731 F.

2d 703
17 Ed. Law Rep. 81

UNITED STATES of America in its own right for and on

Behalf
of SANTA ANA INDIAN PUEBLO, Plaintiff-Appellant,
v.
UNIVERSITY OF NEW MEXICO, et al., DefendantsAppellees.
No. 83-1238.

United States Court of Appeals,

Tenth Circuit.
April 9, 1984.

Ellen J. Durkee, Atty., Dept. of Justice, Washington, D.C. (F. Henry

Habicht, II, Acting Asst. Atty. Gen., Washington, D.C., William L. Lutz,
U.S. Atty., Herbert A. Becker, Asst. U.S. Atty., Albuquerque, N.M., and
David C. Shilton, Atty., Dept. of Justice, Washington, D.C., with her on
the briefs), for plaintiff-appellant.
Douglas Seegmiller, Albuquerque, N.M. (Robert C. Poole, of Poole,
Tinnin & Martin, Albuquerque, N.M., with him on the briefs), for
defendant-appellee University of New Mexico.
Bruce Thompson, Asst. Atty. Gen., Santa Fe, N.M. (Paul Bardacke, Atty.
Gen., and Reginald J. Storment, Asst. Atty. Gen., Santa Fe, N.M., on the
brief) for defendants-appellees Museum of New Mexico and New Mexico
State Parks and Recreation Division.
Scott E. Borg, Judy A. Flynn-O'Brien, and Richard W. Hughes, of
Luebben, Hughes & Tomita, Albuquerque, N.M., filed an amicus curiae
brief on behalf of Pueblo of Santa Ana.
Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.

The United States, in its own capacity and as trustee for the Indians of the
Santa Ana Pueblo, sued the University of New Mexico, the Regents of the
University of New Mexico, the Museum of New Mexico, and the New Mexico
State Park and Recreation Commission under 28 U.S.C. Sec. 1345. The United
States sought ejectment of defendants from 11.8 acres of allegedly federallyprotected tribal lands and damages for defendants' trespass.1 The district court
granted the Regents' motion to dismiss the claim for damages because of the
immunity granted to the states by the Eleventh Amendment of the United
States Constitution. It held that all of the defendants are instrumentalities of the
State of New Mexico entitled to Eleventh Amendment immunity.2 Relying
upon North Dakota v. Minnesota, 263 U.S. 365, 44 S.Ct. 138, 68 L.Ed.2d 342
(1923),3 the court found that the United States could not lend its name to an
action which was essentially a private suit against an unconsenting state. It
found that the United States did not have sufficient monetary interest to bring
the suit in its own right. After the court dismissed the other claims in the suit
without prejudice pursuant to the parties' stipulation, the United States
appealed. The only issue before us is whether the Eleventh Amendment bars
the United States from bringing this action for recovery of damages.
The Eleventh Amendment provides:

2
"The
Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State."
3

This amendment bars suits against a state brought by citizens of another state,
of a foreign country, and of the state being sued, see Edelman v. Jordan, 415
U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974), but it does not
bar suits against a state by the United States. Arizona v. California, --- U.S. ----,
103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); United States v. Mississippi, 380 U.S.
128, 140-41, 85 S.Ct. 808, 814-15, 13 L.Ed.2d 717 (1965).

We believe United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298, 70 L.Ed.2d
539 (1926), controls this case. There the United States brought a suit against
the State of Minnesota to cancel patents to lands issued to the state or, if the
state had sold the lands, to recover their value. The United States asserted that
the patents had been issued in violation of treaties under which the United
States "became obligated to apply the lands and the proceeds of their sale
exclusively to the use, support and civilization of the Chippewas." Id. at 192,
46 S.Ct. at 300. Accordingly, in its prayer for relief the United States requested
that the Court order "that the lands--or, where any have been sold, their value in
their stead--be restored to the control of the United States," and that it decree

"that the lands and moneys are to be held, administered and disposed of by the
United States" in accordance with its treaty obligations to the Chippewa tribe.
Id. at 194, 46 S.Ct. at 300. Minnesota argued that the suit essentially was one
brought by the Indians against the state and therefore was not within the
jurisdiction of the Court; it claimed that the tribe was the real party in interest
as the sole beneficiary of any recovery and that the United States was only a
nominal party--"a mere conduit through which the Indians are asserting their
private rights." Id. at 193, 46 S.Ct. at 300. The Court held that the United States
had a direct interest in the Chippewa land controversy based on the United
States' duty to aid and protect the Indians. The Court noted that the interest of
the United States arose "out of its guardianship over the Indians and out of its
right to invoke the aid of a court of equity in removing unlawful obstacles to
the fulfillment of its obligations; and in both aspects the interest is one which is
vested in it as a sovereign." Id. at 194, 46 S.Ct. at 301. The Court rejected the
argument that because the tribe could not sue the state the United States had no
duty or right to sue. Id. at 194-95, 46 S.Ct. at 300-01.
5
"[I]mmunity
from suit is not based on and does not reflect an absence of duty. So the
fact that the Indians could not sue the United States for a failure to demand that the
State surrender the lands or their value does not show that the United States owes no
duty to the Indians in that regard. Neither does the fact that they could not sue the
State show that the United States is without right to sue her for their benefit. But it
does make for and emphasize the duty, and therefore the right, of the United States
to sue."
6

Id. at 195, 46 S.Ct. at 301.

In the case before us, the district court first attempted to distinguish Minnesota
on the basis that the damage award would ultimately benefit the Pueblos. But in
Minnesota the Court permitted an award of monetary damages for the
Chippewa lands that Minnesota had sold and that could not be restored to the
United States by cancelling the patents. In Minnesota, the award would have
been paid out of the state treasury and would ultimately benefit the tribe.
Because the United States acted under its fiduciary obligation in bringing this
trespass claim, it does not matter that the ultimate beneficiary may be the
Pueblos. 270 U.S. at 193-95, 46 S.Ct. at 300-01.

The district court also attempted to distinguish Minnesota on the ground that
the relationship of the United States to the Pueblos was different from its
relationship to the Chippewas because the United States had specific treaty
obligations to the Chippewas. That is a distinction without a difference.
Congress has "pervasive authority, rooted in the Constitution, to control

[Indian] tribal property." Delaware Tribal Business Committee v. Weeks, 430

U.S. 73, 83, 97 S.Ct. 911, 918, 51 L.Ed.2d 173 (1977). This authority is "one of
the most fundamental expressions, if not the major expression, of the
constitutional power of Congress over Indian affairs." Id. at 86, 97 S.Ct. at 919.
The Indian Nonintercourse Act, 25 U.S.C. Sec. 177, has been perhaps the most
significant congressional enactment regarding Indian lands. The Act's
overriding purpose is the protection of Indian lands. See United States v.
Southern Pacific Transportation Co., 543 F.2d 676, 698 (9th Cir.1976). It
acknowledges and guarantees the Indian tribes' right of possession, United
States v. Santa Fe Pacific Railroad, 314 U.S. 339, 348, 62 S.Ct. 248, 252, 86
L.Ed. 260 (1941), and imposes on the federal government a fiduciary duty to
protect the lands covered by the Act. Joint Tribal Council of Passamaquoddy
Tribe v. Morton, 528 F.2d 370, 379 (1st Cir.1975).
9

Congress extended the Nonintercourse Act to the Pueblos in 1851. Act of

February 27, 1851, ch. 14, Sec. 7, 9 Stat. 587. In the New Mexico Enabling
Act, Congress declared that the lands of the Pueblo Indians "shall be and
remain subject to the disposition and under the absolute jurisdiction and control
of the Congress of the United States." Ch. 310, Sec. 2, 36 Stat. 557, 559
(1910). The Pueblo Lands Act of 1924 required that the United States, "in its
sovereign capacity as guardian of said Pueblo Indians," file suits on their behalf
to quiet title to their lands. Ch. 331, Sec. 1, 43 Stat. 636. Section 17 of the
Pueblo Lands Act reaffirmed that the Pueblos and their lands were fully under
the guardianship of Congress and the protection of the Nonintercourse Act. Id.
at 641-42.

10

The Supreme Court also recognized that Congress has assumed sufficient
control over Pueblo lands to create a strong fiduciary duty in the United States.
As the Court stated in United States v. Chavez, 290 U.S. 357, 362, 54 S.Ct.
217, 219, 78 L.Ed. 360 (1933),

11
"[T]he
status of the Indians of the several Pueblos in New Mexico is that of
dependent Indian tribes under the guardianship of the United States and that by
reason of this status they and their lands are subject to the legislation of Congress
enacted for the protection of tribal Indians and their property."
12

And in United States v. Sandoval, 231 U.S. 28, 47, 34 S.Ct. 1, 6, 58 L.Ed. 107
(1913), which held that Congress could validly prohibit the sale of intoxicating
liquors to the Pueblos, the Court reasoned,

13
"[T]he
legislative and executive branches of the government have regarded and
treated the Pueblos of New Mexico as dependent communities entitled to its aid and

protection, like other Indian tribes, and, considering their Indian lineage, isolated
and communal life, primitive customs and limited civilization, this assertion of
guardianship over them cannot be said to be arbitrary, but must be regarded as both
authorized and controlling."
14

The trial court indicated that the United States' obligation to the Pueblos is
diminished because the Pueblos own their property in fee simple. However, in
United States v. Candelaria, 271 U.S. 432, 440-44, 46 S.Ct. 561, 562-63, 70
L.Ed. 1023 (1926), the Court expressly rejected the argument that the Pueblos'
fee simple ownership impaired the guardianship duty or power of the United
States. This Court also has recognized that the Pueblos are entitled to the same
protection as other tribes regardless of their fee simple title, and "the intent of
Congress to provide such protection cannot be doubted." Plains Electric
Generation & Transmission Cooperative, Inc. v. Pueblo of Laguna, 542 F.2d
1375, 1381 (10th Cir.1976); accord New Mexico v. Aamodt, 537 F.2d 1102,
1111 (10th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d
572 (1977). Thus, we find no reasonable basis to distinguish the United States'
duty to the Chippewas in Minnesota and its duty to the Pueblos in this case.

15

REVERSED AND REMANDED for further proceedings consistent with this

opinion.

The Pueblo of Santa Ana is a tribal entity for which the United States Bureau of
Indian Affairs recognizes trust responsibility. 46 Fed.Reg. 35360, 35362.
Although the Pueblo of Santa Ana allegedly owns the land at issue in this case
in fee simple, it is subject to the restrictions on alienation imposed by the
Indian Nonintercourse Act, 25 U.S.C. Sec. 177, made applicable to Pueblo
lands by the Act of February 27, 1851, 9 Stat. 587. See United States v.
Candelaria, 271 U.S. 432, 442, 46 S.Ct. 561, 563, 70 L.Ed. 1023 (1926);
Alonzo v. United States, 249 F.2d 189, 196 (10th Cir.1957), cert. denied, 355
U.S. 940, 78 S.Ct. 429, 2 L.Ed.2d 421 (1958). The United States alleges that
sometime after 1935 the University and the other defendants physically
invaded approximately 11.8 acres of land owned by the Pueblo without
permission. The defendants deny the Pueblo's claimed ownership of the land,
and they deny that any actionable physical invasion has ever occurred

On appeal no party disputes the correctness of the district court finding that the
defendants are instrumentalities of the state that may assert Eleventh
Amendment immunity

In North Dakota v. Minnesota, the Supreme Court recognized that a state had a

sufficient interest in the health and prosperity of its citizens to bring suit against
another state to enjoin the flooding of its own citizens' farmlands, but
concluded that the Eleventh Amendment barred a claim for damages made on
behalf of individual citizens. The Court held that the individual citizens were
the real parties in interest with regard to the claim for damages because it was
inconceivable that the state was "prosecuting this damage feature of its suit
without intending to pay over what it thus recovers to those entitled." 263 U.S.
at 375, 44 S.Ct. at 140