PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

PUEBLO OF JEMEZ, a federally 

recognized Indian Tribe, 

 Plaintiff - Appellant, 

v. 

UNITED STATES OF AMERICA, 

 Defendant - Appellee, 

and 

NEW MEXICO GAS COMPANY, 

 Intervenor Defendant- Appellee. 

------------------------------ 

ROBERT A WILLIAMS, JR.; REBECCA 

TSOSIE; MATTHEW L.M. FLETCHER; 

KRISTEN A. CARPENTER; JOHN 

BORROWS; NELL JESSUP NEWTON; 

SETH DAVIS; HEATHER D. 

WHITEMAN RUNS HIM; AMERICANS 

FOR INDIAN OPPORTUNITY; 

ASSOCIATION ON AMERICAN 

INDIAN AFFAIRS; INDIAN LAND 

TENURE FOUNDATION; INDIAN LAW 

RESOURCE CENTER; INDIAN LAND 

WORKING GROUP; KEWA PUEBLO, 

f/k/a Santo Domingo Pueblo; OHKAY 

OWINGEH; PICURIS PUEBLO; 

PUEBLO OF ACOMA; PUEBLO OF 

COCHITI; PUEBLO DE SAN 

ILDEFONSO; PUEBLO OF ISLETA; 

No. 20-2145 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 22, 2023

Christopher M. Wolpert 

Clerk of Court

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PUEBLO OF POJOAQUE; PUEBLO OF 

SANDIA; PUEBLO OF SAN FELIPE; 

PUEBLO OF SANTA ANA; PUEBLO OF 

TESUQUE; TAOS PUEBLO; YSLETA 

DEL SUR PUEBLO; ZUNI TRIBE OF 

THE ZUNI INDIAN RESERVATION; 

ROBERT ALAN HERSHEY; PUEBLO 

OF LAGUNA, 

 Amici Curiae. 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:12-CV-00800-JB-JFR)

_________________________________ 

Christina S. West of Barnhouse Keegan Solimon & West LLP, Los Ranchos de 

Albuquerque, New Mexico (Randolph H. Barnhouse and Tierra N. Marks of Barnhouse 

Keegan Solimon & West LLP, Los Ranchos de Albuquerque, New Mexico; Thomas E. 

Luebben of Law Offices of Thomas E. Luebben, Santa Fe, New Mexico, with her on the 

brief), for Plaintiff-Appellant. 

Mary Gabrielle Sprague, Attorney, Environment and Natural Resources Division, U.S. 

Department of Justice (Todd Kim, Assistant Attorney General, with her on the brief), 

Washington, D.C., for Defendant-Appellee. 

Kirk R. Allen and Elizabeth M. Reitzel, Miller Stratvert, P.A., Albuquerque, New 

Mexico, for Intervenor Defendant-Appellee. 

Zackeree S. Kelin of Davis Kelin Law Firm, LLC, Albuquerque, New Mexico, filed an 

amicus curiae brief on behalf of Plaintiff-Appellant, for Kewa Pueblo (f.k.a. Santo 

Domingo Pueblo), Ohkay Owingeh, Picuris Pueblo, Pueblo of Acoma, Pueblo of Cochiti, 

Pueblo de San Ildefonso, Pueblo of Isleta, Pueblo of Pojoaque, Pueblo of Sandia, Pueblo 

of San Felipe, Pueblo of Santa Ana, Pueblo of Tesuque, Taos Pueblo, Ysleta Del Sur 

Pueblo, The Zuni Tribe of the Zuni Indian Reservation, joined by The Pueblo of Laguna, 

James M. Burson, General Counsel and Government Affairs Director, Pueblo of Laguna, 

Laguna, New Mexico, for the Pueblo of Laguna. 

Gregory P. Barbee of Sheppard Mullin Richter & Hampton, LLP, Los Angeles, 

California, filed an amicus curiae brief on behalf of Plaintiff-Appellant, for Americans 

for Indian Opportunity, Association of American Indian Affairs, Indian Land Tenure 

Foundation, Indian Law Resource Center, and Indian Law Working Group. 

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Robert Alan Hershey, Clinical Professor of Law Emeritus, James E. Rogers College of 

Law, Tucson, Arizona, filed an amicus curiae brief on behalf of Plaintiff-Appellant, for 9 

Professors of Indian Law. 

_________________________________ 

Before PHILLIPS, MORITZ, and EID, Circuit Judges. 

_________________________________ 

PHILLIPS, Circuit Judge. 

_________________________________ 

This case returns to us after remand and trial. It arises from the Pueblo of 

Jemez’s (“the Jemez Pueblo”) action against the United States under the Quiet Title 

Act (“QTA”), 28 U.S.C. § 2409a. At trial, the Jemez Pueblo claimed aboriginal title 

to the entire lands now comprising the Valles Caldera National Preserve (“Valles 

Caldera”), which the United States purchased from private landowners in 2000. 

In an earlier appeal, we reviewed the district court’s ruling dismissing the case 

for lack of subject-matter jurisdiction. We reversed and remanded. Pueblo of Jemez v. 

United States (Jemez I), 790 F.3d 1143, 1170–73 (10th Cir. 2015). We ruled that an 

1860 federal grant of title to private landowners would not extinguish the Jemez 

Pueblo’s claimed aboriginal title. And we remanded for the Jemez Pueblo to establish 

that it once and still had aboriginal title to the lands at issue. 

After a twenty-one-day trial, the district court ruled that the Jemez Pueblo 

failed to establish ever having aboriginal title to the entire lands of the Valles 

Caldera. It concluded that the Jemez Pueblo had failed to show that it ever used the 

entire claimed land to the exclusion of other Indian groups. 

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The Jemez Pueblo moved for reconsideration under Federal Rule of Civil 

Procedure 59(e). But rather than seek reconsideration of its complaint’s QTA claim 

to the entire Valles Caldera, the Jemez Pueblo shrunk its QTA claim into claims of 

title to four discrete subareas within the Valles Caldera: (1) Banco Bonito, (2) the 

Paramount Shrine Lands, (3) Valle San Antonio, and (4) the Redondo Meadows. The 

district court declined to reconsider all but Banco Bonito, on grounds that the Jemez 

Pueblo hadn’t earlier provided the government notice of these claims. Even so, being 

thorough, the court later considered and rejected those three claims on the merits. 

As for Banco Bonito, the district court concluded that the Jemez Pueblo had 

given the government notice of this claim by asserting it in its earlier partialsummary-judgment motion. On reconsideration, the district court approached the 

Jemez Pueblo’s claim to aboriginal title over Banco Bonito in two steps. First, it 

found that the Jemez Pueblo had established aboriginal title to Banco Bonito between 

the early 1400s and 1650. Second, operating on its understanding of Jemez I, the 

court found that the Jemez Pueblo had lost that title sometime after 1650 by not 

continuously maintaining its use to the exclusion of other Indian groups. 

Of the issues raised by the Jemez Pueblo on appeal, we primarily address its 

challenge to the district court’s ruling that the Jemez Pueblo lost aboriginal title to 

Banco Bonito. We conclude that the district court erroneously interpreted Jemez I in 

ruling that the Jemez Pueblo lost its established aboriginal title to Banco Bonito. 

Contrary to the district court’s reading, Jemez I does not set a condition that the 

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Jemez Pueblo use the land to the exclusion of other Indian groups after aboriginal 

title is established. 

In our circuit, both before and after Jemez I, the Jemez Pueblo could lose its 

established aboriginal title to Banco Bonito only if its title had been extinguished or 

abandoned. And the district court concluded that neither of those conditions had 

occurred. So in accordance with longstanding Supreme Court precedent, and by the 

district court’s findings, the Jemez Pueblo still has aboriginal title to Banco Bonito. 

Thus, exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part the 

denial of the Jemez Pueblo’s motion for reconsideration, and we vacate in part and 

remand with instructions to the district court to enter judgment consistent with this 

opinion. We affirm in all other respects. 

BACKGROUND 

I. Factual Background1

 This case presents a dispute over title to the lands within the Valles Caldera—a 

supervolcano crater spanning twelve miles across the Jemez Mountains of New 

Mexico. For over 800 years, many American Indian tribes and pueblos have used the 

Valles Caldera for hunting, gathering, and various cultural and religious practices. 

Redondo Peak, the highest mountain in the Valles Caldera, is a site long used by 

1

 These undisputed facts come from the district court’s thorough Sealed 

Memorandum Opinion, Findings of Fact, Conclusions of Law, and Order and Sealed 

Memorandum Opinion and Order resolving the Jemez Pueblo’s Motion to 

Reconsider. 

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multiple Indian groups for religious pilgrimages. It is home to several shrines, 

including the Jemez Pueblo Shrine.2

The ancestral Jemez first occupied agricultural sites within the Valles Caldera 

in the late 1200s and early 1300s CE.3

 Between 1300 and 1700 CE, the Jemez Pueblo 

built thirty-five villages and thousands of fieldhouses in an area of the Valles Caldera 

known as the northern Rio Jemez watershed. Most relevant here, the Jemez Pueblo 

occupied 100 fieldhouses on Banco Bonito, located in the southwestern corner of the 

Valles Caldera, throughout a 400-year period, but mainly between 1500 and 1650 

CE. The Jemez Pueblo built and exclusively occupied the fieldhouses in Banco 

Bonito—the only Indian tribe ever to do so. 

By 1650, the Jemez Pueblo’s farming of Banco Bonito had largely ceased. But in 

the 350-plus years since then, the Jemez Pueblo has continuously used Banco Bonito in 

accessing Redondo Peak and other parts of the Valles Caldera. In doing so, the Jemez 

Pueblo traverses a trail network through Banco Bonito, to Redondo Peak, and to other 

surrounding areas in the southwestern corner of the Valles Caldera. 

 In 1860, Congress authorized Luis Maria de Baca’s heirs (“Baca heirs”) to select 

up to five square tracts of vacant land totaling nearly 500,000 acres anywhere within the 

New Mexico Territory. See Act of June 21, 1860, Pub. L. No. 36–197, 12 Stat. 71 (“1860 

Act”). The 1860 Act settled a Mexican land-grant dispute with the town of Las Vegas, 

2

 The Jemez Pueblo calls this shrine the Paramount Shrine. 

3

 “CE stands for of the common era” and “is an alternative way of expressing 

the concept denoted by AD.” Jemez I, 790 F.3d at 1148 n.5. 

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New Mexico. The Baca heirs’ first-selected parcel included 99,289 acres in and near the 

Valles Caldera (“Baca Location No. 1”). Baca Location No. 1 has had many corporate 

and individual owners over the proceeding decades. 

In 2000, Congress passed the Valles Caldera Preservation Act (“Preservation 

Act”). Jemez I, 790 F.3d at 1149–50. The Preservation Act authorized the purchase of the 

property interests of the Baca heirs’ successors-in-interest in 94,761 acres in Baca 

Location No. 1.4

 This purchase led to the establishment of the Valles Caldera National 

Preserve. 

II. Procedural History 

In 2012, the Jemez Pueblo sued the United States under the QTA, 28 U.S.C. 

§ 2409a, to quiet title to the Jemez Pueblo’s interest in all of the lands within the Valles 

Caldera National Preserve. Along with quieting title, the Jemez Pueblo sought a judgment 

4

 The Preservation Act was repealed and replaced by the National Defense 

Authorization Act of 2015, Pub. L. No. 113–291, § 3043, 128 Stat. 3292, 3792 

(“National Defense Act”). The National Defense Act provides that the Secretary of 

the Interior, “in consultation with Indian tribes and pueblos, shall ensure the 

protection of traditional cultural and religious sites in the [Valles Caldera] Preserve.” 

Id. § 3043(b)(11)(A), 128 Stat. at 3795. It also provides that the Secretary “shall 

provide access” to such sites by “members of Indian tribes or pueblos” and “may, on 

request of an Indian tribe or pueblo, temporarily close to [the] general public . . . 

specific areas of the Preserve to protect traditional cultural and customary uses” of 

those areas. Id. § 3043(b)(11)(B), 128 Stat. at 3795–96. 

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declaring that it “has the exclusive right to use, occupy and possess” the lands of the 

Preserve under its continuing aboriginal title. App. vol. 1, at 71. 

In 2013, the district court dismissed the suit for lack of subject-matter jurisdiction. 

It held that the 1860 Act extinguished the Jemez Pueblo’s claimed aboriginal title. If so, 

this meant that the Jemez Pueblo had overslept its sole remedy—a pre-1951 claim for 

compensation with the Indian Claims Commission (“ICC”) as provided by the Indian 

Claims Commission Act (“ICCA”).5

 In those circumstances, the district court held that 

sovereign immunity barred the Jemez Pueblo’s QTA claim to the entire Valles Caldera. 

We reversed and remanded for further proceedings. In directing the remand, we 

assumed—subject to the district court’s ultimate say—that the Jemez Pueblo would be 

able to establish aboriginal title to the Valles Caldera before the 1860 Act. With that in 

mind, we held 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.” Id.

at 1170; see also id. at 1158 (“[A]lthough grants by the United States of land in 

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

5

 The ICCA was enacted in 1946. Jemez I, 790 F.3d at 1152. It waived 

sovereign immunity and “created the [ICC], a quasi-judicial body to hear and 

determine all tribal claims against the United States that accrued before August 13, 

1946. 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.” Id. (internal quotations and 

citations omitted). In 1978, Congress abolished the ICC and transferred all remaining 

cases to the Court of Federal Claims. Navajo Tribe of Indians v. New Mexico, 809 

F.2d 1455, 1461 (10th Cir. 1987). 

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which the grantee must respect until aboriginal title has been extinguished by treaty, 

agreement, or other authorized actions of the Indians or Congress.” (citation omitted)). 

We left it on remand for the government, if it chose, to show that federally authorized use 

of Baca Location No. 1 by the Baca heirs had substantially interfered with the Jemez 

Pueblo’s traditional use of the land and thus extinguished the Jemez Pueblo’s aboriginal 

title. See id. at 1168. 

Back in district court after our remand, the Jemez Pueblo moved for partial 

summary judgment that it once and still had aboriginal title to two subareas of the Valles 

Caldera—Banco Bonito and Redondo Mountain. The district court denied this motion 

after finding genuine issues of material fact about whether the Jemez Pueblo had ever 

used those areas to the exclusion of other Indian groups. 

Next, the district court held a twenty-one-day bench trial to determine whether the 

Jemez Pueblo had proved its QTA claim of aboriginal title to the entire Valles Caldera. 

There, the district court examined whether the Jemez Pueblo had established and 

continuously maintained aboriginal title to the lands of the Valles Caldera. 

After trial, the district court issued a 530-page memorandum opinion. It concluded 

that though the Jemez Pueblo had met its burden to show continuous and actual use of the 

entire lands of the Valles Caldera for a long time, the Jemez Pueblo had failed to show 

use to the exclusion of other Indian groups. In support, the court noted that “for many 

centuries, non-Jemez Pueblo American Indians, including the ancestors of numerous 

modern Pueblos and federally recognized Tribes, wandered throughout and actually used 

the Valles Caldera . . . to sustain their aboriginal communities in ways substantially 

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similar to Jemez Pueblo.” App. vol. 4, at 258. So, because it ruled that the Jemez Pueblo 

had never used the entire Valles Caldera to the exclusion of other Indian groups, the 

district court held that the Jemez Pueblo had never possessed aboriginal title to the entire 

area. 

The Jemez Pueblo moved for reconsideration. But instead of asking the court to 

reconsider whether the Jemez Pueblo had aboriginal title to the entire Valles Caldera, it 

departed from its pleaded QTA claim and asked the court to reconsider a narrower 

question—whether the Jemez Pueblo had aboriginal title to four subareas within the 

Valles Caldera: (1) Banco Bonito; (2) Redondo Meadows; (3) the western two-thirds of 

the Valle San Antonio; and (4) the Paramount Shrine Lands. The Paramount Shrine 

Lands, according to the Jemez Pueblo, encompass the Jemez Pueblo Shrine on Redondo 

Peak, the Underworld Pilgrimage Trail leading to the Jemez Pueblo Shrine, and three 

springs along the trail. 

The district court denied in part and granted in part the Jemez Pueblo’s motion for 

reconsideration in a 192-page memorandum opinion. Under Federal Rule of Civil 

Procedure 59(e), the district court ruled that it could not reconsider the Jemez Pueblo’s 

claims to the Redondo Meadows, part of the Valle San Antonio, and the Paramount 

Shrine Lands. This was so, the court said, because the Jemez Pueblo had pleaded and 

litigated a single claim for the entire Valles Caldera, not for any discrete areas. This 

meant that the Jemez Pueblo had failed to put the government on notice of its claims to 

three of the discrete areas (those other than Banco Bonito). In contrast, the court viewed 

the Jemez Pueblo’s claim to Banco Bonito as one tried by consent because the Jemez 

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Pueblo’s partial-summary-judgment motion had put the government on notice of that 

claim. 

Even so, being thorough, the district court resolved the merits of the Jemez 

Pueblo’s claims to the other three subareas. It held that the Jemez Pueblo could not 

establish that it ever had aboriginal title to the western two-thirds of Valle San Antonio or 

the Redondo Meadows because it had never used those subareas to the exclusion of other 

Indian groups. It further held that the Jemez Pueblo did not have aboriginal title to the 

features making up the Paramount Shrine Lands—the Jemez Pueblo Shrine, the trail, and 

the three springs—because the Jemez Pueblo had failed to establish that it ever had 

aboriginal title to the land surrounding those features. 

 The district court also rejected the Jemez Pueblo’s claim to Banco Bonito. It began 

by concluding that the Jemez Pueblo had established “aboriginal title to Banco Bonito 

during the time it heavily farmed the area between the early fifteenth century and 1650.” 

App. vol. 6, at 183. In deciding whether the Jemez Pueblo had ever lost that title, the 

court noted that even after 1650, when the Jemez Pueblo ceased farming Banco Bonito, 

“[1] another Tribe did not conquer Jemez Pueblo, [2] the United States did not extinguish 

title to any land on the Banco Bonito, and [3] Jemez Pueblo also did not completely 

abandon its Banco Bonito use.” Id. at 184. Importantly, the district court emphasized that 

“[i]f Jemez Pueblo only had to show that it possessed aboriginal title at one point and 

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then never abandoned the land or had it extinguished, the Court would conclude that 

Jemez Pueblo has established aboriginal title to Banco Bonito.” Id. at 183. 

Even so, believing Jemez I compelled its result, the district court denied the Jemez 

Pueblo’s claim of aboriginal title to Banco Bonito. The court ruled that the Jemez Pueblo 

lost its aboriginal title after 1650 by not maintaining exclusive use of Banco Bonito to the 

exclusion of other Indian groups. In that regard, the district court found that “after 1650, 

with a much reduced presence on Banco Bonito and a smaller population, there is no 

evidence that Jemez Pueblo was able to walk through Banco Bonito ‘to the exclusion of 

other Indian groups,’ and there is some evidence that it could not.” Id. at 185 (quoting 

Jemez I, 790 F.3d at 1166). Though finding that the Jemez Pueblo had been the “primary 

Indian group using the Banco Bonito over several centuries,” the court further noted that 

“the record also establishes that the Banco Bonito was ‘wandered over by many tribes,’ 

United States v. Pueblo of San Ildefonso, [513 F.2d 1383, 1394 (Ct. Cl. 1975)], and that 

Jemez Pueblo did not have the right or the power to expel any of these Indian groups.” Id.

at 196. Thus, the district court held that sometime between 1650 and 1850, the Jemez 

Pueblo lost its aboriginal title to Banco Bonito.6

DISCUSSION 

The Jemez Pueblo timely appealed the district court’s order dismissing its QTA 

claim for the entire Valles Caldera, as well as its order on the Jemez Pueblo’s motion for 

6

 The district court granted the Jemez Pueblo’s request to delete one factual 

finding and amend three conclusions of law from the post-trial order. But none of 

those changes affected the court’s resolution of the Jemez Pueblo’s aboriginal-title 

claims. 

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reconsideration of the four subareas. But on appeal, the Jemez Pueblo has abandoned its 

claim to the entire Valles Caldera and contests the reconsideration ruling for just two of 

the subareas—Banco Bonito and the Paramount Shrine Lands. The Jemez Pueblo 

presents two issues about these two subareas meriting discussion: (1) whether the district 

court erred in concluding that the Jemez Pueblo has lost its established aboriginal title to 

Banco Bonito and (2) whether the district court erred in concluding that Rule 59(e) barred 

its reconsideration of its claim to the Paramount Shrine Lands and in its alternative ruling 

that the Jemez Pueblo does not have aboriginal title to the Paramount Shrine Lands.7

 

After explaining the applicable standard of review and providing an overview of 

the law of aboriginal title, we address each issue in turn. 

I. Standard of Review 

We review a district court’s conclusions of law made after a bench trial de novo 

and its findings of fact for clear error. Leathers v. Leathers, 856 F.3d 729, 762 (10th Cir. 

2017).

We review rulings on Rule 59(e) motions for an abuse of discretion. Nelson v. City 

of Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019). “Under this deferential standard of 

7

 The Jemez Pueblo raises two other issues. First, it contends that the district 

court erred by excluding certain tribal oral-tradition testimony as hearsay and by 

stating that it would have given any such testimony no weight anyway. Second, it 

argues that the district court erred in failing to apply “Indian canons of construction” 

when interpreting Jemez I, when weighing circumstantial evidence, and when 

evaluating the Jemez Pueblo’s claim to the Paramount Shrine Lands. But because the 

resolution of these issues is unnecessary for the disposition of this appeal, we do not 

reach them. Orr v. City of Albuquerque, 417 F.3d 1144, 1154 (10th Cir. 2005). 

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review, we won’t disturb the district court’s ruling unless it was arbitrary, capricious, 

whimsical, or manifestly unreasonable.” Eaton v. Pacheco, 931 F.3d 1009, 1027 (10th 

Cir. 2019) (citation and internal quotations omitted); see also United States v. McComb, 

519 F.3d 1049, 1053 (10th Cir. 2007) (noting that under the abuse-of-discretion standard 

we “defer to the district court’s judgment so long as it falls within the realm of these 

rationally available choices”). But an error of law per se constitutes an abuse of 

discretion. United States v. Chavez-Meza, 854 F.3d 655, 657 (10th Cir. 2017).

II. Aboriginal Title 

The Supreme Court first recognized the aboriginal right of occupancy—known 

now as aboriginal title—in Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823).8

 Since 

then, the Court has repeatedly affirmed that a tribe’s right of occupancy “is as sacred and 

as securely safeguarded as is fee simple absolute title.” United States v. Shoshone Tribe 

of Wind River Rsrv., 304 U.S. 111, 116–17 (1938); see also Oneida County v. Oneida 

Indian Nation of N.Y. State, 470 U.S. 226, 235 (1985); United States v. Santa Fe Pac. R. 

Co., 314 U.S. 339, 345 (1941); Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746 (1835). 

Whether a tribe has aboriginal title to the land it claims is a fact question. Jemez I, 

790 F.3d at 1165. To establish aboriginal title, the tribe has the burden to “show actual, 

exclusive, and continuous use and occupancy for a long time of the claimed area.” Id.

(internal citation and quotations omitted). To meet the “exclusive use” requirement, it 

8

 We provided a detailed background of the history of aboriginal-title law in 

Jemez I, 790 F.3d at 1152–61. 

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must prove “that it used and occupied the land to the exclusion of other Indian groups.” 

Id. (emphasis removed and citation omitted).9

 And to meet the “actual” and “continuous 

use” requirements, it must show that, for a long time,10 its people have “use[d] the 

[claimed land] for traditional purposes, including hunting, grazing of livestock, gathering 

of medicine and of food for subsistence, and the like.” Id. at 1166. 

The Supreme Court has emphasized that a tribe’s aboriginal title does not require 

an affirmative act of the sovereign for its continued viability. Santa Fe, 314 U.S. at 347. 

Once established, aboriginal title “endures until extinguished or abandoned.” Lipan 

Apache Tribe v. United States, 180 Ct. Cl. 487, 492 (1967); see also Oneida Indian 

Nation of N.Y. State v. Oneida County, 414 U.S. 661, 667 (1974) (aboriginal title is “good 

9

 The Court of Federal Claims has identified three exceptions to the general 

rule of exclusive use and occupancy: (1) the joint-and-amicable-use exception; (2) 

the dominated-use exception; and (3) the permissive-use exception. Ala.-Coushatta 

Tribe of Tex. v. United States, No. 3-83, 2000 WL 1013532, at *16 (Fed. Cl. June 19, 

2000). Under the joint-and-amicable-use exception, two or more Indian tribes may 

maintain exclusive use of an area if the tribes have a strong political and social 

alliance. Id. Under the dominated-use exception, an Indian tribe may claim exclusive 

use where it “culturally assimilates another tribe or otherwise exercises complete 

dominion over scattered groupings of other Indians that appear few and far between 

in the claim area.” Id. at *17 (internal quotations omitted). And under the permissiveuse exception, other Indian tribes may wander over portions of the claimant tribe’s 

land without defeating the exclusive-use requirement so long as the other groups’ 

presence was with the claimant tribe’s permission. Id. Our court has not yet 

considered these exceptions. 

 

10 In Jemez I, we noted that to meet the “for a long time” requirement to 

establish aboriginal title, the Jemez Pueblo needed to show continuous use of the 

Valles Caldera for “hundreds of years.” 790 F.3d at 1166. In noting that, we did not 

mean to require continuous and actual use for “hundreds of years.” Rather, we 

harkened to the complaint, which alleges aboriginal title to the Valles Caldera for 

over 800 years. See App. vol. 1, at 59–60. We clarify this to avoid future confusion. 

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against all but the sovereign” and “[can] be terminated only by sovereign act”); Williams 

v. City of Chicago, 242 U.S. 434, 437–38 (1917) (holding that any claim to aboriginal 

title was lost through the claimant tribe’s failure to continuously occupy the claimed 

area); Mitchel, 34 U.S. at 713 (noting that Indian groups’ “rights to its exclusive 

enjoyment in their own way and for their own purposes were as much respected, until 

they abandoned them, made a cession to the government, or an authorized sale to 

individuals”); Seneca Nation of Indians v. New York, 206 F. Supp. 2d 448, 518 

(W.D.N.Y. 2002) (“Aboriginal title can either be retained by the tribe, abandoned by the 

tribe, or extinguished by the sovereign.”), aff’d, 382 F.3d 245 (2d Cir. 2004); Ala.-

Coushatta Tribe, 2000 WL 1013532, at *43 (“[A]boriginal title endures in perpetuity 

until it is appropriately extinguished by the sovereign or abandoned by the tribe.”); 

Wichita Indian Tribe v. United States, 696 F.2d 1378, 1382 (Fed. Cir. 1983) (concurring 

with Lipan Apache Tribe in that “when a tribunal admits that a tribe holds aboriginal title 

to a tract of land, that tribunal cannot dismiss the case without a showing of abandonment 

or extinguishment”); Cohen’s Handbook of Federal Indian Law § 15.04, at 1000 (Nell 

Jessup Newton et al. eds., 2012) [hereinafter Cohen’s Handbook] (“Until title is 

extinguished, a tribe has the collective right to occupy and use its land as it sees fit.”). 

Only the sovereign may extinguish aboriginal title, whether “by treaty, by the 

sword, by purchase, by the exercise of complete dominion adverse to the right of 

occupancy, or otherwise.” Santa Fe, 314 U.S. at 347. Extinguishment may also result 

indirectly through “white settlement and use, authorized by the federal government both 

statutorily and in fact.” Jemez I, 790 F.3d at 1166 (citing Pueblo of San Ildefonso, 513 

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F.2d at 1393). But “[n]o matter the method used, the sovereign’s intent to extinguish 

must be clear and unambiguous.” United States v. Abouselman, 976 F.3d 1146, 1156 

(10th Cir. 2020). 

For abandonment to result in the loss of aboriginal title, it must be voluntary. See 

Williams, 242 U.S. at 437–38; Cohen’s Handbook § 1509[1][b], at 1053 (noting that 

because aboriginal title is based on evidence of continuous possession, “a small number 

of cases have held that original Indian title can be lost through abandonment, but only if 

that abandonment is voluntary”). 

III. Banco Bonito 

The Jemez Pueblo first argues that the district court abused its discretion in ruling 

that after 1650 the Jemez Pueblo lost its established aboriginal title to Banco Bonito by 

not using the area to the exclusion of other Indian groups. We agree that the district 

court’s ruling was legal error and thus an abuse of discretion. 

Because the district court premised its ruling on its interpretation of Jemez I, it 

helps to review that decision and explain why we disagree with the district court. We use 

block quotes because the precise language of Jemez I is important. 

In Jemez I, this court proceeded step by step with the government’s arguments. 

First, we rejected the government’s position that the 1860 Act extinguished the Jemez 

Pueblo’s asserted aboriginal title to the Valles Caldera: 

Absent clear and unambiguous intent by Congress to allow extinguishment 

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

of 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. The government cites 

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us to no language in the 1860 Act to show the unambiguous intent of 

Congress to extinguish existing Indian title. 

790 F.3d at 1162–63 (footnote omitted). But we further noted that the Baca-grant ruling 

did not necessarily mean that the Jemez Pueblo still maintained its asserted aboriginal 

title: 

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 Pueblo maintained aboriginal possession at the time. 

Id. at 1163. 

 Next, we addressed the government’s alternative argument to its Baca-grant 

argument: 

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. 

Id. at 1165. We rejected the government’s assertion by noting that “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[.]” 

Id. For the simultaneous use to defeat the Jemez Pueblo’s aboriginal title, the district 

court would have to find that the Baca heirs’ use substantially impaired the Jemez 

Pueblo’s right to use and occupancy. See id. at 1168. 

 We then turned to the remand. In the paragraph most at issue on appeal, we 

commented on the two analytical steps remaining in the district court—(1) whether the 

Jemez Pueblo could establish aboriginal title to the Valles Caldera by its actual, 

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continuous, and exclusive use of the land for a long time and (2) if so, whether the Jemez 

Pueblo maintained that aboriginal title until it filed its QTA claim: 

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

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”). 

Id. at 1165–66. 

The initial part of the first sentence ties to the immediately preceding discussion 

on simultaneous use by the Jemez Pueblo and the Baca heirs. This sentence declares an 

obvious point—that the Jemez Pueblo’s QTA claim would fail if the Jemez Pueblo had 

not actually used its right to occupancy continuously from 1860 through its filing of the 

QTA claim in 2000. And this sentence notes that the district court must resolve this fact 

question on remand. If the Jemez Pueblo ceased using the claimed lands before 2000, it 

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could not even show continuous, simultaneous use with the Baca heirs. Its abandonment 

of the lands would end its claim to aboriginal title altogether. See Cohen’s Handbook 

§ 1509[1][b], at 1053 (aboriginal title may be lost in the absence of continuous 

possession). 

 The latter part of the first sentence notes that on remand the Jemez Pueblo “will 

have the opportunity to present evidence to support its claim.” Pueblo, 790 F.3d at 1165. 

Here lies the fork in the interpretive roadway. In deciding what “its claim” means, we 

must remember that in its complaint, the Jemez Pueblo pleaded a QTA claim. The Jemez 

Pueblo needed to support that claim in district court. In the upcoming proceeding after 

remand, the Jemez Pueblo would need to show two things to support its QTA claim: 

(1) that it once held aboriginal title to Banco Bonito11 and (2) that it continued to hold it. 

 We began the second sentence, “To do so.” To do what? To present evidence to 

support its QTA claim. The Jemez Pueblo would do that by presenting evidence to 

support the two requirements above. As Jemez I says next, the Jemez Pueblo would need 

to “show actual, exclusive, and continuous use and occupancy for a long time of the 

claimed area.” Id. (internal quotations and citation omitted). Rejecting a government 

argument, Jemez I cemented that the “exclusive” use and occupancy part of the test 

applied to establishing aboriginal title, not maintaining it: “[T]he ‘exclusive’ part of the 

test meant only that in order to establish aboriginal title, a tribe ‘must show that it used 

11 We expressed no opinion on whether on remand the Jemez Pueblo could 

establish aboriginal title to the Valles Caldera. Jemez I, 790 F.3d at 1163 n.15. 

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and occupied the land to the exclusion of other Indian groups.’” Id. at 1166 (citation 

omitted; first emphasis added). Reinforcing this point, Jemez I cites a string of cases 

applying the test for establishing aboriginal title.12

The district court never got to the interpretive fork of Jemez I—its use of the term 

“its claim.” Instead, rearranging phrases from Jemez I, it analyzed whether the Jemez 

Pueblo had maintained “‘actual[,] exclusive, and continuous use and occupancy for a 

long time of the claimed area,’ ‘in 1860 and thereafter.’” App. vol. 6, at 185 (emphasis 

added) (quoting Jemez I, 790 F.3d at 1165). The district court never acknowledged that 

the Jemez Pueblo had two required showings before the Jemez Pueblo could satisfy the 

title-holding requirement of its QTA claim. The district court apparently believed that the 

Jemez Pueblo couldn’t legally exercise its right of aboriginal occupancy without 

reestablishing its already-established aboriginal title.13 This rewrites Jemez I, which did 

not adopt a use-it-exclusively-or-lose-it-entirely rule. 

 Had Jemez I erected such a stringent hurdle for the Jemez Pueblo and future Indian 

12 And in considering whether the Jemez Pueblo could establish aboriginal 

title, we rejected the government’s view that conduct of the Baca heirs would matter. 

See Jemez I, 790 F.3d at 1166–67 (“The government contends the Jemez Pueblo 

cannot prove ‘exclusive’ use because the Baca heirs used the land.”). By then, we had 

already rejected the government’s argument that simultaneous use between the Jemez 

Pueblo and the Baca heirs “is inconsistent with the Pueblo’s aboriginal title.” Id. at 

1165. 

13 As mentioned, that would require the Jemez Pueblo to show that it had the 

right or power to expel other Indian groups wandering onto land for which it had 

already established aboriginal title. Elsewhere, the court voiced disapproval of a 

power-to-expel requirement: 

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tribe litigants to overcome, it would have upended most aboriginal titles. But it did not. 

After Jemez I, as before it, a tribe seeking to quiet title based on asserted aboriginal title 

must meet two requirements. First, the tribe must establish aboriginal title by showing 

actual, exclusive, and continuous use and occupancy for a long time. Native Vill. of Eyak, 

688 F.3d at 622; see also Abouselman, 976 F.3d at 1156. Second, the tribe must show 

that after establishment it did not lose its aboriginal title either through (1) 

extinguishment by the sovereign or (2) voluntary abandonment. See Wichita, 696 F.2d at 

1382 (“[W]hen a tribunal admits that a tribe holds aboriginal title to a tract of land, that 

tribunal cannot dismiss the case without a showing of abandonment or 

extinguishment[.]”); Abouselman, 976 F.3d at 1156 (“Once established . . . aboriginal 

title remains until it is extinguished, and as against any but the sovereign, original Indian 

If it were writing on a clean slate, the Court believes that Tribes and Pueblos 

should not have to demonstrate that they had the power to exclude other 

completely hypothetical Indian groups that wandered onto their land. This 

requirement would have allowed the United States to seize the land of any 

isolated Tribe if the Tribe was relatively weak, thereby reserving aboriginal 

title only to relatively powerful tribes. Requiring proof of the power to 

exclude is at odds with foundational aboriginal title cases, which 

unreservedly protect lands Indian groups exclusively occupy. See Cherokee 

Nation v. Georgia, [30 U.S. 1, 32 (1831)] (stating that “the Indians are 

acknowledged to have an unquestionable, and heretofore unquestioned, right 

to the land they occupy, until that right shall be extinguished by a voluntary 

cession to our government”); Johnson v. M’Intosh, 21 U.S. at 574 (stating 

that aboriginal title makes a Tribe’s members “the rightful occupants of the 

soil, with a legal as well as just claim to retain possession of it”). 

App. vol. 6, at 173. 

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title was accorded the protection of complete ownership.” (cleaned up)).14

Though aboriginal title grants a tribe only “a right of occupancy,” “not a property 

right,” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955), the Supreme 

Court has repeatedly stressed that “[t]he right of perpetual and exclusive occupancy of 

the land is not less valuable than full title in fee.” Shoshone Tribe, 304 U.S. at 116 

(emphasis added); see also Mitchel, 34 U.S. at 746 (affirming the notion that aboriginal 

title is “as sacred as the fee simple of the whites”). A continuing-exclusivity requirement 

would conflict with this principle, as it would almost certainly keep a tribe from 

establishing aboriginal title into the modern era. The options available—violence against 

other trespassing tribes (likely on land owned by the United States or white settlers) or 

filing a civil suit against a trespassing tribe—would be unrealistic for obvious reasons.15 

The government argues that the Jemez Pueblo could meet its proposed exclusiveuse requirement from 1650 to 2000 “by dominating other tribes that enter the claimed 

area without actually attacking them.” Response Br. 34. This so-called dominant-use 

14 The district court and the Jemez Pueblo raise the possibility that a tribe loses 

aboriginal title if another tribe conquers it. That may be so, but as such conquering 

has not been alleged here, we need not discuss it. 

15 We note that until the middle of the twentieth century, “few Indian tribes 

maintained any semblance of a formal court system.” Oliphant v. Suquamish Indian 

Tribe, 435 U.S. 191, 197 (1978), superseded by statute on other grounds as stated in 

United States v. Lara, 541 U.S. 193, 207 (2004). And though the Supreme Court held 

in 1850 “[t]hat an action of ejectment could be maintained on an Indian right to 

occupancy and use,” that case and those that affirmed its sentiment were referring to 

a tribe’s right to sue trespassing white settlers, not other Indians. Marsh v. Brooks, 49 

U.S. (8 How.) 223, 232 (1850). Further, even if the courts had been open to the 

Jemez Pueblo when its use allegedly became non-exclusive as to other tribes, it’s far 

from clear that the courts would have entertained suits from them. 

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exception to the exclusivity requirement recognizes that when another tribe uses the 

claimed area in common with the claimant tribe, proof of the claimant tribe’s ability to 

exclude other tribes from the area preserves its exclusive use of the land even if not 

exercised. See United States v. Seminole Indians of Fla., 180 Ct. Cl. 375, 383–86 (1967) 

(holding that the Seminoles demonstrated their domination of a claimed area by “simply 

absorbing . . . into their own ranks” the “scattered groupings” of other tribes). But the 

government itself admits that this exception is subject to a high standard and rarely 

succeeds. And, in any event, the government fails to cite a case applying the dominantuse exception after a tribe long since established aboriginal title. 

Moreover, it strikes us as altogether unjust for the date of the alleged government 

interference to serve as a triggering point for a required re-establishment of aboriginal 

title—or any date after initial establishment for that matter. See Santa Fe, 314 U.S. at 347 

(explaining that aboriginal title preexists the formation of the United States and requires 

no affirmative act of the sovereign for its continued viability). A simple hypothetical 

illustrates why. Let’s say that Tribe X established aboriginal title by proving actual, 

exclusive, and continuous use and occupancy of a tract of land between 1700 and 1900. 

Between 1900 and 1902, Tribe X continued to use the land, but Tribe Z began to traverse 

over the land—peacefully, but without Tribe X’s permission or knowledge. In 1902, the 

United States purchased the land from private owners to create a national park without 

extinguishing Tribe X’s claimed aboriginal title. Under a continuing-exclusivity-of-use 

rule, Tribe Z’s wanderings between 1900 and 1902 would deprive Tribe X of its 

aboriginal title absent constant monitoring of its borders and the use of violence to expel 

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Tribe Z intruders. 

The government cites a passage in Jemez I rejecting its position that white-settler 

activity plays a role in assessing the establishment of aboriginal title. It now seeks to rely 

on three cases we cited there as having evaluated an “exclusive-use requirement” 

continuing past the tribe’s establishment of aboriginal title and through the date of the 

alleged government interference. Response Br. 30.16 But none of these out-of-circuit 

cases persuade us of any such requirement. 

The first case is Pueblo of San Ildefonso, an appeal heard by the United States 

Court of Claims from the ICC. 513 F.2d 1383. The primary issue on appeal was when the 

government extinguished established aboriginal title. Id. at 1386–92. The secondary issue 

was whether two tribes could jointly occupy an area of land and still meet the exclusiveuse requirement for the establishment of aboriginal title. Id. at 1392–96. On the second 

issue, the court answered affirmatively, noting that the two claimant tribes had “jointly 

used and occupied the disputed 8,600 acre tract for a long period of time.” Id. at 1395. 

Thus, it concluded that the tribes had “joint aboriginal title.” Id. This case is ultimately 

not germane to the Jemez Pueblo’s appeal. That is because the court never analyzed when 

16 The government cites three other cases in support of this requirement, but 

none of them discuss exclusive use against other Indian groups and are thus 

inapposite. See United States v. Alcea Band of Tillamooks, 329 U.S. 40, 44 (1946) 

(explaining that the date of extinguishment is “the date the Indians lose the land 

through treaty or otherwise”); United States v. Dann, 873 F.2d 1189, 1199–1200 (9th 

Cir. 1989) (noting that the Indian tribe must continue to occupy the claimed area until 

the date of extinguishment); Sac & Fox, 383 F.2d at 998–99 (noting that an Indian 

group may initially establish aboriginal title at any point before the date of 

extinguishment). 

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aboriginal title was first established, or whether that title could be lost post-establishment

through the trespass of other tribes. 

Next, the government cites Zuni Tribe of New Mexico v. United States, 12 Cl. Ct. 

607 (1987). In Zuni Tribe, the United States Claims Court determined that the Zuni had 

established aboriginal title “from time immemorial beginning as early as 5,000 B.C. (at 

the latest) and continuing through and including at least 1846.” Id. at 641. The Zuni 

sought compensation for “takings” committed by the United States and other tribes 

between 1846 and 1939. In the present appeal, the government emphasizes (1) that the 

Zuni Tribe court evaluated whether other tribes had used the claimed area before the date 

of the asserted “takings” and (2) that the court concluded that the presence of other 

Indians on the lands did not “detract[] from the exclusivity of the Zuni use and 

ownership.” Id. We acknowledge that the case supports the government’s position. But in 

conducting a post-establishment exclusive-use analysis, we note that the Zuni Tribe court 

put the Zuni’s claim to aboriginal title to a far greater test than the Supreme Court has. 

We have not and will not.17 

Last, the government cites Wichita, a case from the Federal Circuit. 696 F.2d 

1378. In Wichita, the United States Claims Court determined that the Wichita Tribe had 

17 Somewhat relatedly, the government briefly argues that if “first use prevails 

unless the opposing party proves complete abandonment or extinguishment, Zia 

[another tribe] would hold aboriginal title to Banco Bonito as its use preceded 

Jemez’s use, continued through 2000, and no sovereign extinguished its aboriginal 

title.” Resp. Br. 32 (internal citation omitted). But this isn’t about “first use.” As the 

district court noted when it rejected this argument, “whether a Tribe was the first 

occupant of certain land is ultimately irrelevant to whether the Tribe established 

aboriginal title to the land.” App. vol. 6, at 186 n.85. 

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established aboriginal title to land in Oklahoma. But it ultimately “concluded that a 

general abandonment by the Wichitas of perhaps most of the claimed lands in Oklahoma 

effectively prevented them from recovering for the loss of any lands there.” Id. at 1380. 

The Federal Circuit deemed the Claims Court’s abandonment analysis incomplete. Id.

Thus, it remanded the case for a more thorough analysis of abandonment and an exact 

“determination of the extent of aboriginal title to lands in Texas and Oklahoma.” Id. at 

1386. 

The government relies on several portions of Wichita’s “Abandonment” section in 

which the Federal Circuit may suggest, without supporting authority, that a tribe can lose 

aboriginal title by abandonment or extinguishment if another tribe establishes settlements 

on the claimed land or if the claimant tribe is “forced to share portions of [the] area with 

others.” Id. at 1382–83. But as already explained in depth, another tribe’s actions are 

irrelevant to the abandonment and extinguishment analyses. They figure only in the 

establishment of aboriginal title. Thus Wichita—and its imprecise language—does not 

aid the government. 

In sum, because the district court found (1) that the Jemez Pueblo established 

aboriginal title to Banco Bonito by 1650 and (2) that its aboriginal title hasn’t been 

abandoned by the Jemez Pueblo or extinguished by the United States, the Jemez Pueblo 

continues to hold aboriginal title to Banco Bonito.18 See App. vol. 6, at 183 (“If Jemez 

18 In its reply brief, the Jemez Pueblo argues that in holding that it lost title to 

Banco Bonito, the district court “violates the Indian Non-Intercourse Act, 25 U.S.C. 

§ 177, which prohibits any ‘conveyance of lands, or any title or claim thereto . . . 

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Pueblo only had to show that it possessed aboriginal title at one point and then never 

abandoned the land or had it extinguished, the Court would conclude that Jemez Pueblo 

has established aboriginal title to Banco Bonito.”). 

In reading Jemez I otherwise, the district court abused its discretion. We therefore 

reverse the district court on this issue and remand with instructions to enter judgment 

consistent with this opinion. 

IV. Paramount Shrine Lands 

We move next to the Jemez Pueblo’s argument that the district court abused its 

discretion in denying its Rule 59(e) motion for reconsideration as to its claim to the 

Paramount Shrine Lands. This argument is meritless. 

“Grounds warranting a motion to reconsider include (1) an intervening change in 

the controlling law, (2) new evidence previously unavailable, and (3) the need to correct 

clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 

1012 (10th Cir. 2000). So a motion for reconsideration is properly granted only when 

“the court has misapprehended the facts, a party’s position, or the controlling law.” Id.

“But once the district court enters judgment, the public gains a strong interest in 

protecting the finality of judgments.” Nelson, 921 F.3d at 929. Because of that strong 

interest, we have circumscribed when district courts may grant motions for 

reconsideration. We’ve repeatedly said that these motions are “not appropriate to revisit 

unless the same be made by treaty or convention entered into pursuant to the 

Constitution.’” Reply Br. 12. But the Jemez Pueblo failed to make this argument in 

its opening brief, so we decline to consider it. See United States v. Mullikin, 758 F.3d 

1209, 1210 n.2 (10th Cir. 2014). 

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issues already addressed or advance arguments that could have been raised in prior 

briefing.” Id. (quoting Servants of Paraclete, 204 F.3d at 1012). The Supreme Court has 

emphasized the same point: “Rule 59(e) permits a court to alter or amend a judgment, but 

it ‘may not be used to relitigate old matters, or to raise arguments or present evidence that 

could have been raised prior to the entry of judgment.’” Exxon Shipping Co. v. Baker, 

554 U.S. 471, 485 n.5 (2008) (citation omitted).

The district court characterized the Jemez Pueblo’s claim to the subarea of the 

Paramount Shrine Lands (as well as its claim to the Redondo Meadows and Valle San 

Antonio) as “arguments that could have been but were not raised” before the court issued 

judgment as to all of the Valles Caldera. App. vol. 6, at 163 (quoting Banister v. Davis, 

140 S. Ct. 1698, 1708 (2020)). The district court noted that in the seven years of litigating 

its claim pre-final judgment, the Jemez Pueblo had never argued its entitlement “to each 

discrete cultural polygon in the Valles Caldera and instead premised its aboriginal title 

claims to the Valles Caldera as a whole.” Id.

The court rejected the Jemez Pueblo’s contention that through its complaint, its 

interrogatory answers, and the depositions the government took of Jemez witnesses, the 

government was on notice of its claims to the subareas and thus tried them by consent. In 

the district court’s view, the complaint’s references to the subareas were too general to 

provide notice, particularly as the complaint was framed as a challenge to the entire 

Valles Caldera. As for the Jemez Pueblo’s interrogatory answers, the district court 

acknowledged that they reference the geographic areas that the Jemez Pueblo sought in 

its motion for reconsideration. But the court found that insufficient for notice. That is 

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because the answers “respond to a limited question within the dispute that the Complaint 

frames” and do not suggest that the Jemez Pueblo would later seek title to certain 

subareas. Id. at 167. And as for the depositions, the court determined that they failed to 

provide notice because no deposition cited by the Jemez Pueblo included discussion of 

the subareas at issue.19

The district court further noted that Federal Rule of Civil Procedure 15(b)(2) did 

not permit the reconsideration of the Jemez Pueblo’s claim to the Paramount Shrine 

Lands. Rule 15(b)(2) provides that issues not raised by the pleadings may be tried by the 

parties’ express or implied consent. But the district court explained that Rule 15(b)(2) 

doesn’t allow a plaintiff to reframe its claim after the fact. And to allow the Jemez Pueblo 

to do that in this case would prejudice the United States, which had structured its 

opposition based on the pleadings that sought title to the entire Valles Caldera. 

We agree with the district court’s thorough analysis on this issue. The Jemez 

Pueblo centered its claim and its request for relief in its complaint on the entire Valles 

Caldera—not discrete subparts. App. vol. 1, at 71 (“The aboriginal Indian title and right 

of possession, use and occupancy of the lands of the Valles Caldera National Preserve 

remain in Jemez Pueblo.”); id. at 71–72 (“Wherefore, Plaintiff prays that the court grant 

19 The Jemez Pueblo contends that the district court erroneously limited its 

analysis of the notice it gave the government to its prayer for relief in its complaint and 

required the Jemez Pueblo to allege “precise subareas within the great area.” Opening Br. 

36–37. But as shown by our discussion, the district court did no such thing. Rather, it 

considered whether the Jemez Pueblo had provided notice of this claim in its complaint 

or during discovery. In addition, we note that the district court did conclude that the 

Jemez Pueblo provided notice to the government of its claim to Banco Bonito in its 

motion for partial summary judgment.

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relief as follows: 1. Enter a judgment . . . that Plaintiff has the exclusive right to use, 

occupy and possess the lands of the Valles Caldera National Preserve pursuant to its 

continuing aboriginal Indian title to such lands.”). And though the Jemez Pueblo used its 

motion for summary judgment as an opportunity to seek title specifically to Banco Bonito 

and Redondo Mountain as a whole, for unknown reasons it did not include the specific 

features of the Paramount Shrine Lands in that request. Based on the Jemez Pueblo’s 

Complaint and how the pretrial-motion practice transpired, the district court correctly 

considered and adjudicated the Jemez Pueblo’s claim to the entire Valles Caldera—

nothing else. 

In response to our questions at oral argument, the Jemez Pueblo submitted a Rule 

28(j) Letter with citations in support of its assertion that the government had notice of its 

claim to the Paramount Shrine Lands pretrial. After independently reviewing those 

citations, we remain unconvinced that the district court’s conclusion that the government 

lacked appropriate notice of the Jemez Pueblo’s claim to the Paramount Shrine Lands 

was “arbitrary, capricious, whimsical, or manifestly unreasonable.” Eaton, 931 F.3d at 

1027. The same is true of the district court’s conclusion that the government would be 

prejudiced if after many years of discovery and litigation aimed at challenging the Jemez 

Pueblo’s claim to the entire Valles Caldera, it would be forced to renew, redouble, and 

refocus its discovery efforts for a distinct cause of action. We thus affirm the district 

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court’s denial of the Jemez Pueblo’s motion for reconsideration of its title to the 

Paramount Shrine Lands. 

We also briefly address one other concern related to the scope of this issue. In 

a footnote in its reply brief, the Jemez Pueblo argues that the government incorrectly 

frames the Jemez Pueblo’s appeal of this issue as one solely concerning the district 

court’s denial of its Rule 59(e) motion for reconsideration. Reply Br. 14 n.9. The 

Jemez Pueblo insists that this is an incorrect framing because it appealed both the 

district court’s post-trial order and its order on the Jemez Pueblo’s motion for 

reconsideration, “as both wrongly failed to award a smaller portion of the original 

property claim as discussed herein.” Id. 

The Jemez Pueblo did indeed timely appeal both orders. But the Jemez 

Pueblo’s opening brief does not substantively challenge the district court’s post-trial 

order. This is shown by its opening paragraph for its discussion of this issue, which 

summarizes the Jemez Pueblo’s challenge as one to: (1) the district court’s ruling in 

its order on the Jemez Pueblo’s motion for reconsideration that the Jemez Pueblo 

failed to provide notice to the government of its claim to the Paramount Shrine 

Lands; and (2) the district court’s ruling in its order on the Jemez Pueblo’s motion 

for reconsideration that the Jemez Pueblo must prove Indian title to lands 

surrounding the Paramount Shrine Lands. Moreover, on this issue, the Jemez Pueblo 

cites only the post-trial order when listing undisputed factual findings. In light of 

that, we restrict our review of this issue to the district court’s order on the Jemez 

Pueblo’s motion for reconsideration. See Bronson v. Swensen, 500 F.3d 1099, 1104 

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33 

(10th Cir. 2007) (“Consistent with [Federal Rule of Appellate Procedure 

28(a)(9)(A)], we routinely have declined to consider arguments that are not raised, or 

are inadequately presented, in an appellant’s opening brief.”); Verlo v. Martinez, 820 

F.3d 1113, 1127 (10th Cir. 2016) (“A party’s offhand reference to an issue in a 

footnote, without citation to legal authority or reasoned argument, is insufficient to 

present the issue for our consideration.”). 

In any case, to the extent that the Jemez Pueblo argues that the district court 

erred by failing to award the Jemez Pueblo title to the Paramount Shrine Lands in its 

initial post-trial order, that argument fails for the reasons discussed. Namely, we do 

not fault the district court for adjudicating the Jemez Pueblo’s claim as presented 

before and at trial: as one to the entire Valles Caldera. We express no opinion on 

whether to establish title to features of the Paramount Shrine Lands, the Jemez 

Pueblo had to show that it had aboriginal title “to the surrounding land.” App. vol. 6, 

at 172. 

CONCLUSION 

For these reasons, we conclude that the Jemez Pueblo has continuing aboriginal 

title to Banco Bonito. Thus, we reverse in part the denial of the Jemez Pueblo’s motion 

for reconsideration, and we vacate in part and remand with instructions to the district 

court to enter judgment consistent with this opinion. We affirm as to all other issues 

raised. 

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20-2145, Pueblo of Jemez v. United States

MORITZ, Circuit Judge, concurring in part and dissenting in part. 

In this quiet-title appeal, the Pueblo of Jemez (Jemez Pueblo) asserts 

aboriginal title to two areas within the Valles Caldera National Preserve (the 

Preserve) in New Mexico: (1) the Paramount Shrine Lands and (2) Banco Bonito. I 

agree with the majority that the district court properly rejected the claim to the 

Paramount Shrine Lands on procedural grounds because Jemez Pueblo failed to raise 

this narrower and more specific claim until more than seven years after commencing 

this action, and then only after losing at trial on its much broader claim to the entire 

Preserve. But I diverge from the majority because I would reject Jemez Pueblo’s 

assertion of aboriginal title to Banco Bonito. I would do so based on the simple, 

undisputed, and dispositive fact that despite Jemez Pueblo’s exclusive and continuous 

use of the area from approximately 1300 to 1650, other Indian tribes have used 

Banco Bonito for the more than 350 years since that time and up until 2000, when the 

United States allegedly began interfering with Jemez Pueblo’s aboriginal right. 

Because the majority’s contrary analysis—which relies upon a snapshot-in-time 

approach to aboriginal title—cannot be squared with precedent or basic aboriginaltitle principles and could create untold new claims related to federal lands once 

occupied by Indian tribes, I respectfully dissent. 

Analysis 

Jemez Pueblo asserts that since 2000, when Congress created the Preserve, the 

government has been interfering with Jemez Pueblo’s aboriginal title to Banco 

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2 

Bonito. Jemez Pueblo thus seeks to quiet title to Banco Bonito under the Quiet Title 

Act (QTA), which requires proof that Jemez Pueblo possessed aboriginal title to the 

disputed area when the government’s alleged interference began. See Match-E-BeNash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012) 

(describing QTA claim as “a suit by a plaintiff asserting a ‘right, title, or interest’ in 

real property that conflicts with a ‘right, title, or interest’ the United States claims” 

(quoting 28 U.S.C. § 2409a(d))). Everyone agrees that to prove such possession, 

Jemez Pueblo must show that it actually, exclusively, and continuously used Banco 

Bonito “for a long time.” Pueblo of Jemez v. United States, 790 F.3d 1143, 1165 

(10th Cir. 2015) (Jemez I) (quoting Native Vill. of Eyak v. Blank, 688 F.3d 619, 622 

(9th Cir. 2012)). No one disputes, moreover, that Jemez Pueblo’s claim turns on 

exclusivity—whether Jemez Pueblo “used and occupied the land to the exclusion of 

other Indian groups.” Id. at 1165–66 (emphasis omitted) (quoting United States v. 

Pueblo of San Ildefonso, 513 F.2d 1383, 1394 (Ct. Cl. 1975)). And crucially, Jemez 

Pueblo does not seriously dispute the district court’s finding that Jemez Pueblo’s use

has not been exclusive for the last 350-plus years: Although it was the only tribe 

using Banco Bonito from around 1300 to 1650, other tribes have also used the area in 

the centuries that followed. The majority and I part ways on whether this undisputed 

factual finding makes a legal difference to Jemez Pueblo’s assertion of aboriginal 

title. As explained below, caselaw and basic aboriginal-title principles convince me 

that it does—Jemez Pueblo must prove that its exclusive use extended to the date of 

the alleged interference. 

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3 

At the outset, contrary to the majority’s view, both Jemez I and the cases it 

cites support the conclusion that a tribe’s use must remain exclusive through the date 

of alleged interference. To be sure, our decision in Jemez I did not specifically 

address this aspect of exclusivity. Indeed, we assumed for purposes of resolving the 

appeal that Jemez Pueblo could prove exclusivity (as well as the other necessary 

elements) and left for remand the “fact question” of whether Jemez Pueblo could 

establish aboriginal title. 790 F.3d at 1165; see also id. at 1163 n.15 (“We express no 

opinion on whether, on remand, the Jemez Pueblo can factually establish aboriginal 

possession to the land it claims.”). Given this assumption, anything Jemez I said 

about the nature of the exclusive-possession requirement is dicta. See United States v. 

Verdugo-Urquidez, 494 U.S. 259, 272 (1990) (explaining that when courts resolve 

legal issues by “assuming without deciding the validity of antecedent propositions, 

. . . such assumptions . . . are not binding in future cases that directly raise the 

question” (citations omitted)). Nevertheless, as the district court correctly 

ascertained, several statements from our opinion at least suggest that Jemez Pueblo 

cannot assert aboriginal title to Banco Bonito unless its use remained exclusive up 

until the government’s alleged interference. In particular, we stated that Jemez 

Pueblo would need to prove on remand that it “maintained aboriginal possession” 

and “exercised its right of aboriginal occupancy to these lands in 1860 and 

thereafter.”1 Jemez I, 790 F.3d at 1163, 1165 (emphases added); see also id. at 1147 

1

 The quote above refers to 1860 because that is the year Congress conveyed 

fee title to the land at issue to private owners, a move the government argued had 

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4 

(“On remand, . . . Jemez Pueblo will have to prove that it had, and still has, 

aboriginal title to the land at issue . . . .” (emphasis added)). 

These references to maintaining aboriginal title are consistent with Jemez I’s 

cited caselaw, which requires actual, exclusive, and continuous use and occupancy as 

of the relevant date of alleged interference.2

 The court in Pueblo of San Ildefonso, for 

example, considered whether a tribe had aboriginal title “at the time the lands [in 

question] were included in” an executive order extinguishing such title. 513 F.2d at 

1395; see also id. at 1394–95 (upholding finding that tribe’s use continued “from at 

least 1770 down to June 13, 1902,” the date on which President Theodore Roosevelt 

signed executive order extinguishing title).3

 In Zuni Tribe of New Mexico v. United 

States, the court similarly analyzed the necessary elements—including exclusivity—

extinguished Jemez Pueblo’s aboriginal title and thus triggered the Indian Claims 

Commission Act’s five-year statute of limitations. See 790 F.3d at 1147; Act of Aug. 

13, 1946, ch. 959, Pub. L. No. 79-726, § 12, 60 Stat. 1049, 1052 (1946) (allowing 

tribes to bring claims against United States that accrued before 1946 so long as tribes 

brought such claims within five years of 1946). 

2

 These cases mostly come from a (now-defunct) claims court tasked with 

adjudicating aboriginal-title claims and from the Federal Circuit, the court designated 

to hear appeals from the claims court. Although these decisions are nonbinding, our 

prior decision heavily relied on them, and the parties do not question their 

applicability here. See Jemez I, 790 F.3d at 1165–68, 1170–71. 

3

 Jemez Pueblo downplays Pueblo of San Ildefonso because the court made no 

“determination of when aboriginal title was first established.” Rep. Br. 4 n.3. But that 

purported distinction is immaterial. What matters is that the court assessed the 

elements of aboriginal title, including exclusive use, over the entire historical 

timeline, up to the point of government interference. See Pueblo of San Ildefonso, 

513 F.2d at 1394 (explaining that tribe must show those elements were met “‘for a 

long time’ prior to the loss of the land” (emphasis added) (quoting Confederated 

Tribes of the Warm Springs Rsrv. of Or. v. United States, 177 Ct. Cl. 184, 194 

(1966))). 

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5 

from when the claimant tribe’s use began (around 5,000 B.C.) and “continuing 

through” 1846, the year the alleged interference began. 12 Cl. Ct. 607, 641 (1987); 

see also id. at 617–41 (making exclusivity findings for each historical time period 

leading up to alleged 1846 date of interference; finding that by that date, claimant 

tribe “continued to have exclusive use and occupation of the claim area”).4

 And in 

Wichita Indian Tribe v. United States, the Federal Circuit recognized that a lower 

court needed to assess whether a claimant tribe that used an area exclusively for an 

initial period had also continued to do so because evidence of adverse use from other 

tribes in later years would mean that the claimant tribe “failed to retain aboriginal 

title” until the government’s interference took place. 696 F.2d 1378, 1382 (Fed. Cir. 

1983); see also id. at 1385 (explaining that claimant tribe would lack aboriginal title 

to areas it “shared” with other tribes, as “[l]ands continuously wandered over by 

adverse tribes cannot be claimed by any one of th[em]”; recognizing that other tribes’ 

use could “disrupt[]” or “impinge[] on” claimant tribe’s “exclusivity of use”).5

 In 

4

 Jemez Pueblo criticizes Zuni for finding that aboriginal title had been “taken” 

based on circumstances that, in its view, do not satisfy the Supreme Court’s 

requirements for extinguishing aboriginal title. Even if that’s true, however, the point 

remains that the court assessed exclusivity through the dates of the allegedly 

interfering acts. That Zuni may have erred in treating some of those acts as rising to 

the level of extinguishment does not detract from the court’s proper focus on whether 

the tribe’s use remained exclusive up to the date the interference began. 

5 Wichita Tribe arguably framed this conclusion in terms of adverse tribal use 

resulting in the loss of aboriginal title. See 696 F.2d at 1385. But whether framed as a 

failure to acquire or a failure to retain, the result is the same: Jemez Pueblo lacks 

aboriginal title to Banco Bonito because its use was not exclusive at any time during 

the 350 years leading up to the government’s interference. Responding to the latter 

framing, the majority concludes that Jemez Pueblo could lose aboriginal title only 

through sovereign extinguishment or voluntary abandonment. But the cases it offers 

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6 

short, these cases suggest that a tribe’s aboriginal use must be exclusive “‘for a long 

time’ prior to” the government’s interference. Pueblo of San Ildefonso, 513 F.2d at 

1394 (quoting Confederated Tribes of Warm Springs Rsrv., 177 Ct. Cl. at 194). 

Exclusive use for a long time at some other point in history is insufficient. 

In my view, therefore, the majority opinion errs when it presumes that the 

phrase “for a long time” is untethered to any particular event. It’s good enough, the 

majority reasons, for a tribe to simply show that it had exclusive and continuous use 

to support that view do not provide an exhaustive list of how loss can occur; each one 

involved an extinguishment or abandonment issue and thus had no reason to consider 

whether other circumstances could also result in loss. See, e.g., Lipan Apache Tribe 

v. United States, 180 Ct. Cl. 487, 491–92 (1967) (holding that lack of sovereign 

recognition did not extinguish aboriginal title); Alabama-Coushatta Tribe of Tex. v. 

United States, No. 3-83, 2000 WL 1013532, at *13, *43–53 (Fed. Cl. June 19, 2000) 

(considering “whether aboriginal title was extinguished”); Mitchel v. United States, 

34 U.S. (9 Pet.) 711, 746–48 (1835) (determining that extinguishment occurred when 

Spain ratified tribe’s sale of land to private owners); Williams v. City of Chicago, 242 

U.S. 434, 437–38 (1917) (holding that tribe abandoned aboriginal title to lands it had 

not occupied “for more than a half century”); Oneida Indian Nation of N.Y. v. Cnty. 

of Oneida, 414 U.S. 661, 667 (1974) (noting general aboriginal-title principles when 

explaining why tribe’s claim arose under federal law for purposes of subject-matter 

jurisdiction); United States v. Abouselman, 976 F.3d 1146, 1156 (10th Cir. 2020) 

(addressing “whether [aboriginal water] rights were extinguished”); Seneca Nation of 

Indians v. New York, 206 F. Supp. 2d 448, 518 (W.D.N.Y. 2002) (discussing effect of 

undisputed extinguishment by treaty). Indeed, even Jemez Pueblo recognizes that 

circumstances besides extinguishment and abandonment may trigger loss: When 

moving for reconsideration below, it acknowledged that at least some form of 

adverse tribal use (namely, “conquest . . . by another tribe”) may also result in loss. 

App. vol. 5, 875. And Wichita Tribe makes clear that other forms of nonexclusive 

use—such as “shar[ing]” an area “without the[] consent” of the claimant tribe—have 

the same effect. See 696 F.2d at 1381; see also id. at 1385 (clarifying that other 

tribes’ “continuous[] wander[ing]” through claimant tribe’s land could “disrupt[] the 

[claimant tribe’s] exclusivity of use”). Thus, I reject the majority’s premise that any 

aboriginal title Jemez Pueblo may have obtained could be lost only by 

extinguishment or abandonment. 

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7 

and occupancy of the claimed area “for a long time” at any time dating back to time 

immemorial. Here, that period of time was from 1300 to 1650, when the district court 

found that the Jemez Pueblo had actual, exclusive, and continuous use and occupancy 

of Banco Bonito. According to the majority, the district court should have stopped 

there and not considered the undisputed evidence that, for the next 350 years, Jemez 

Pueblo no longer had exclusive possession because other tribes roamed through and 

used the area just as Jemez Pueblo did. But to my knowledge, no court has ever 

held—and the majority cites no case holding—that the period of exclusive and 

continuous use and occupancy necessary to show aboriginal title need not be tethered 

to the relevant claim. Here, the Jemez Pueblo seeks to quiet title to Banco Bonito 

under the QTA based on Congress’ creation of the Preserve in 2000. Thus, it is 

elemental that Pueblo Jemez must show, and the court must assess, exclusivity of the 

claimed area for a long time prior to 2000 when the alleged interference began—not 

for a long time prior to 1650.

6

 

6

 Contrary to the majority’s suggestion, there is nothing “unjust” about 

considering the entire historical picture rather than a snapshot of it. Maj. Op. 24. The 

majority’s hypothetical about Tribes X and Z illustrates why. The hypothetical 

supposes that after Tribe X acquires aboriginal title to a tract by using it exclusively 

for 200 years, Tribe Z adversely uses the tract for just two years. No injustice results 

from that scenario because under the cases cited in Jemez I and discussed above, 

Tribe Z’s two years of adverse use—unlike the centuries of adverse use in Banco 

Bonito that the district court found here—would not disrupt the exclusivity of Tribe 

X’s use. See Wichita Tribe, 696 F.2d at 1384–85 (rejecting conclusion that adverse 

tribe’s “sporadic attacks” disrupted claimant tribe’s use; noting instead that “[l]ands 

continuously wandered over by adverse tribes” may disrupt aboriginal title (emphasis 

added)); Zuni Tribe, 12 Cl. Ct. at 641 (rejecting argument that other tribes’ use 

“detract[ed] from the exclusivity of the [claimant tribe’s] use” in part because such 

adverse use was “for brief . . . periods of time”). 

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8 

Moreover, untethering the exclusivity analysis from the relevant time period, 

as the majority does, offends basic aboriginal-title principles. Courts have long 

recognized that “in the course of years, and especially during the early years of the 

United States, the use and occupancy of land by Indian tribes changed continuously.” 

Sac & Fox Tribe of Indians of Okl. v. United States, 383 F.2d 991, 998 (Ct. Cl. 

1967); see also id. (explaining that this change resulted from new tribes emerging 

and old ones disappearing or moving, from tribes exchanging land, and from tribes 

acquiring land from each other by conquest). Nowhere is this historical reality clearer 

than in the Valles Caldera. As the district court extensively discussed, this area is 

surrounded by more than a dozen tribes and situated near three others, all of which 

have used or occupied the area at various times since the early 1200s. And 

significantly, after 1650—the date on which the majority fixes its analysis—these 

tribes’ use of the Valles Caldera fundamentally changed. Most relevant here, after 

that date, the members of Jemez Pueblo were no longer the sole occupants and users 

of Banco Bonito: Jemez Pueblo’s farming of the area largely or entirely ceased, and 

other tribes traveled through the area to reach other parts of the Valles Caldera. 

What’s more, Jemez Pueblo’s ability to control other tribes’ use was significantly if 

not entirely diminished by its forced removal to a location 15 miles south of Banco 

Bonito. The majority treats these historical realities as irrelevant, instead selectively 

focusing on a snapshot of events hundreds of years earlier. But by simply ignoring 

the “considerable change” in the Valles Caldera over many centuries and effectively 

“freez[ing]” Jemez Pueblo’s aboriginal use as of 1650, the majority fails to apply a 

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9 

fundamental concept of aboriginal law—that over the course of years, use and 

occupancy by Indian tribes changes frequently. Sac & Fox, 383 F.2d at 998–99. 

Finally, the majority’s snapshot in-time approach to exclusivity could subject 

the government to countless new aboriginal-title claims. Utilizing that approach, for 

example, Zia Pueblo would have had an equally strong quiet-title claim here based on 

its use of the Valles Caldera (including Banco Bonito) before the Jemez Pueblo ever 

arrived in the area. After all, the district court found that Zia Pueblo’s use began 

decades before Jemez Pueblo arrived in the late 1200s or early 1300s, which is likely 

long enough to acquire aboriginal title.7 See Alabama-Coushatta Tribe, 2000 WL 

1013532, at *39–42 (holding that use for 30 years is sufficient to establish aboriginal 

title); United States v. Seminole Indians of Fla., 180 Ct. Cl. 375, 387 (1967) (holding 

that use for “more than 50 years” is sufficient). Moreover, the district court also 

found Zia Pueblo’s use has continued to the present day. 

And there is no reason tribes nationwide could not file similar claims seeking 

aboriginal title to lands within the 18 other national preserves scattered throughout 

the United States or, for that matter, to any lands owned or later acquired by the 

government. See National Park Service, About Us (last updated Jan. 30, 2023), 

7

 When confronted with this possibility, the majority assures that “whether a 

[t]ribe was the first occupant of certain land is ultimately irrelevant to whether the 

[t]ribe established aboriginal title to the land.” Maj. Op. 26 n.17 (quoting App. vol. 6, 

186 n.85). I agree that first use of an area should be irrelevant to the analysis. The 

problem is that under the majority’s approach, such use becomes relevant; tribes like 

Zia Pueblo who used an area first may now claim aboriginal title so long as their use 

continued in some form and no extinguishment has occurred. 

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10 

https://www.nps.gov/aboutus/national-park-system.htm. Under the majority’s 

analysis, so long as those tribes exclusively used an area during some prior historical 

era and their use has continued in some form, they may now assert aboriginal title—

even if their use has not been exclusive for hundreds of years. Rather than open the 

door to quiet-title claims based on tribal use of land that has not been exclusive for 

centuries, I would hold that Jemez Pueblo cannot assert aboriginal title. 

Conclusion 

Because it has been more than 350 years since Jemez Pueblo had exclusive use 

of Banco Bonito, the district court rightly determined that Jemez Pueblo failed to 

establish that it held aboriginal title in 2000 when the government allegedly 

interfered with that use. I would affirm the district court’s rejection of Jemez 

Pueblo’s Banco Bonito claim. 

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No. 20-2145, Pueblo of Jemez v. United States, et al.

EID, J., concurring in part and dissenting in part. 

I join the majority opinion with respect to the Pueblo of Jemez’s claim to Banco 

Bonito, but I disagree with how it analyzes the Paramount Shrine Lands claim. In my 

view, the district court erred by refusing to consider, on notice grounds, whether Jemez 

holds aboriginal title to discrete subareas of the Valles Caldera like the Paramount Shrine 

Lands. I would also reverse the district court’s alternative holding that Jemez could only 

establish aboriginal title to the Paramount Shrine Lands by demonstrating the ability to 

exclude other tribes from those lands’ indeterminate surroundings. Like the district 

court’s treatment of Banco Bonito, its alternative holding regarding the Paramount Shrine 

lands imposed a made-up requirement that subverts aboriginal title law. Accordingly, I 

respectfully dissent from Part IV of the majority opinion. 

I. 

The district court erred by refusing to analyze Jemez’s claim to the Paramount 

Shrine Lands subarea on reconsideration. The district court held that Jemez’s subarea 

claims (other than Banco Bonito) should have been raised at an earlier stage in the 

litigation, as the government was not on notice of them when Jemez moved for 

reconsideration. I think reversal is inescapable. The government was on notice of 

Jemez’s claim to the Valles Caldera, so it was plainly on notice of Jemez’s claim to any 

and all of the Valles Caldera’s subareas. Although a Rule 59(e) motion is subject to 

deferential abuse of discretion review, a district court abuses its discretion where it makes 

an error of law or renders a “manifestly unreasonable” ruling. See maj. op. at 14 (quoting 

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2 

Eaton v. Pacheco, 931 F.3d 1009, 1027 (10th Cir. 2019)). In my view, when taking into 

account the stakes and nature of this land dispute, it was both legal error and manifestly 

unreasonable to refuse to assess Jemez’s claim of aboriginal title to discrete subareas 

after its original claim had been rejected. I would hold that the district court abused its 

discretion and reverse. 

Recognizing, as we must, that we are dealing with a complex legal and factual 

dispute about whether aboriginal title existed—and, if so, to what extent—in the Valles 

Caldera, I find it untenable to conclude that Jemez was somehow prevented from seeking 

to confirm its aboriginal title to what everyone agrees is a subset of the initial claim area. 

If anything, it was incumbent upon the district court to refine its sense of non-exclusivity 

in its post-trial opinion to ensure that Jemez’s potentially valid aboriginal title to any 

subareas was not jeopardized by a finding of Valles Caldera–wide non-exclusivity. If 

either party or the district court viewed the trial record as insufficient to resolve Jemez’s 

subarea claims, the district court could have held further proceedings focusing on the 

subareas in particular—as the district court itself suggested. See Aplt. App’x Vol. VIII at 

1480. The fact that the parties have spent seven years litigating this dispute weighs in 

favor of getting it right, not taking a shortcut. 

As the majority recounts, Jemez initially claimed the entire Valles Caldera, and the 

district court rejected that claim after a twenty-one-day trial because of Jemez’s 

nonexclusive use of the entire Valles Caldera. But, as Jemez suggested in moving for 

reconsideration, the rational follow-up question concerns the geographic scope of the 

district court’s dispositive exclusivity finding. Indeed, the district court seemed to 

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3 

envision precisely this kind of partial resolution in the conclusions of law it entered after 

trial, where it stated that “a court may find that a claimant Tribe had exclusive use of 

certain portions of the claim area[] but failed to prove exclusive use of other portions.” 

Aplt. App’x Vol. IV at 789; see also Aplt. App’x Vol. VIII at 1477 (government 

acknowledging the same but arguing not on the facts of this case). If the district court 

was unable or unwilling to clarify the scope of its exclusivity finding unprompted, the 

best way to determine it within the confines of this litigation would have been to motion 

the district court to reconsider whether Jemez had aboriginal title to a smaller portion of 

the Valles Caldera. That is exactly what Jemez did here. The majority is untroubled by 

the district court’s ruling. I would hold that reconsideration was required. 

The majority, the district court, and the government all seem to expect Jemez to 

have pleaded, in the infinite alternative, every possible permutation of land claim in light 

of every possible permutation of responses by the district court. See maj. op. at 33; Aplt. 

App’x Vol. VI at 1150; Aple. U.S. Br. at 49. But that cannot be the solution. As Jemez 

rightly observes, such a system “would be impractical if not impossible to implement.” 

Reply Br. at 15. From a notice perspective, I think Jemez’s claim to the Valles Caldera 

necessarily included all its subareas. That reading follows from Jemez’s complaint, 

which sought to quiet aboriginal title to “the lands of the Valles Caldera National 

Preserve.” Aplt. App’x Vol. I at 62 (emphasis added). It would be nonsensical for Jemez 

to have to anticipate every single possible alternative ruling the district court might make 

regarding those lands just to preserve its ability to quiet title to parcels already 

encompassed within the initial claimed area. Rather, it was both expedient and efficient 

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4 

from a judicial economy perspective for Jemez to proceed precisely as it did here—that 

is, to accept the district court’s ruling with respect to the original claim and try to 

understand what subsets, if any, survived it. The notion that Jemez’s aboriginal title 

claim to the Valles Caldera was an all-or-nothing proposition is fundamentally 

inconsistent with basic remedial principles. See Fed. R. Civ. P. 54(c) (“[F]inal judgment 

should grant the relief to which each party is entitled, even if the party has not demanded 

that relief in its pleadings.”). The government was therefore on notice of Jemez’s subarea 

claims by virtue of its Valles Caldera claim. 

The government’s suggestion that Jemez was “chang[ing] strategy after trial and 

an unfavorable decision,” Aple. U.S. Br. at 49, is the wrong framing here. Rather, Jemez 

accepted the district court’s finding that it lacked aboriginal title to the entire Valles 

Caldera and sought to quiet title to specified subareas based on arguable claims to 

aboriginal title that were no less legitimate after the district court’s post-trial ruling. 

Jemez had argued for title to the subparts of the Valles Caldera because an argument for 

all “lands of the Valles Caldera National Preserve” was an argument for its subparts. 

Aplt. App’x Vol. I at 62. Reconsideration of those subarea land claims was essential, and 

the government was on clear notice of Jemez’s asserted interest in all lands encompassing 

the Valles Caldera from the moment Jemez filed suit. The district court therefore abused 

its discretion by reasoning around the problems with its initial order’s wholesale 

dismissal of Jemez’s claim. 

It is true that a district court has broad discretion to manage proceedings before it, 

but some choices are off-limits. In my view, the district court could have either analyzed 

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the subarea claims based on the trial record or held further proceedings to provide a 

factual basis for deciding those claims. It should have done so sua sponte after trial and, 

if not, done so in response to Jemez’s motion for reconsideration. What the district court 

could not do, however, is what it did here: decline to decide those claims entirely on 

notice grounds. It is undisputed that the Paramount Shrine Lands fall within the territory 

sought in the complaint. The district court’s conclusion on notice—much like its 

simultaneous decision on Banco Bonito, which the court correctly reverses today—is 

“altogether unjust.” See maj. op. at 24. It was both legal error and manifestly 

unreasonable. But the majority opinion endorses it anyway. I would not. I would hold 

that the district court’s decision “‘exceeded the bounds of permissible choice,’ given the 

facts and the applicable law in the case at hand,” and was thus an abuse of discretion. 

United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quoting United States v. 

Ortiz, 804 F.2d 1161, 1164 n.2 (10th Cir. 1986)). 

II. 

The district court alternatively held that the Paramount Shrine Lands claim failed 

because aboriginal title respecting “such minute areas” would require an additional 

showing of Jemez’s ability to exclude other tribes from those areas’ surroundings. Aplt. 

App’x Vol. VI at 1157. The majority expresses “no opinion” on this issue. See maj. op. 

at 33. However, the majority’s thorough discussion of Banco Bonito—which I join in 

full—would compel reversal if we reached the district court’s alternative ground. I 

would reach and reverse this holding as well. 

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As a doctrinal matter, the district court’s authorities do not support its “belie[f] 

that to establish aboriginal title to a discrete geographic feature, such as a shrine, spring, 

or trail, a Tribe must prove that it had the ability, if it wished, to exclude local, adverse 

Tribes from the surrounding land or from the feature itself if there is evidence of other 

Tribes in the vicinity.” Aplt. App’x Vol. VI at 1157. Indeed, the district court 

forthrightly acknowledged that “no case deals with aboriginal title to such minute areas” 

but claimed to find support for its proposition anyway. Id. In my view, that support was 

illusory, and the resulting “belief” was both ill-advised and needlessly detrimental to 

aboriginal title claims. The district court’s authorities merely restate the general 

principle, with which neither I nor the majority quarrel, that a tribe establishing 

aboriginal title must demonstrate its ability to exclude other tribes from the interest 

claimed. See, e.g., Strong v. United States, 518 F.2d 556, 561 (Ct. Cl. 1975) (“Certainly, 

one of the primary characteristics of ownership is the desire and ability to exclude others 

from the area over which ownership is claimed.”); see also Aplt. App’x Vol. VI at 1158 

(district court relying on Strong). The district court’s cases simply do not support a leap 

from (1) demonstrating exclusivity with respect to the land claimed to (2) demonstrating 

exclusivity with respect to land surrounding the land claimed. Aside from the lack of a 

doctrinal basis for the latter showing, it is worth noting that the former is bounded and 

straightforward, while the latter is open-ended and imprecise. Besides, as Jemez 

observes, “Anglo-American property law” does not typically feature “a minimum size . . . 

for recognition of interests in real property.” Aplt. Br. at 42. It is unclear why such a 

requirement would arise in this context. 

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Placing new legal obstacles in the way of Jemez’s ability to demonstrate 

aboriginal title was error with respect to the Paramount Shrine Lands just as it was error 

with respect to Banco Bonito. In both instances, the district court lacked doctrinal 

support and discarded core principles that underlay this area of law. Where a tribe has 

shown continuous and exclusive possession of real property for a long time sufficient to 

establish aboriginal title and where its property interest has been neither extinguished nor 

abandoned, it is unclear why an aboriginal title claim would fail or face additional 

constraints simply because the relevant property was small—whatever that means. As 

the majority explains, a successful Quiet Title Act claim based on aboriginal title requires 

two showings: that a tribe once held aboriginal title and that it continues to hold 

aboriginal title. See maj. op. at 20. Just as our cases say nothing about a “continuingexclusivity requirement,” id. at 23, they say nothing about a minimum size to avoid 

triggering a requirement to prove exclusivity with respect to surrounding lands. Aside 

from the lack of legal support for the new barrier interposed by the district court, the 

absence of any obvious cutoff point for when a claimed area is large enough to be 

assessed on its own terms—as the district court did with Banco Bonito, for example—

makes the district court’s approach puzzling. The scope of the relevant surroundings is 

likewise unclear. 

Privileging a new criterion like size seems especially inappropriate where Jemez 

derives religious significance from the property at issue—notwithstanding the 

government’s suggestion at oral argument that a claim to the Paramount Shrine Lands is 

like a claim to a chair in a law school classroom. See Oral Arg. at 46:05–46:41. The trial 

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record is replete with evidence of the historic and continuing significance of the 

Paramount Shrine Lands to Jemez. See, e.g., Aplt. App’x Vol. III at 551. Their 

importance deftly illustrates some of the problems with the novel legal impediment the 

district court devised as an alternative ground for denying Jemez’s claim. In effect, the 

district court told Jemez that, however integral the Paramount Shrine Lands may be to the 

Jemez community, they could not be the subject of an aboriginal title claim without proof 

that Jemez could exclude other groups from Redondo, which is a site of significance to 

numerous other tribes. 

I would not adopt a rule so contrary to tribal land claims with so few concrete 

parameters and so little doctrinal basis. It bears repeating that the majority does not adopt 

such a rule today either. See maj. op. at 33. I see no reason Jemez should be precluded 

from quieting its aboriginal title to a smaller area of land unless it can demonstrate title to 

the surrounding areas. As with any aboriginal title claim, Jemez must still prove actual, 

exclusive, and continuous use and occupancy, for a long time, with respect to the claimed 

land itself. See Pueblo of Jemez v. United States (Jemez I), 790 F.3d 1143, 1165 (10th 

Cir. 2015). The government’s arguments about the evidentiary difficulties it might face 

in countering aboriginal title suits involving smaller parcels of land, see Aple. U.S. Br. at 

53, is unpersuasive because the tribal claim at issue would face the same constraints. 

There is no presumption of aboriginal title; the burden remains on the plaintiff tribe to 

demonstrate it has satisfied the relevant doctrinal requirements for the parcel in question. 

See Jemez I, 790 F.3d at 1165–66. But the plaintiff tribe’s burden is always limited to the 

parcel in question. I would hold that the district court erred by holding otherwise. 

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III. 

I would reverse the district court with respect to the aforementioned legal 

obstacles that guided its rejection of Jemez’s claim to the Paramount Shrine Lands. 

However, I would go no further. The parties argue the merits of the Paramount Shrine 

Lands claim on appeal to a certain extent, but aboriginal title is a question of fact. See id.

at 1165; maj. op. at 14. Without a factual finding under the right legal framework that 

can be reviewed on appeal for clear error, I would not usurp the district court’s critical 

factfinding role. Instead, I would remand Jemez’s Paramount Shrine Lands claim for 

evaluation consistent with my position discussed above and with the majority opinion’s 

resolution of the Banco Bonito issue. For the foregoing reasons, I respectfully concur in 

part and dissent in part. 

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