Navajo Nation President Russell Begaye addresses the National Indian Gaming Association Tradeshow and Convention in Las Vegas, Nevada, on April 20, 2018. Photo: Navajo Nation Office of the President and Vice President

Supreme Court turns away utility company in closely-watched sovereignty case

Indian Country is breathing a sigh of relief as the nation's highest court has refused to hear a closely-watched tribal sovereignty dispute.

Without comment, the U.S. Supreme Court on Monday denied a petition in Public Service Company of New Mexico v. Barboan. The move, which came in an order list, means a utility company won't be able to condemn allotments on the Navajo Nation without the tribe's consent.

The development affirms a key precedent from the 10th Circuit Court of Appeals. The Public Service Company of New Mexico must obtain permission from the owners of the allotment -- including the tribal government -- if it wants to continue operating a 60-mile power line on the reservation, a three-judge panel ruled in May 2017.

"Absent explicit authorization, tribal sovereignty prevails," Judge Gregory A. Phillips wrote in the 27-page decision.

Though the case only involved one tribe on one reservation, it drew significant attention from energy interests -- including the wealthy backers of the controversial Dakota Access Pipeline. In a slew of briefs, both at the Supreme Court and at the 10th Circuit, they argued tribal sovereignty should not come into play at all because the power line was originally allotted to Navajo citizens, and not the tribal government.

"When allotting reservation lands to individual Indians 100 years ago, Congress made clear its intent to 'extinguish tribal sovereignty' over those lands," the Edison Electric Institute, the Association of Oil Pipe Lines and the American Gas Association said in their brief to the high court.

But the Trump administration, often criticized for being too pro-industry, backed the tribe and the owners of the allotment. Attorneys from the Department of Justice stood behind the lower court ruling in spite of the energy onslaught.

Federal law "does not authorize condemnation of tribal interests in land, and the court of appeals correctly rejected petitioner’s argument," the brief stated.

With the sparring over, the Supreme Court's action drew praise from the tribe's top legal official.

"The Nation is pleased that the Supreme Court declined to review the Tenth Circuit’s unanimous ruling that tribally-held land is not subject to condemnation proceedings," Ethel Branch, the Attorney General of the Navajo Nation, told Indianz.Com on Monday.

Despite the death of Barboan, another closely-watched case is generating concerns. In Oklahoma, which also falls within the 10th Circuit, a federal judge has ordered the removal of a natural gas pipeline from allotments owned in part by the Kiowa Tribe.

Enable Midstream Partners, the company involved in that dispute, has operated the pipeline for nearly two decades, all without the permission of the tribe or the owners of the allotments. The owners haven't been paid in the meantime, either.

The 10th Circuit is hearing arguments in the trespass case next month. Separately, Enable is attempting to condemn the allotments at issue, a move that seems doomed to fail now that the Supreme Court has refused to overturn Barboan precedent.

Navajo Nation Vice President Jonathan Nez poses with participates in Bears Ears Prayer Run Alliance in Window Rock, Arizona, in March 2018. Photo: Navajo Nation OPVP

The legal development comes as the Navajo Nation observes a major milestone. Starting on May 14, Vice President Jonathan Nez will lead a 400-mile run to commemorate 150th anniversary of the signing of its treaty with the United States.

“We are not re-enacting, but remembering,” Nez said of event. “We are showing our resilience as Navajo people and remembering our ancestors who were thinking about us as they persevered and negotiated the treaty. As they signed their X’s on the treaty, they were fighting for a continuation of our way of life.”

The run begins at Fort Sumner in New Mexico. That's where the federal government held thousands of Navajo leaders and citizens as prisoners in the late 1800s, having accused the tribe of engaging in hostilities against settlers in the region.

To get there, the U.S. military forced the Navajos to march hundreds of miles from their homelands. At least 200 died in the Long Walk and nearly 2,400 people -- many of them women, children and the elderly -- died while being held at Fort Sumner.

“We are taught not to talk about this particular time period,” Nez said of the Yet Hwéeldi, the Navajo term for the forced walk and imprisonment. “But at the same time, we are told to never forget.”

The ordeal ended in 1868 with the signing of the treaty, which recognized the relationship between the tribe and the federal government, as well as tribe's homelands in New Mexico, Arizona and Utah. But the agreement wasn't a victory -- the Navajos who survived had to walk back to the reservation, a distance of about 400 miles.

“We are at a point in world history when people are speaking up,” said Peterson Zah, ambassador for the Navajo Nation. “Not talking about our past or not thinking about it, that’s not good. If we don’t talk about it, if we hide our history and who we are, we’re doing a disservice to the Navajo people—and to the rest of the world. The more we talk about it, the more we can prevent this from happening again.”

Vice President Nez will be leading runners on a journey that goes through Santa Fe, the capital of New Mexico, and Albuquerque, the largest city in the state. The route also goes through Pueblo reservations near Albuquerque.

Runners expect to complete about 30 miles per day in three stages over a 19-day period. They will finish on the morning of June 1, when the treaty was signed back in 1868, at the Navajo Nation Museum in Window Rock, Arizona, where the tribe is headquartered.

During the entire month of June, the original treaty will be on display at the museum. Tribal leaders are encouraging citizens to come to Window Rock to share their stories and to recognize the leaders who signed the historic agreement.

“The United States only signs treaties with other nations,” President Russell Begaye said. “Through the Treaty of 1868, the United States reaffirmed us as a sovereign nation. When we think about the treaty, we should also think about those leaders, and we should be proud to be part of the great Navajo Nation.”

The Barboan petition was resolved on Monday without the input of Justice Neil Gorsuch. He previously served as a judge on the 10th Circuit, though he did not participate in that court's ruling last year.

The Kiowa allotment trespass case is Davilla v. Enable Midstream Partners LP, with oral arguments taking place on May 16 in Denver, Colorado. The condemnation proceeding is Enable Oklahoma Intrastate Transmission LLC v. 25 Foot Wide Easement. Briefing is ongoing in that case.

10th Circuit Court of Appeals Decision:
Public Service Company of NM v. Barboan (May 26, 2017)

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Gas pipeline stays in place on Indian land despite court decision (March 29, 2018)
Tribes see continued challenges as more cases head to highest court (February 21, 2018)BR Battle brews as utility company takes sovereignty dispute to Supreme Court (August 2, 2017)BR Navajo Nation welcomes victory for 'sovereignty' in land dispute (May 30, 2017)
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