Tenth Circuit Court of Appeals rules in favor of Navajo Nation

WINDOW ROCK, Ariz. — On May 26, the Tenth Circuit Court of Appeals ruled in favor of the Navajo nation to deny utility company’s condemnation of tribal land in Public Service Company of New Mexico vs. Barboan.

The case concerns an attempt by Public Service Company of New Mexico (PNM) to condemn several parcels of land in the eastern part of the Navajo Nation which include fractional interests owned by the Nation.

The appeals court ruled that Section 357 of Title 25 of the U.S. Code, which allows condemna-tion of “allotments,” does not allow condemnation of land previously allotted to individual tribal members that are partially owned by an Indian tribe.

Through the Department of Interior’s Land Buy Back Program and other programs, the Nation and other Indian tribes have reacquired ownership of lands previously allotted to individuals. The result of the opinion is that outside entities seeking a right of way over such lands must receive the approval of the tribal government and may not force an involuntary easement over the proper-ty through court action.

“The opinion is a triumph for the Navajo Nation and for Indian tribes throughout the United States, as the court confirmed that energy and utility companies must seek tribal approval for rights-of-way across tribal lands,” said Navajo Nation Attorney General Ethel Branch.

Branch noted the victory was especially important because the Navajo Nation Department of Jus-tice litigated the case completely in-house under the leadership of Assistant Attorney General Paul Spruhan.

Navajo Nation President Russell Begaye celebrated the opinion.

“This is an important victory for the sovereignty of the Navajo Nation and we expect those com-panies seeking an easement over our land to negotiate with us as a sovereign,” he said.

Branch and Begaye expressed their thanks to the attorneys for the individual Navajo owners and the tribal nations that signed on to an amicus brief in support of the Nation.

Vice-President Jonathan Nez said it was a team effort for all of Indian country.

“Tribal sovereignty can win when tribes and its members work together,” Nez said

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