Response Brief of Appellee Navajo Nation

Authors

Paul Spruhan, University of New Mexico - School of LawFollow

Document Type

Brief

Publication Date

9-30-2016

Abstract

This appeal concerns the claimed authority of private utility companies to unilaterally force an easement over allotments that include a sovereign Indian nation among its owners. The four certified questions before the Court implicate congressional policy concerning allotments as well as the sovereign interests of the Navajo Nation (“Nation”). Appellants PNM and Transwestern assert that 25 U.S.C. § 357 (Section 357) applies beyond allotments wholly owned by individual allottees to also allow condemnation of the allotment interests of sovereign tribal nations. However, as discussed below, the application of Section 357 to a tribal nation’s property would unduly impair a tribal sovereign’s property interests and its immunity from suit. Absent clear congressional intent to harm either, Section 357 cannot apply.

Publisher

United States Court of Appeals for the Tenth Circuit

Volume

Docket No. 16-2050

First Page

i

Last Page

35

Keywords

General Allotment Act, Utility Easements, Indian Allotments, Tribal Sovereign Property Interests, Indian Reorganization Act of 1934, Indian Trust Allotments, Allotment Fractionation

Recommended Citation

Response Brief of Appellee Navajo Nation, Public Service Co. of New Mexico v. Barboan, 857 F.3d 1101 (10th Cir. 2017), cert. denied, 138 S. Ct. 695 (2018).