupants of the soil, with a
      legal as well as just claim to retain possession of it, and to use it
      according to their own discretion; but their rights to complete
      sovereignty, as independent nations, were necessarily diminished, and
      their power to dispose of the soil at their own will, to whomsoever
      they pleased, was denied by the original fundamental principle, that
      discovery gave exclusive title to those who made it.

Johnson, 21 U.S. at 574.

      Thus, although “the different nations of Europe respected the right of the

natives, as occupants, they asserted the ultimate dominion to be in themselves; and

claimed and exercised, as a consequence of this ultimate dominion, a power to

grant the soil, while yet in possession of the natives.” Id. In other words,

although the Indians had rights to the lands, fee title to the land resided in the

sovereign. Most significantly for our purposes, however, is the Court’s holding

that “[t]hese grants [by the sovereign] have been understood by all, to convey a

title to the grantees, subject only to the Indian right of occupancy.” Id. (emphasis

added). What that meant was clarified by later cases.

C. Aboriginal Title Against States and Colonies (1832)

      Likely the second most important case in the development of Indian law is

Chief Justice Marshall’s opinion in Worcester v. Georgia, 31 U.S. 515 (1832),

where the land at issue was in the possession of the Cherokee Indians.

Recognizing the sovereignty of the Cherokee Nation and its relationship with the

United States established through treaties, the Court held that Georgia could not


                                          -20-
exercise jurisdiction over activities occurring on Indian land. Id. at 561. In so

doing, the Court made clear that the idea of sovereign discovery and all that it

entailed was not inconsistent with aboriginal title. The Court explained the

sovereign right of discovery as follows:

      This principle, acknowledged by all Europeans, because it was the
      interest of all to acknowledge it, gave to the nation making the
      discovery, as its inevitable consequence, the sole right of acquiring
      the soil and making settlements out of it. It was an exclusive
      principle which shut out the right of competition among those who
      had agreed to it; not one which could annul the previous rights of
      those who had not agreed to it. It regulated the right given by
      discovery among the European discoverers; but could not affect the
      rights of those already in possession, either as aboriginal occupants,
      or as occupants by virtue of a discovery made before the memory of
      man.

Worcester, 31 U.S. at 544 (emphasis added).

      The Court in Worcester explained that Georgia was chartered by Britain to

enable its subjects to settle there but that the charter did not purport to grant title

to the land in possession of the natives. Id. at 544-56.

      The general views of Great Britain, with regard to the Indians were
      detailed by Mr. Stuart, superintendent of Indian affairs in a speech
      delivered at Mobile, in presence of several persons of distinction,
      soon after the peace of 1763. Towards the conclusion he says, ‘lastly,
      I inform you that it is the king’s order to all his governors and
      subjects, to treat Indians with justice and humanity, and to forbear all
      encroachments on the territories allotted to them.

Id. at 544-46. Worcester thus clarified the proposition suggested in Johnson v.

M’Intosh that a grant to third parties by the sovereign of land in possession of the

Indians and which they presently occupied did not extinguish their aboriginal title.

                                           -21-
Cohen, supra at 49-50.

D. The Scope and Transferability of Aboriginal Title (1835)

      In Mitchel v. United States, 34 U.S. 711, 716 (1835), the Court addressed an

issue relating to land in Florida granted to private parties by Creek and Seminole

Indians in 1804 and 1806. The private individuals claimed their title under deeds

from the Indians that had been confirmed by Spain prior to Spain ceding Florida to

the United States by treaty. In explaining “the nature and extent of Indian title to

[the] lands,” id. at 745, the Court set forth how those rights were viewed by the

British, who had governed Florida for twenty years from 1763 to 1783:

      One uniform rule seems to have prevailed from their first settlement,
      as appears by their laws; that friendly Indians were protected in the
      possession of the lands they occupied, and were considered as owning
      them by a perpetual right of possession in the tribe or nation
      inhabiting them, as their common property, from generation to
      generation, as the right of individuals located on particular spots.

            Subject to this right of possession, the ultimate fee was in the
      crown and its grantees, which could be granted by the crown or
      colonial legislatures while the lands remained in possession of the
      Indians, though possession could not be taken without their consent.

             ....

      The merits of this case do not make it necessary to inquire whether
      the Indians within the United States had any other rights of soil or
      jurisdiction; it is enough to consider it as a settled principle, that
      their right of occupancy is considered as sacred as the fee simple of
      the whites.

Id. at 745-46 (emphases added). The Indian sale of property in Mitchel had

occurred with the consent of Spain, the sovereign at the time. “What had been

                                        -22-
conceded, by way of dictum, in Johnson v. M’Intosh, namely that Indian title

included power to transfer as well as to occupy, is the core of the decision in the

Mitchel case.” Cohen, supra at 50.

      Most importantly for our case, Mitchel established a significant point in the

doctrine of aboriginal title by expressly rejecting the idea that “possession”

extends only to improved lands.

      Indian possession or occupation was considered with reference to
      their habits and modes of life; their hunting grounds were as much in
      their actual possession as the cleared fields of the whites; and their
      rights to its exclusive enjoyment in their own way and from their own
      purposes were as much respected, until they abandoned them, made a
      cession to the government, or an authorized sale to individuals.

Mitchel, 34 U.S. at 745 (emphasis added). See also Cohen’s Handbook of Federal

Indian Laws, § 18.01, at 1154-55 (Nell Jessup Newton ed., 2012) [hereinafter

Cohen’s Handbook]. This describes the very nature of aboriginal title – that it

covers lands used by the Indians in their daily lives as hunters and gatherers as

well as lands on which they actually resided.

E. The Treaty of Guadalupe Hidalgo, February 2, 1848

      As the above cases make clear, the nature of Indian title in the United States

was established before the country acquired what would become much of the

southwest and west of the United States. In 1848, “[t]he Treaty of Guadalupe

Hidalgo ended the war between the United States and Mexico, designated the Rio

Grande as the Texas border, reduced the size of Mexico by more than half, and


                                         -23-
doubled the territory of the United States, including parts of present-day Arizona,

California, New Mexico, Texas, Colorado, Nevada, and Utah.” Robert J.

McCarthy, Executive Authority, Adaptive Treaty Interpretation, and the

International Boundary and Water Commission, U.S.–Mexico, U. Denv. Water L.

Rev. 197, 209 (2011). In Article VIII of the Treaty, the United States agreed to

respect pre-existing property rights of all Mexican citizens, which included the

Indians living within the territory covered by the Treaty. Treaty of Guadalupe

Hidalgo, U.S.-Mex., Feb. 2, 1848, 9 Stat. 922, 928. The government concedes this

much in its brief on appeal. Aple. Br. at 7-8. Read together with section twelve

and thirteen of the Plan of Iguala, the Treaty of Cordova, the Mexican declaration

of Independence, and the several acts of the first Mexican Congress implementing

the Plan of Iguala, supra at 18-19, Article VIII of the Treaty between Mexico and

the United States effectively recognized the then-existing property rights of the

pueblo Indians. 9 Stat. at 928. See Cohen’s Handbook, § 4.0[9], at 311.

F. Establishment of the office of Surveyor General of New Mexico, . . . and
for other purposes, 10 Stat. 308 (July 22, 1854)

      In 1854, Congress established the office of the Surveyor General for New

Mexico and ordered him “to ascertain the origin, nature, character, and extent of

all claims to lands under the laws, usages, and customs of Spain and Mexico;” and

to make a full report on the validity of the claims that “originated before the

cession of the territory to the United States by the treaty of Guadalupe Hidalgo,


                                        -24-
. . . denoting the various grades of title, with his decision as to the validity or

invalidity of each of the same under the laws, usages, and customs of the country

before its cession to the United States.” § 8, 10 Stat. at 309. Further, the

Surveyor General was tasked with making “a report in regard to all pueblos

existing in the Territory, showing the extent and locality of each, stating the

number of inhabitants in the said pueblos, respectively, and the nature of their

titles to the land.” Id. The Jemez Pueblo acknowledges this in its Complaint.

G. An Act to confirm certain Private Land Claims in the Territory of New
Mexico, 12 Stat. 71 (June 21, 1860)

      The 1860 Act is the precursor to the establishment of Baca Location No. 1,

the Baca ranch, which was created on lands the Jemez Pueblo claims in this case

as part of its aboriginal land. In this Act, Congress settled a Mexican land grant

dispute between the town of Las Vegas and the Baca heirs by allowing the town to

retain title over the contested land and authorizing the Baca heirs “to select instead

of the land claimed by them, an equal quantity of vacant land, not mineral, in the

Territory of New Mexico, to be located by them in Square bodies, not exceeding

five in number.” Id. § 6, 12 Stat. at 72. Section 6 further stated that “it shall be

the duty of the Surveyor General of New Mexico, to make survey and location of

the lands so selected by said heirs of Baca when thereunto required by them;

Provided, however, That the right hereby granted to said heirs of Baca shall

continue in force during three years from the passage of this act, and no longer.”


                                           -25-
      The Supreme Court explained in Shaw v. Kellogg, 170 U.S. 312 (1898), how

the Baca heirs gained title to one of the parcels of land they were authorized by

the 1860 Act to select:

      Congress, in 1860, made a grant of a certain number of acres,
      authorized the grantees to select the land within three years anywhere
      in the territory of New Mexico, directed the surveyor general of that
      territory to make survey and location of the land selected, thus casting
      upon that officer the primary duty of deciding whether the land
      selected was such as the grantees might select. They selected this
      track [Baca Location No. 3]. Obeying the statute and the instructions
      issued by the land department, that officer approved the selection, and
      made the survey and location. The land department . . . finally
      directed him to close up the matter, to approve the field notes, survey,
      and plat, and notified the parties through him that such field notes,
      survey, and plat, together with the act of congress should constitute
      the evidence of title. All was done as directed. Congress made no
      provision for a patent, and the land department refused to issue one.
      All having been done that was prescribed by the statute, the title
      passed.

Id. at 342-43 (emphasis added). Accordingly, once the Surveyor General

performed the prescribed duties and the land office approved the selection, title

passed to the Baca heirs. 10

      In the 1860 Act, Congress also confirmed, on the recommendation of the

Surveyor General, several other private land claims in the Territory of New

Mexico arising under the Treaty of Guadalupe Hildago. Notably, the Act declared

in section 4 “[t]hat the foregoing confirmation shall only be construed as quit-


       10
         The Baca heirs gained title to Baca Location No. 1, the land involved in
this case, in similar fashion. See United States v. Redondo Development Co., 254
F. 656, 657-58 (8th Cir. 1918).

                                        -26-
claims or relinquishments, on the part of the United States, and shall not affect the

adverse rights of any other person or persons whomsover.” 1860 Act, 12 Stat. at

71-72 (emphasis added). The effect of this statute and subsequent actions of the

Surveyor General on the Jemez Pueblo’s aboriginal title are the central issues in

this appeal with respect to whether the Jemez had a pre-1946 claim against the

United States.

H. Aboriginal Title and the Railroads (1886)

        After the 1860 Act, the Court continued to recognize the validity of

aboriginal right of occupancy as against grants made by the United States in the

absence of explicit extinguishment of Indian title. In Buttz v. Northern Pacific

Railroad, 119 U.S. 55, 66-73 (1886), the Court applied the rules announced in

Johnson and Worcester to a grant of land for the building of transcontinental

railroads that needed access across Indian lands. The railroad claimed title to the

land at issue under a grant made by Congress. The Court held that the Indians

retained their aboriginal title notwithstanding the grant of fee title to someone

else:

        The land in controversy, and other lands in Dakota, through which the
        Northern Pacific Railroad was to be constructed, was within what is
        known as Indian Country. At the time the act of July 2, 1864, was
        passed, the title of the Indian tribes was not extinguished. But that
        fact did not prevent the grant of congress from operating to pass the
        fee of the land to the company. The fee was in the United States. The
        Indians had merely a right of occupancy, – a right to use the land
        subject to dominion and contr[o]l of the government. The grant
        conveyed the fee subject to this right of occupancy. The railroad

                                         -27-
       company took the property with this incumbrance. The right of the
       Indians, it is true, could not be interfered with or determined except
       by the United States . . . The right of the United States to dispose of
       the fee of lands occupied by [the Indians] has always been recognized
       by this court from the foundation of the government.

Id. at 66-67 (emphasis added).

       Buttz stands for the proposition that although grants by the United States of

land in possession of the Indians conveys fee title, the grant does not impair

aboriginal title, which the grantee must respect until aboriginal title has been

extinguished by treaty, agreement, or other authorized actions of the Indians or

Congress. Cohen, supra at 53. The Indian right of occupancy in 1864 that the

Court referenced in Buttz had not been defined by treaty between the Indians and

the United States. It was instead aboriginal land previously unrecognized by the

United States. 11

       Following Buttz, the Court in Cramer v. United States, 261 U.S. 219, 224-

25, 230 (1923), continued to protect and respect aboriginal title, holding that it

was excluded from the grant in question. There the Act of July 25, 1866, 14 Stat.

239, “granted to the predecessor of the defendant company a series of odd-

numbered sections of land, including those named, but excepted from the grant

such lands as shall be found to have been granted, sold, reserved, occupied by



       11
         The Court would later reaffirm that a tribe’s aboriginal title does not
require an affirmative act of the sovereign for its continued viability. United
States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 347 (1941).

                                         -28-
homestead settlers, pre-empted or otherwise disposed of.” Cramer, 261 U.S. at

225 (internal quotation marks omitted). The question in Cramer concerned a land

patent issued in 1904 by the United States to Central Pacific Railway, which

included land covered by the 1866 Act. Id. at 224-35. In issuing the patent in

1904, the Department of Interior had assumed there was no reservation or other

encumbrance that would prevent passing full and clear title to the grantee. Cohen,

supra at 29. Cramer, the railroad’s assignee, contended the Department of the

Interior had determined that the Indians had no rights to the land, and that the

railroad had free and clear title and had leased the land from Cramer. Id. at 31.

      The Court rejected this argument, noting that the departmental action which

had disregarded aboriginal rights was unfounded: “The fact that such right of

[Indian] occupancy finds no recognition in any statute or other formal

governmental action is not conclusive. The right, under the circumstances here

disclosed, flows from settled governmental policy.” Cramer, 261 U.S. at 229.

That policy, the Court explained, “to respect the Indian right of occupancy, which

could only be interfered with or determined by the United States,” had

“unquestionably” been the federal government’s policy “from the beginning.” Id.

at 227. Read together, Buttz and Cramer stand for the proposition that aboriginal

title is not extinguished by a railroad grant, surviving as either an encumbrance

upon or an exception carved out of the grant.




                                         -29-
I. Pueblo Land as Indian Country

      In 1913, the Supreme Court in United States v. Sandoval, 231 U.S. 29

(1913), emphasized that the lands of the pueblos in New Mexico had long been

considered by the United States Congress as Indian Country, subject to the special

protection of the government.

      [I]t is not necessary to dwell specially upon the legal status of this
      people under either Spanish or Mexican rule, for whether Indian
      communities within the limits of the United States may be subjected
      to its guardianship and protection as dependent wards turns upon
      other considerations. Not only does the Constitution expressly
      authorize Congress to regulate commerce with the Indian tribes, but
      long continued legislative and executive usage and an unbroken
      current of judicial decisions have attributed to the United States a
      superior and civilized nation the power and the duty of exercising a
      fostering care and protection over all dependent Indian communities
      within its borders, whether within its original territory or territory
      subsequently acquired, and whether within or without the limits of a
      state.

Id. at 45-45 (citation omitted).

J. Aboriginal Title and Administrative Officials (1941)

      In United States v. Santa Fe Pacific Railroad Co., 314 U.S. at 343-44, the

United States, as guardians of the Walapai Tribe, brought suit to enjoin the

railroad from interfering with the possession and occupancy of the Indians of a

piece of land granted to the railroad’s predecessor by the Act of July 27, 1866, 14

Stat. 292. The land in question included lands both inside and outside the Walapai

reservation, established by the President’s Executive Order of January 4, 1883. Id.

The railroad argued it had full title to the lands in question under the grant of land

                                         -30-
provided for by the 1866 Act. Id. at 343. Section 2 of the Act stated: “The United

States shall extinguish, as rapidly as may be consistent with public policy and the

welfare of the Indians, and only by their voluntary cession, the Indian title to all

lands falling under the operation of this act and acquired in the donation to the

road named in the act.” Id. at 344.

      The Court held that if the “lands in question were the ancestral home of the

Walapais,” such that “occupancy constituted ‘Indian title’ within the meaning of

s[ection] 2 of the 1866 Act, which the United States agreed to extinguish” only by

the Indians “voluntary cession,” then in the “absence of such extinguishment the

grant to the railroad ‘conveyed the fee subject to this right of occupancy.’” Id. at

344-45 (quoting Buttz, 119 U.S. at 66). The Court reasoned:

      Unquestionably it has been the policy of the federal government from
      the beginning to respect the Indian right of occupancy, which could
      be interfered with or determined by the United States. Cramer v.
      United States, 261 U.S. 219, 227. This policy was first recognized in
      Johnson v. M’Intosh, 8 Wheat. 543; Mitchel v. United States, 9 Pet.
      711; Chouteau v. Molony, 16 How. 203; Holden v. Joy, 17 Wall. 211;
      Buttz v. Northern Pacific Railroad; United States v. Shoshone Tribe,
      304 U.S. 111. As stated in Mitchel v. United States, 9 Pet. at 746,
      Indian “right of occupancy is considered as sacred as the fee-simple
      of the whites.” Whatever may have been the rights of the Walapais
      under Spanish law[,] the Cramer case assumed that lands within the
      Mexican Cession were not excepted from the policy to respect Indian
      right of occupancy. Though the Cramer case involved the problem of
      individual Indian occupancy, this Court stated that such occupancy
      was not to be treated differently from “the original nomadic tribal
      occupancy.” 261 U.S. at 227. Perhaps the assumption that aboriginal
      possession would be respected in the Mexican Cession was like the
      generalizations in Johnson v. M’Intosh, not necessary for the narrow
      holding of the case. But such generalizations have been so often and

                                          -31-
      so long repeated as respects land under the prior sovereignty of the
      various European nations including Spain, that like other rules
      governing titles to property, they should now be considered no longer
      open. Furthermore treaties negotiated with Indian tribes, wholly or
      partially within the Mexican Cession, for delimitation of their
      occupancy rights or for the settlement and adjustment of their
      boundaries, constitute clear recognition that no different policy as
      respects aboriginal possession obtained in this area than in other
      areas. Certainly, it would take plain and unambiguous action to
      deprive the Walapais of the benefits of that policy. For it was
      founded on the desire to maintain just and peaceable relations with
      Indians. The reasons for its application to other tribes are no less
      apparent in the case of the Walapais, a savage tribe which in the early
      days caused the military no end of trouble.

Id. at 345-46 (emphases added) (footnotes omitted) (some citations omitted).

      The Court went on to discuss whether, in fact, the Walapai’s aboriginal title

had been extinguished. It made clear that “the exclusive right of the United States

to extinguish Indian title has never been doubted,” and that aboriginal title may be

extinguished “by treaty, by the sword, by purchase, by the exercise of complete

dominion adverse to the right of occupancy, or otherwise.” Id. at 347 (internal

quotation marks omitted). The Court explained why several different acts of

Congress and the creation of the Colorado River reservation had not extinguished

aboriginal title – namely, because the Court found no clear or plain indication that

Congress intended by those acts to extinguish aboriginal title. Id. at 347-356.

Notably, the Court said of the Surveyor General Act of 1854:

      [It] merely called for a report to Congress on certain land claims. If
      there was an extinguishment of the rights of the Walapais, it resulted
      not from the action of the Surveyor General but from the action of
      Congress based on his reports. We are not advised that Congress took

                                        -32-
      any such action.

Id. at 351.

      Ultimately, the Court held that the Walapai Indian Reservation established

by the President’s Executive Order in 1883 at the Walapai’s request had

extinguished the Tribe’s aboriginal title because “its creation at the request of the

Walapais and its acceptance by them amounted to a relinquishment of any tribal

claims to lands which they might have had outside that reservation and that that

relinquishment was tantamount to an extinguishment by ‘voluntary cession’ within

the meaning of s[ection] 2 of the Act of July 27, 1866.” Id. at 357-58 (footnote

omitted).

      While Sante Fe is important in the development of Indian law because it

reaffirmed principles first established in Johnson v. M’Intosh, reaffirmed that

aboriginal title is not determined by treaty, and applied the doctrine of aboriginal

title to the Mexican cession area, it is more important for yet another reason that is

directly relevant to the case before us. That is, the Court held that aboriginal

possession and occupancy of an Indian tribe “survived a course of congressional

legislation and administrative action that had proceeded on the assumption that the

area in question was unencumbered public land.” Cohen, supra at 56.

Accordingly, “the decision stands as a warning to purchasers of real property from

the Federal Government, reminding them that not even the Government can give

what it does not possess.” Id.

                                         -33-
      In light of this historical background, we turn to the issues on appeal.

                                            IV

                                     DISCUSSION

A. Subject Matter Jurisdiction

      This appeal raises two specific issues we must address for purposes of our

review of the district court’s dismissal of the action for lack of jurisdiction under

Fed. R. Civ. P. 12(b)(1). The central issue is whether the Jemez Pueblo had a

claim against the United States which, as a matter of law, accrued before August

13, 1946. 12 If it did, then the district court was correct in holding the claim barred


       12
            The ICCA defined claims as follows:
                Sec. 2. The Commission shall hear and determine the
                following claims against the United States on behalf of
                any Indian tribe, band or other identifiable group of
                American Indians residing within the territorial limits of
                the United States or Alaska: (1) claims in law or equity
                arising under the Constitution, laws, treaties of the
                United States, and Executive orders of the President; (2)
                all other claims in law or equity, including those
                sounding in tort, with respect to which the claimant
                would have been entitled to sue in a court of the United
                States if the United States was subject to suit; (3) claims
                which would result if the treaties, contracts, and
                agreements between the claimant and the United States
                were revised on the ground of fraud, duress,
                unconscionable consideration, mutual or unilateral
                mistake, whether of law or fact, or any other ground
                cognizable by a court of equity; (4) claims arising from
                the taking by the United States, whether as the result of
                a treaty of cession or otherwise, of lands owned or
                occupied by the claimant without the payment for such
                                                                           (continued...)

                                           -34-
by ICCA § 12 and concluding that it lacked subject matter jurisdiction. If we

cannot determine as a matter of law that there was a pre-1946 claim against the

government, then the claim is not facially barred by § 12 of the ICCA. 13 In that

event, we must determine alternatively whether compensation paid to the Jemez

Pueblo in prior litigation before the ICC forecloses this claim under the ICCA

§ 22.

        The government first argues that the Baca grant made pursuant to the 1860

Act extinguished, or was at least inconsistent with, the Jemez Pueblo’s aboriginal

title such that a claim against the United States arose before 1946. It contends the

Surveyor General’s conclusion that the lands were “vacant” when it approved the

Baca grant was “sufficiently inconsistent with the Jemez Pueblo’s claim to

aboriginal title for a cause of action to accrue for the purposes of the ICCA.”

Aple. Br. at 25. The government relies primarily on Navajo, 809 F.2d 1455, in

maintaining that the Jemez Pueblo’s claim is time barred by ICCA § 12.


        12
             (...continued)
                   lands of compensation agreed to by the claimant; and (5)
                   claims based upon fair and honorable dealings that are
                   not recognized by any existing rule of law or equity.
         13
              Section 12 of the ICCA provides in full:
                  The Commission shall receive claims for a period of five
                  years after the date of the approval of this Act and no
                  claim existing before such date but not presented within
                  such period may thereafter be submitted to any court or
                  administrative agency for consideration, nor will such
                  claim thereafter be entertained by Congress.

                                            -35-
      We first note that “the rule of construction recognized without exception for

over a century has been” that if there is doubt whether aboriginal title has been

validly extinguished by the United States, any “doubtful expressions, instead of

being resolved in favor of the United States, are to be resolved in favor of” the

Indians. Santa Fe, 314 U.S. at 354 (internal quotation marks omitted). It is

against this backdrop and the history of Indian law we have set out above that we

address the government’s arguments.

      1. 1860 Baca grant and our decision in Navajo

      The government’s arguments ignore the nature of aboriginal title and the

last 200 years of Supreme Court jurisprudence. The Court has repeatedly held the

Indian “right of occupancy is considered as sacred as the fee-simple of the

whites,” Santa Fe, 314 U.S. at 345 (quoting Mitchel, 34 U.S. at 716), and that this

right of occupancy may only be extinguished by Congress’s “plain and

unambiguous” intent, which will not be “lightly implied,” id. at 346, 354. As far

back as Johnson v. M’Intosh, the Court held that although the sovereign has the

power to grant to third parties fee title to lands occupied by Indians, “[t]hese

grants have been understood by all, to convey a title to the grantees, subject only

to the Indian right of occupancy.” 21 U.S. at 574 (emphasis added).

      This concept, that federal land grants pass fee title to the grantees subject to

aboriginal title, has repeatedly been upheld by the Supreme Court. In Oneida

Indian Nation v. County of Oneida, the Court explained:

                                         -36-
      It very early became accepted doctrine in this Court that although fee
      title to the lands occupied by Indians when the colonists arrived
      became vested in the sovereign—first the discovering European
      nation and later the original States and the United States—a right of
      occupancy in the Indian tribes was nevertheless recognized. That
      right sometimes called Indian title and good against all but the
      sovereign, could be terminated only by sovereign act. Once the
      United States was organized and the Constitution adopted, these tribal
      rights to Indian lands became the exclusive province of the federal
      law. Indian title, recognized to be only a right of occupancy, was
      extinguishable by the United States.

414 U.S. 661, 667 (1974); see also Buttz, 119 U.S. at 66-67 (“The grant conveyed

the fee subject to this right of occupancy. The railroad company took the property

with this [e]ncumbrance.”); Cramer, 261 U.S. at 229 (grant to railroad did not

extinguish aboriginal title); Santa Fe, 314 U.S. at 345 (citing cases). As the Court

pointed out in Santa Fe, 314 U.S. at 345, these rules governing aboriginal title

have been upheld and reaffirmed for so long that “they should now be considered

no longer open.” Moreover,

      [t]he Santa Fe case also reaffirmed prior decisions to the effect that a
      tribal right of occupancy, to be protected, need not be based upon a
      treaty, statute, or other formal government action. Tribal rights were
      nevertheless entitled to the protection of federal law, and with respect
      to Indian title based on aboriginal possession, the power of Congress
      is supreme.

Oneida, 414 U.S. at 669 (internal quotation marks, citations, and ellipsis omitted).

             a. The Baca grant of “vacant” land

      Absent clear and unambiguous intent by Congress to allow extinguishment

of the aboriginal right of occupancy of the Jemez Pueblo, therefore, the grant of


                                        -37-
land to the Baca heirs was valid to convey the fee but the Baca heirs took the title

subject to the Jemez Pueblo’s aboriginal title. 14 The government cites us to no

language in the 1860 Act to show the unambiguous intent of Congress to

extinguish existing Indian title.

      The government instead argues that a claim accrued to the Jemez Pueblo in

1860 when the Surveyor General concluded the lands at issue were “vacant.” It

asserts that this finding is “flatly inconsistent” with the Jemez Pueblo’s contention

that it “had actual, exclusive, and continuous use and occupancy of those lands.”

Aple. Br. at 26 (internal quotation marks omitted). First, this conflates the factual

merits question of establishing aboriginal possession with the jurisdictional

question on appeal of when a claim actually accrued. See, e.g., Santa Fe, 314 U.S.

at 345, 359 (“[O]ccupancy necessary to establish aboriginal possession is a


       14
          The government cites United States ex rel. Chunie v. Ringrose, 788 F.2d
638, 646 (9th Cir. 1986), for the proposition that a tribe “claiming a right of
occupancy based on aboriginal title . . . lost all rights in the land when they failed
to present a claim to the commissioners.” Aple. Br. at 28 (quoting Chunie, 788
F.2d at 646). But that case involved an 1851 Act which established a commission
to settle land claims only in California and required “every person claiming lands
in California by virtue of any right or title derived from the Spanish or Mexican
government to present his or her claim to the commissioners within two years.”
Chunie, 788 F.2d at 644. That case is inapplicable to the Pueblo Jemez. See
Santa Fe, 314 US. at 349-51 (distinguishing 1854 Surveyor General Act from
1851 Act settling California land claims, and pointing out the latter statute
required claims to be presented to commissioners within two years to avoid
extinguishment while the 1854 Act “merely called for a report to Congress”).
Moreover, the Ninth Circuit stated in Chunie that “[a] grant of Indian-occupied
land by the government to an individual does not . . . constitute extinguishment.”
Chunie, 788 F.2d at 642.

                                         -38-
question of fact.”). As we have pointed out, Supreme Court decisions since 1823

make clear that the Baca grant at issue was subject to the Jemez Pueblo’s

aboriginal title – assuming the Jemez maintained aboriginal possession at the

time. 15

       Second, the conclusion of the Surveyor General of New Mexico that the

lands at issue were vacant and thus could be transferred to the Baca heirs did not

by itself serve to extinguish existing aboriginal title. The decisions in Santa Fe,

314 U.S. 339, and Cramer, 261 U.S. 219, are particularly instructive on this point.

In Santa Fe, the Court made clear that the Act of July 22, 1854, 10 Stat. 308,

which established the office of the Surveyor General of New Mexico, did not

institute “a policy of non-recognition of Indian title,” and it was not persuaded

“that it effected any extinguishment of that title.” Santa Fe, 314 U.S. at 348; see

also United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1387-88 (Ct. Cl.

1975) (statute creating Surveyor General and subsequent Act to confirm bona fide

grants of prior sovereigns to pueblos did not extinguish aboriginal title to lands not

included in the congressional confirmations); Pueblo of Zia v. United States, 19

Ind. Cl. Comm. 56, 70 (1968) (Zia III) (clear that purpose of Surveyor General Act

was to recommend how laws of Spain and Mexico affected claims to land “rather

than to recommend any action by Congress which would affect Indian title to lands


           15
         We express no opinion on whether, on remand, the Jemez Pueblo can
factually establish aboriginal possession to the land it claims.

                                        -39-
based on aboriginal occupancy.”). The Court in Santa Fe held “[i]f there was any

extinguishment on the rights of the Walapais, it resulted not from action of the

Surveyor General but from action of Congress based on his reports,” stating “[w]e

are not advised that Congress took any such action.” Santa Fe, 314 U.S. at 351.

Similarly, nothing cited in the present case suggests that Congress took any action

to extinguish aboriginal title after it authorized the Baca heirs to select substitute

land.

        Likewise, in Cramer, 261 U.S. 219, the Department of the Interior had

issued patents to the Central Pacific Railway Company based on the assumption

that the land contained no encumbrance or reservation preventing the passage of

full title. Cohen, supra at 29-31. Yet, the Supreme Court held that “[s]ince these

Indians with the implied consent of the government had acquired such rights of

occupancy as entitled them to retain possession as against the defendants, no

officer or agent of the government had authority to deal with the land upon any

other theory.” Cramer, 261 U.S. at 234. The Court added that the “acceptance of

leases for the land from the defendant company by agents of the government was,

under the circumstances, unauthorized and could not bind the government; much

less could it deprive the Indians of their rights.” Id. It therefore makes no

difference that the Surveyor General believed the land selected by the Baca heirs

was vacant. He had no authority to extinguish the Jemez Pueblo’s aboriginal title.

        The government responds that the Act of 1860, 12 Stat. 71, 72, intended the

                                          -40-
transfer of the land to the Baca heirs to be absolute and without condition because

it contained no language that the grant “was subject to pre-existing interests,” such

as the Jemez Pueblo’s aboriginal title. Aple. Br. at 27. This argument again

ignores longstanding Supreme Court precedent that the grant passed subject to the

Indian’s right of occupancy absent express extinguishment. Santa Fe, 314 U.S. at

345; Buttz, 119 U.S. at 66-67; Cramer, 261 U.S. at 229; Johnson v. M’Intosh, 21

U.S. at 574. Notably, the Court has never held that a grant needs to contain

specific language stating the land remains subject to aboriginal title. On the

contrary, language was required in the grant to clearly show Congress’s intent to

extinguish aboriginal title, and we can discern no such language or intent in the

1860 Act. 16 Accordingly, the Baca heirs were granted fee title subject to any pre-


       16
         The government cites Shaw v. Kellogg, 170 U.S. 312, 343 (1898), and
Lane v. Watts, 234 U.S. 525 (1914), in arguing that the grant to the Baca heirs
passed free and clear title that could not thereafter be challenged. Both cases
involved other Baca grants and are otherwise inapposite, primarily because the
disputes there were between two non-Indians and had nothing to do with
aboriginal occupancy rights. Shaw involved an action for ejectment of a tenant
who refused to leave the land and contended that the grant of Baca Location No. 4
pertained to non-mineral land, that the tract of land at issue was mineral, and
therefore by the terms of the 1860 Act the land was not within the grant. See 170
U.S. at 330. The case concerned mineral rights and the passage the government
cites in which the Court stated that “the title of the locators and their grantees is
not subject to challenge, and that it is full, absolute, and unconditional title”
concerned the fee title to lands as between two private non-Indian individuals. Id.
at 343.
       Lane involved Baca Float No. 3 and nothing in the opinion pertained to
aboriginal title or extinguishment of aboriginal title. See 234 U.S. at 526. The
Court applied Shaw in holding that title had properly passed from the United
                                                                         (continued...)

                                         -41-
existing aboriginal occupancy rights of the Jemez Pueblo. 17

             b. Baca use of land as a cloud on aboriginal title

      The government counters that even if aboriginal title was not extinguished,

the grant at least placed a cloud on the Jemez Pueblo’s aboriginal title such that a

claim accrued against the United States in 1860. The government asserts that the

Baca’s use of the land is inconsistent with the Pueblo’s aboriginal title.

      But simultaneous occupancy and use of land pursuant to fee title and

aboriginal title could occur because the nature of Indian occupancy differed

significantly from the occupancy of settlers:

             Indian possession or occupation was considered with reference
      to their habits and modes of life; their hunting grounds were as much
      in their actual possession as the cleared fields of the whites; and their
      rights to its exclusive enjoyment in their own way and for their own
      purposes were as much respected.

Mitchel, 34 U.S. at 746. For this reason, the terms “aboriginal use and occupancy”

have been defined “to mean use and occupancy in accordance with the way of life,

habits, customs and usages of the Indians who are its users and occupiers.” Sac &

Fox Tribe of Indians of Okla. v. United States, 383 F.2d 991, 998 (Ct. Cl. 1967).


      16
        (...continued)
States to the Baca heirs. The point of the case was that the grant could not be
“subsequently divested by the officers of the Land Department.” Id. at 540.
       17
          Interestingly, the deed given to the United States in 2000 by the
successors in interest to Baca Location No. 1 warranted the title to be free from
all prior encumbrances, “EXCEPT (1) any claims of and demands of any Indian
nation, tribe or pueblo.” Aplt. App. at 21.

                                         -42-
      One must remember that much of the land involved here is remote. As

described by the court in United States v. Redondo, 254 F. at 657, “[t]he lands in

the [Baca No. 1] location and the surrounding country were wild, mountainous,

and principally in forest, unsettled in 1860 and ever since.” 18 In these

circumstances, it is easy to see how the Surveyor General may have mistakenly

believed the lands were vacant even if they were being used by the Jemez for

hunting, fishing, and other such activities. Similarly, it is also easy to see how a

peaceful and private Indian pueblo might have used portions of this large area of

land for its traditional purposes while one agreeable rancher was using portions of

it for grazing livestock. The Complaint so alleges.

       Whether the Jemez Pueblo can establish that it exercised its right of

aboriginal occupancy to these lands in 1860 and thereafter is a fact question to be

established on remand, where it will have the opportunity to present evidence to

support its claim. To do so, it must show “‘actual, exclusive, and continuous use


       18
         The aboriginal land of the Taos Pueblo was apparently similar in many
respects. After describing the pueblo people’s way of life in Pueblo of Taos v.
United States, 15 Ind. Cl. Comm. 666, 669-78 (1965), the Commission later
explained why the pueblo, with a much smaller population, used more land than
the Spanish settlers who had moved into part of the pueblo’s aboriginal land:
       This surely is not out of line, especially when it is recognized that
       most of the area claimed by Indian title is mountainous and unfit for
       farming or sheepherding. The Spanish preferred the bottom lands
       where they could farm and tend their flocks of sheep and had no real
       need or desire for the upper mountainous lands which the Taos
       Indians inhabited.
Id. at 698.

                                         -43-
and occupancy ‘for a long time’ of the claimed area.” Native Vill. of Eyak v.

Blank, 688 F.3d 619, 622 (9th Cir. 2012) (quoting Sac & Fox Tribe, 383 F.2d at

998). The government contends the Jemez Pueblo cannot prove “exclusive” use

because the Baca heirs used the land. But the “exclusive” part of the test meant

only that in order to establish aboriginal title, a tribe “must show that it used and

occupied the land to the exclusion of other Indian groups.” Pueblo of San

Ildefonso, 513 F.2d at 1394 (emphasis added); see also Native Village of Eyak, 688

F.3d at 624 (“Exclusivity is established when a tribe or a group shows that it used

and occupied the land to the exclusion of other Indian groups.”); Zuni Tribe of

N.M. v. United States, 12 Cl. Ct. 607, 608-09, 617-20 & nn. 13-15 (1987) (holding

Zuni exclusively used and occupied lands where no evidence other tribes used and

occupied lands); Wichita Indian Tribe v. United States, 696 F.2d 1378, 1385 (Fed.

Cir. 1983) (“Clearly, the northern two-thirds of Oklahoma where the Osage also

hunted cannot have been used exclusively by the Wichitas. Lands continuously

wandered over by adverse tribes cannot be claimed by any one of those tribes.”);

Caddo Tribe of Okla. v. United States, 35 Ind. Cl. Comm. 321, 358-60 (1975)

(exclusivity established where Tribe “exercised control over [the claimed area] and

over other Indians who may have ventured therein”).

      To show “actual” and “continuous use,” on the other hand, the Jemez Pueblo

must show, as it alleges in its Complaint, that the Jemez people have continued for

hundreds of years to use the Valles Caldera for traditional purposes, including

                                          -44-
hunting, grazing of livestock, gathering of medicine and of food for subsistence,

and the like. As the cases make clear, if there was actually substantial interference

by others with these traditional uses before 1946, the Jemez Pueblo will not be

able to establish aboriginal title. In that circumstance, moreover, the Pueblo

would be barred by the ICCA statute of limitations for failing to bring a claim

before the ICC.

      The Court of Claims’ decision in Pueblo of San Ildefonso, 513 F.2d 1393, is

illustrative of a situation in which white settlement and use, authorized by the

federal government both statutorily and in fact, brought about a pre-1946 claim

against the United States for failure to protect aboriginal title of the pueblos.

There, three Indian pueblos filed claims with the ICC to recover compensation

from the United States for authorizing the gradual taking of their aboriginal use

and occupancy of lands in northern New Mexico. Id. at 1385-86. The Court of

Claims held that Congress did not intend to extinguish aboriginal title by the

passage of the Pueblo Land Claims Act itself, id. at 1388, but that such

extinguishment had been authorized over time by actual conveyances to non-

Indians under the public land laws, and by inclusion of pueblo land in the Jemez

Forest Reserve and in a grazing district created under the Taylor Grazing Act, id.

at 1390-92. The court made clear that determining whether and when the United

States permitted aboriginal title to be extinguished was a factual question:

      The threshold rule, of course, is that termination of Indian title is

                                          -45-
      exclusively the province of the United States. And in this regard, the
      ‘power of Congress * * * is supreme.’ Santa Fe, 314 U.S. at 347.
      Another familiar principle is that the time fixed for the ‘taking’ of
      specific lands depends upon the particular facts, circumstances and
      history of each case. See [id.] at 357-58. This court was compelled
      to give emphasis to this rudimentary point in its recent decision in
      Turtle Mountain Band of Chippewa Indians v. United States, 490 F.2d
      935, 946 (1974), and Gila River Pima-Maricopa Indian Community v.
      United States, 494 F.2d 1386 (1974).

Id. at 1387 (some citations omitted). After reviewing the history of the three

pueblos involved in the case, the court said:

      But even if the aboriginal title areas of these pueblos were open to
      entry, it does not automatically follow that Indian title was destroyed
      prior to actual entries upon the various tracts of land. We know that
      the process of surveying lands and performing other deeds in
      anticipation of future white settlement does not itself affect Indian
      title. Nor is the bare expectation that lands will be settled sometime
      in the future sufficient to deprive Indian dwellers of their aboriginal
      rights. Gila River, 494 F.2d at 1391. Making lands available for
      white settlement could, of course, in an appropriate factual context,
      constitute termination of aboriginal ownership. See [id.]. But that
      result does not obtain in the present case. The opening of lands ceded
      by Mexico to white settlement was merely an act in recognition of the
      inevitable western migration and eventual settlement of white
      homesteaders. This formal acknowledgment that the territory
      acquired from Mexico would sooner or later be used and occupied by
      migrating white settlers does not translate into a present intention on
      the part of Congress to destroy Indian title. Nor does the opening of
      these lands to settlers under the public land laws signify, as the
      Government would have it, that Congress intended the 1858
      confirmation of the pueblo land grants to effectuate the
      extinguishment of the Indians’ aboriginal ownership rights.

Id. at 1389 (some citations omitted). The court concluded:

      [T]here are no fine, spun of precise formulas for determining the end
      of aboriginal ownership. Unquestionably, the impact of authorized
      white settlement upon the Indian way of life in aboriginal areas may

                                         -46-
         serve as an important indicator of when aboriginal title was lost. But
         such authorized settlement is only one of various factors to be
         considered in determining when specific lands were ‘taken.’ Gila
         River, 494 F.2d at 1391.

Id. at 1390 (emphasis added). See generally Tlingit & Haida Indians of Alaska v.

United States, 177 F. Supp. 452 (Ct. Cl. 1959) (holding evidence established that

aboriginal title was taken by government over time); Pueblo of Nambe v. United

States, 16 Ind. Cl. Comm. 393 (1965) (same); Pueblo of Taos, 15 Ind. Cl. Comm.

666 (1965) (same).

         The latter three cases cited above were all referred to in Zia III, 19 Ind. Cl.

Comm. at 74. There, the pueblos in the Zia litigation (which included the Jemez

Pueblo, see infra at 54), asserted that the United States owed them compensation

for having extinguished their aboriginal titles as a matter of fact over time by

interfering with their native use and occupancy. For example, the Commission in

Zia III discussed what happened when the Secretary of Interior, pursuant to the

Taylor Grazing Act, 48 Stat. 1269, issued his order establishing Grazing District

No. 2:

         The effect of this Order was that [the pueblos] were now required to
         obtain grazing licenses and pay grazing fees for the use of lands
         which they were still using up to the date of said Order, and had been
         using for livestock grazing from time immemorial. We find that such
         action on the part of Congress and the President constitutes a taking
         of petitioners’ Indian title lands under Section 2 of the Indian Claims
         Commission Act.

Id. at 64. Later in the opinion, the Commission explained what happened when the


                                            -47-
Jemez Forest Reserve was created within the exterior boundaries of part of the

pueblos’ aboriginal land:

      In Pueblo of Taos v. United States, 15 Ind. Cl. Comm. 666, 702, we
      said:

             “What these documents [19] establish is that the Pueblo
             Indians had been left undisturbed in the use of their
             aboriginal hunting, grazing and gathering lands until the
             first decade of the 20th century. It was only when the
             Forest Reserves were created that the Indian people were
             told that these lands could no longer be used by them
             without restrictions.”

      We used similar language in describing the same type of situation in
      Pueblo of Nambe v. United States, 16 Ind. Cl. Comm. 393, 420.

      We found in the above cases that the creation of forest reserves had
      caused these Pueblo Indians to be squeezed out of their ancestral
      lands and constituted a taking of these lands.

Id. at 74. This and other conduct of the government sufficiently interfered with

the pueblos’ traditional ways of living so as to effect a taking of their aboriginal

titles to the land involved in the Zia litigation.

      At this point in the current proceedings, neither party has had the

opportunity to offer evidence about whether anyone has actually interfered with

the Jemez Pueblo’s traditional occupancy and uses of the land in question here,

before or after 1946. In sum, on the present record, we cannot say that either the

Baca grant or use of the land by the Baca heirs or their successors establish as a


       19
        The “documents” referred to were government documents received in
evidence. See Pueblo of Taos, 15 Ind. Cl. Comm. at 702.

                                          -48-
matter of law that the Jemez Pueblo had a pre-1946 claim against the government

under the ICCA.

             c. Navajo

      The government also asserts that the Jemez Pueblo’s claim is foreclosed by

our decision in Navajo, 809 F.2d 1455, arguing that the case is directly on point

and that it rejected similar arguments now made by the Jemez Pueblo. But Navajo

is distinguishable. There, the Tribe brought a quiet title action against the United

States to affirm its title to unalloted lands within an Executive Order Reservation

that were restored to the public domain before all congressionally mandated

allotments were made to the Navajos living on the reservation. Id. at 1457. The

Tribe had initially ceded the land at issue to the United States by Treaty in 1868,

id. at 1461-62, and in 1907 the President’s Executive Order 709, as amended by

Executive Order 744, added 1.9 million acres to the Navajo Indian Reservation, id.

at 1457. “The President intended that a temporary reservation of the lands be

made until such time as the Indian occupants could be allotted.” Id. at 1457-58

(internal quotation marks omitted).

      Congress then passed the Act of May 29, 1908, ch. 216, § 25, 35 Stat. 444,

457, which provided that when the President “is satisfied that all the Indians in

any part of the Navajo Indian Reservation in New Mexico and Arizona created by”

Executive Orders 709 and 744 “have been allotted, the surplus lands in such part

of the reservation shall be restored to the public domain and opened to settlement

                                         -49-
and entry by proclamation of the President.” Navajo, 809 F.2d at 1459. Following

this act of Congress, the President issued Executive Order 1000, which restored to

the public domain “unalloted lands within certain sections of the reservation

created by Executive Order Number 709, as amended by 744, except for 110

unapproved allotments.” Id. In 1911, President Taft issued Executive Order 1284,

“restoring to the public domain additional surplus lands in that reservation.” Id.

Subsequently, but before 1946, the government “issued patents on parts of such

land to the State of New Mexico as well as to the predecessors in interest of the

defendant landowners in this case.” Id.

      We recognized in Navajo that in Solem v. Bartlett, 465 U.S. 463, 475-76

(1984), the Court “held that, standing alone, the phrase restored to ‘the public

domain’ does not evince explicit congressional intent to disestablish or diminish

an Indian reservation.” Navajo, 809 F.3d at 1459 n.7. But we noted the Navajo

had nevertheless conceded with respect to the land at issue that the phrase

“restored to the public domain,” in both “Executive Orders 1000 and 1284 was

intended to disestablish the addition to the Navajo Reservation created by

Executive Order 709, as amended by Executive Order 744.” Id. We explained

that “[i]nstead, the Tribe argues that, notwithstanding Congress’ intent to

diminish, the President’s orders were null and void as inconsistent with

congressionally mandated prerequisites for such diminishment.” Id.

      The essence of the Navajo’s claim was that “the Executive Orders were null

                                          -50-
and void, because they violated the prerequisite established by section 25 of the

Act of May 29, 1908, for returning the unallotted lands to the public domain – that

all Navajos first be granted an allotment.” Id. at 1462. The Tribe based its

argument on the fact that at the time the last two Executive Orders were issued,

“less than one-half of the eligible Navajos then living on the reservation had

received allotments.” Id. at 1459. The Navajo’s central argument was “that the

United States breached its fiduciary duty to the Tribe by restoring such lands to

the public domain in Executive Orders Number 1000 and 1284.” Id. at 1462.

Accordingly, the Tribe claimed, its title was never effectively extinguished. Id. at

1463.

        We held that the Tribe’s claims “accrued in 1908 and 1911 when Executive

Orders Number 1000 and 1284 were issued, respectively, or at least when the

Tribe learned of the President’s actions.” Id. at 1470. We explained that the

Navajo “simply cannot pretend that the issuance of both the Executive Orders and

[subsequent] land patents never occurred” prior to 1946. Id. at 1471. We held

that “[t]he Tribe’s claim was one arising under Executive Orders of the President

under section 2 of the ICCA and therefore one within the jurisdiction of the

Commission, since both alleged receipt of title to the subject lands and the

Government’s action inconsistent with that title arose pursuant to Executive

Orders.” Id. Accordingly, we concluded that “[b]ecause these claims clearly

accrued before 1946, the Tribe had until 1951 to assert them before the

                                        -51-
Commission, where it would have been limited to monetary recovery if its claims

were found valid.” Id.

      The claim in Navajo is significantly different from the claim here in two

important respects. First, it was a claim of title granted by Presidential Executive

Order, which is different than a claim based on aboriginal title. At the time of the

grant, the President had no power to convey anything other than transitory,

possessory rights to tribes in Executive Order Reservations. Confederated Bands

of Ute Indians v. United States, 330 U.S. 169, 176-81 (1947) (Executive Order

created nothing more “than a mere temporary and cancellable possessory right to

the Indians”); Sioux Tribe of Indians v. United States, 316 U.S. 317, 327-28

(1942). We emphasized in Navajo this temporary nature of the title granted. See

809 F.2d at 1457-58 (“The President intended ‘that a temporary reservation of the

lands be made until such time as the Indian occupants could be allotted.’”)

(quoting Letter from Mr. C.F. Larrabee, Acting Commissioner of Indian Affairs, to

the Honorable J.S. Sherman, Chairman, House Committee on Indian Affairs)).

The interest of the Tribe in Navajo, therefore, was very different than a claim

based on aboriginal possession. Second, the Navajo actually conceded that the last

two Executive Orders were intended to extinguish its aboriginal title. The Jemez

Pueblo contends, to the contrary, that its aboriginal title was never extinguished by

Congress, and the government has not established otherwise.

      Finally, in Navajo it was clear from the final Executive Order in 1911 that

                                         -52-
the President intended to extinguish the Tribe’s claim to the reservation land. This

is especially important, because “prior to the enactment of the” ICCA in 1946,

Indians were not entitled to compensation “when the President by Executive order

subsequently took land, previously set aside by Executive Order as a reservation

for the benefit of the Indians, and returned said land to the public domain without

any payment of compensation to the Indians.” Northern Paiute Nation v. United

States, 634 F.2d 594, 601 (Ct. Cl. 1980) (citing Ute Indians, 330 U.S. at 176;

Sioux Tribe, 316 U.S. at 331). Once the ICCA in 1946 authorized compensation

for claims based on Presidential Executive Orders, however, it would have become

clear to the Navajo that it now had a compensatory claim based on the 1911 taking

of its land by Executive Order.

      In our case, on the other hand, the Baca grant did not extinguish aboriginal

title as a matter of law. Our decision in Navajo does not trump the Supreme Court

cases holding aboriginal title cannot be extinguished by the grant to a third party

of fee title to the land at issue except by clear and unambiguous congressional

intent. See, e.g., Santa Fe, 314 U.S. at 346, 354 (congressional intent to

extinguish aboriginal title must be “plain and unambiguous” and will not be

“lightly implied”); see also Johnson v. M’Intosh, 21 U.S. 543 (1823); Mitchel, 34

U.S. 711 (1835); Chouteau, 57 U.S. 203 (1853); Holden v. Joy, 84 U.S. 211

(1872); Buttz, 119 U.S. 55 (1886); Cramer, 261 U.S. 219 (1923); Shoshone Tribe,

304 U.S. 111 (1938); Oneida Indian Nation, 414 U.S. 661 (1974).

                                         -53-
      In sum, we hold that the 1860 grant by the United States of Baca Location

No. 1 did not by itself extinguish aboriginal title of the Jemez Pueblo such that the

Pueblo was required to bring a claim against the United States when Congress

enacted the ICCA in 1946.

      2. ICCA § 22

      Section 22(a) of the ICCA states in pertinent part: “The payment of any

claim, after its determination in accordance with this Act, shall be a full discharge

of the United States of all claims and demands touching any of the matters

involved in the controversy.” The government points out that in Zia I, 11 Ind. Cl.

Comm. 131, the Jemez Pueblo alleged aboriginal title to 520,000 acres of land,

and was eventually paid for a taking in United States v. Pueblo De Zia, 474 F.2d

639 (Ct. Cl. 1973) (Zia IV). The government argues that § 22 bars the Jemez

Pueblo’s claim because the compensation it received in the Zia litigation was for

lands that “touched upon” the lands that are the subject of the claim here. Aple.

Br. at 42.

      The Jemez Pueblo responds that the lands at issue in the prior litigation

concerned different lands and, unlike here, the pueblos conceded in the Zia

litigation that their aboriginal title to the land had been extinguished over time by

congressional authorization before 1946, so the ICCA provided them a claim for

the taking of that land. Specifically, § 2 of the ICCA provided in relevant part that

the ICC had jurisdiction to hear “claims arising from the taking by the United

                                         -54-
States, whether as the result of a treaty of cession or otherwise, of lands owned or

occupied by the claimant without the payment for such lands of compensation

agreed to by the claimant.” ICCA § 2, 25 U.S.C. § 70a(4) (1976); see also

Arizona v. California, 530 U.S. 392, 402-03 n.1 (2000) (“The Act conferred

exclusive jurisdiction on the Commission to resolve Indian claims solely by

payment of compensation.” (emphasis added)); United States v. Dann, 873 F.2d

1189, 1198 (9th Cir. 1989) (The ICC “simply had jurisdiction to award damages

for takings or other wrongs that occurred on or before August 13, 1946”).

      Given our conclusions that the Baca grant did not extinguish aboriginal title

of the Jemez Pueblo and that there is no evidence the Pueblo had a claim against

the United States prior to 1946 with respect to the land involved in this action, we

disagree with the government that the Jemez Pueblo could have brought its current

claims before the ICC in the prior litigation. The government’s res judicata

argument fails because the Jemez Pueblo’s current claim is a quiet title action to

establish that its aboriginal title to different land has not been extinguished. 20


       20
         The government cites numerous cases in support of its argument that § 22
of the ICCA bars the Jemez Pueblo’s claim under a res judicata theory. But the
cases it cites are factually inapplicable and do not support its argument. The
government also argues that “under typical claim preclusion, [the] Jemez Pueblo’s
claims would be barred” because the “parties are identical, the ICC and Court of
Claims issued a final judgment on the merits of [the] Jemez Pueblo’s aboriginal
title and its extinguishment, and under the transactional test this claim is identical
to the prior action.” Aple Br. at 45 (citing Hatch v. Boulder Town Council, 471
F.3d 1142, 1148-54 (10th Cir. 2006)). But the Jemez Pueblo’s current claim on
                                                                        (continued...)

                                           -55-
B. Motion to dismiss under Rule 12(b)(6)

      The government argues in the alternative that even if the district court erred

in granting its motion to dismiss for lack of jurisdiction, we should nevertheless

affirm dismissal of the action for failure to state a claim under Fed. R. Civ. P.

12(b)(6). It contends the Jemez Pueblo did not allege facts in its Complaint

showing that it maintained “full dominion and control over the area, such that it

possessed the right to expel intruders, as well as the power to do so.” Aple. Br. at

47 (internal quotation marks omitted). Essentially, the government is contending

the Complaint fails to allege sufficient facts to establish aboriginal title.

      As we noted earlier, “we accept as true all well-pleaded factual allegations”

in the Complaint and view them “in the light most favorable to the [Jemez

Pueblo].” Casanova, 595 F.3d at 1124-25. A pleading is required to contain “a

short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).



      20
       (...continued)
appeal is not a pre-1946 takings claim and involves different land. It is therefore
not identical to the prior action before the ICC.

                                          -56-
      In Khalik v. United Air Lines, we observed under Twombly and Iqbal that

“[a] plaintiff must ‘nudge [his] claims across the line from conceivable to

plausible in order to survive a motion to dismiss.’” 671 F.3d 1188, 1190 (10th

Cir. 2012) (alteration in original) (quoting Twombly, 550 U.S. at 570). The

complaint must contain sufficient factual allegations “to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555. We recognized in

Khalik, 671 F.3d at 1191, that “[t]here is disagreement as to whether this new

standard requires minimal change or whether it in fact requires a significant

heightened fact-pleading standard.” We held:

      [T]he Twombly/Iqbal standard is a middle ground between heightened
      fact pleading, which is expressly rejected, and allowing complaints
      that are no more than labels and conclusions or formulaic recitation of
      the elements of a cause of action, which the Court stated will not do.
      In other words, Rule 8(a)(2) still lives. . . . [U]nder Rule 8, specific
      facts are not necessary; the statement need only give the defendant
      fair notice of what the . . . claim is and the ground upon which it
      rests.

Id. at 1191-92 (internal quotation marks and alterations in original omitted).

      In each case, “[t]he nature and specificity of the allegations required to state

a plausible claim will vary based on context,” Kan. Penn. Gaming, LLC v. Collins,

656 F.3d 1210, 1215 (10th Cir. 2011), and this “context specific task . . . requires

the reviewing court to draw on its judicial experience and common sense,” Iqbal,

556 U.S. at 679. “[T]he 12(b)(6) standard does not require that Plaintiff establish

a prima facie case in her complaint,” but rather requires only that the Plaintiff


                                         -57-
allege enough factual allegations in the complaint to “set forth a plausible claim.”

See Khalik, 671 F.3d at 1192.

      The Jemez Pueblo has alleged sufficient facts in its Complaint to survive the

12(b)(6) standard. It alleges that it has used and occupied the Valles Caldera for

the last 800 years and provides sufficient detail to put the government on notice of

its claim of aboriginal title. The government asserts that the Complaint fails to

state a claim because it “is devoid of any factual allegations suggesting that the

Jemez Pueblo had or exercised the right to expel the Baca heirs or their

successors-in-interest or that the Pueblo exercise[d] full dominion and control over

the Baca Ranch.” Aple. Br. at 48 (internal quotation marks omitted). This

argument fails because, as stated supra at 42, simultaneous use and occupancy of

the land pursuant to fee title and aboriginal title could occur since the nature of

aboriginal occupancy differed significantly from the occupancy of settlers.

Accordingly, the Jemez Pueblo did not have to allege that the Baca heirs and their

successors were not using the land so long as the Pueblo alleged that it was also

using the land in traditional Indian ways.

      Finally, the government contends that “as a matter of law, Congress’

passage of the Preservation Act to govern the National Preserve would have

extinguished aboriginal title, if any such right still existed.” Aple. Br. at 48.

However, nowhere in the Preservation Act did Congress say it intended to

extinguish aboriginal title. Rather, as the Jemez Pueblo and Amici point out, one

                                          -58-
of the purposes of the Act was to preserve the cultural and historic value of the

land, 16 U.S.C. § 698v-3(b), while avoiding interference with “Native American

religious and cultural sites,” id. § 698v-3(g)(2)(B). While there were other

purposes as well, the management of the Preserve for all of its purposes is to be

done in consultation with Indian tribes and pueblos. Id. § 698v-6(f)(5).

Moreover, the warranty deed the government accepted from the Baca successors to

create the Preserve specifically excepted from the warrants all prior “claims of and

demands of any Indian nation, tribe, or pueblo.” See supra at 42 n.17.

Accordingly, we are not persuaded the government is entitled to dismissal of the

Jemez Pueblo’s claim based on its contention that Congress’ creation of the

Preserve extinguished the Pueblo’s aboriginal title as a matter of law.21




       21
         The government submitted supplemental authority showing that Congress
recently enacted the National Defense Authorization Act of 2015, Pub. L. No.
113-291, H.R. 3979, 113th Cong. and declared in section 3043 that “the Valles
Caldera National Preserve is designated as a unit of the National Park System.” It
also transferred administrative jurisdiction over the Preserve to the Department of
the Interior. Aple. Supplemental Authority Pursuant to Fed. R. App. P. 28(j). As
a consequence, it argues, “[b]y designating the lands at issue in this case as a unit
of the National Park System, Congress undisputedly extinguished any
unrecognized aboriginal title.” Id. In response, the Jemez Pueblo points to §
3043(b)(13)(C)(13) which specifically states that “[n]othing in this section affects
valid existing rights.” Aplt. 28(j) Resp. We leave it to the district court to
address this new authority in the first instance on remand.

                                         -59-
                                         V

                                 CONCLUSION

      We REVERSE the district court’s dismissal of the action and REMAND for

further proceedings consistent with this opinion.




                                        -60-
