237 BRENNAN, J., dissenting These provisions included numerous procedural and financial safeguards governing such conveyances. (2) Congress in 1933 extended the narrow provisions of § 16 to authorize the sale by the Pueblos and the Secretary of any land that had been taken from a non-Indian claimant by the Pueblo Lands Board.20 Congress' purpose was to remove the "restrictions in the sale of [these] lands"; " the legislation was designed to authorize alienation of Pueblo lands only in "a limited number of situations" where necessary to consolidate a tribe's land base. (3) In 1948, Congress authorized the Secretary to grant rights-of-way "for all purposes" across "the lands belonging to the Pueblo Indians in New Mexico," subject to "the consent of the proper tribal officials" of organized tribes." (4) In 1949, Congress authorized the Pueblos and the Secretary to exchange certain Pueblo lands for those in not." See infra, at 271, and n. 39. On the premise that the 1899 Act was "probably not sufficiently broad to cover the matter," H. R. Rep. No. 955, 69th Cong., 1st Sess., 2 (1926), Congress enacted emergency legislation authorizing condemnation proceedings in federal district court against Pueblo lands. The Act was invalidated as a result of procedural defects, see H. R. Rep. No. 816, 70th Cong., 1st Sess., 1 (1928), and Congress subsequently enacted the 1928 Act to clarify that the general easement and right-of-way provisions were "applicable to the Pueblo Indians of New Mexico," ibid. " Act of May 31, 1933, §7, 48 Stat. 111. "S. Rep. No. 73, 73d Cong., 1st Sess., 4 (1933). "Id., at 17 (emphasis added). Specifically, these situations were those "wherein non-Indian settlements of long standing, recovered for the Pueblos, are not needed by the Pueblos but may more profitably be sold and the proceeds reapplied to the purchase or improvement of lands nearer to the ancient Pueblo villages." Ibid. See also H. R. Rep. No. 123, 73d Cong., 1st Sess., 4 (1933) (legislation was designed to permit "the blocking of lands belonging to the tribes"). "Act of Feb. 5, 1948, §§ 1, 2, 62 Stat. 17-18, 25 U. S. C. §§ 323, 324. Five of the nineteen Pueblo Tribes organized under the Indian Reorganization Act of 1934, see n. 16, supra. H. R. Conf. Rep. No. 94-1439, p. 4 (1976). The Department has long extended this consent requirement to rights-of-way over all Pueblo lands. See 25 CFR §§ 162.2-162.5 (1985). 26 BRENNAN, J., dissenting 472 U. S. the public domain "[f]or the purpose of consolidation" of tribal lands." (5) Similar legislation was enacted in 1961 "[f]or the purpose of improving the land tenure pattern and consolidating Pueblo Indian lands."" (6) In 1968, Congress authorized the Cochiti, Pojoaque, Tesuque, and Zuni Pueblos to lease their lands for specified purposes "for a term of not to exceed ninety-nine years," except for grazing leases which could not exceed 10 years. This authorization created an exception for these Tribes from the statutory provisions applicable to the other Pueblo Tribes, which limit Indian leasing of restricted lands to 25 years." (7) Congress in 1976 enacted legislation to clarify the full applicability of the general rightof-way provisions to the Pueblos; the purpose was "to place the New Mexico Pueblo Indians in the same position relative to grants of rights-of-way across their lands as other federally recognized Indian tribes." 29 Each of these enactments would have been meaningless if § 17 already authorized Pueblo leases of unlimited duration and even outright sales of land. The enactments of 1924, 1933, 1947, and 1961 clearly demonstrate that Congress has authorized alienation of Pueblo lands only where necessary to consolidate the tribal base and to improve land tenure patterns-a carefully crafted effort that the Court's interpretation today annuls. Similarly, the enactments of 1928, 1948, 1968, and 1976 demonstrate Congress' intent that leases and rights-of-way on Pueblo lands be subject to the same procedural and financial safeguards that govern such conveyances on Indian lands generally-an intent that is irreconcilable with the notion that § 17 created an entirely independent avenue for alienation of Pueblo title subject only to standardless secretarial approval. "Act of Aug. 13, 1949, § 2, 63 Stat. 605, 25 U. S. C. § 622. 25 Pub. L. 87-231, § 10, 75 Stat. 505, 25 U. S. C. § 624. "Pub. L. 90-570, 82 Stat. 1003, as amended, 25 U. S. C. § 415. Ibid. 28 Pub. L. 94-416, §3, 90 Stat. 1275, 25 U. S. C. § 322. "H. R. Conf. Rep. No. 94-1439, at 4. 237 BRENNAN, J., dissenting B. Legislative History The Court explains, however, that its baffling interpretation of § 17 is "consistent with the limited legislative history available." Ante, at 253. All the Court can offer in support of this assertion is a carefully distilled excerpt from a colloquy between Senator Lenroot and Francis Wilson, an attorney for the Pueblos, during a 1923 Senate hearing. Ante, at 253-254, n. 28. Senator Lenroot inquired "whether it might not [be] advisable to provide that these lands may be sold or alienated with the consent of both the Pueblo and the Secretary of the Interior," and Wilson replied that it would be "quite desirable under some conditions." 1923 Senate Hearings, at 155. Unfortunately, the Court omits some rather crucial language demonstrating that the entire colloquy it relies upon pertained to § 16 rather than to § 17. Senator Lenroot began by asking: "Might there be cases where it would be to the interest of the Indians to sell?" Id., at 154. Wilson responded that "I can not think of one. There might be, but I have not any in mind." Ibid. Senator Jones of New Mexico then suggested that "where there are allotments, strips here and there, where the title has been divested from the Indian, might it not be advisable as to the strips where nonIndians have not the title, interspersed with strips where non-Indians have the title, that there be some disposition of that land so as to get the Indian holdings contiguous to one another." Ibid. Everyone present agreed that "[i]t would be very desirable." Ibid. (Wilson). The participants turned next to the question whether the Secretary could authorize such conveyances. As was "true generally of the Indian law," it was agreed that the Secretary could not have "anything to do with it" because "Congress has taken full jurisdiction of the sale of this land," and would therefore "[a]bsolutely" have "to legislate upon it." Id., at 155 (Sen. Lenroot, Comm'r Burke, Mr. Renehan, Sen. Jones). It was only at this point that Senator Lenroot queried whether Congress should provide that "these lands may BRENNAN, J., dissenting 472 U. S. be sold or alienated," and Wilson agreed that it would be "quite desirable under some conditions." Ibid. Wilson then identified what the "some conditions" were-where the Pueblos "could make swaps and transfers [so] they could get their lands into much better condition." Ibid. This "limited" legislative history, ante, at 253, therefore demonstrates that (1) all participants understood that Congress would have to give its approval to any alienation of Pueblo lands, and (2) Congress intended to do so only where necessary "to get the Indian holdings contiguous to one another"-the precise function of the narrowly drafted § 16. Nowhere was it suggested that Congress, after hammering out this limited authorization for alienation of some Pueblo lands, would then intend to authorize alienation of all Pueblo lands.30 Section 17 was drafted by Francis Wilson, an attorney representing the Pueblos in the legislative proceedings," and the Court has not suggested how a provision drafted by Indian advocates who were urging simply that the Pueblos be treated like other tribes could possibly have been intended to override the restraints against alienation set forth in the "The Court apparently believes that a comparison of the Pueblos to the "Five Civilized Tribes" during the colloquy discussed above supports its conclusion that Congress intended to authorize outright alienation of Pueblo lands subject only to secretarial approval. See ante, at 253-254, n. 28. But the tribal lands of the Five Tribes, most of which were allotted around the turn of the century, were made inalienable for specified periods of time, restrictions that have been extended on allotments of tribal members of half or more Indian blood subject to detailed congressional standards for relaxing the restrictions. See generally Cohen 785-788. Contrary to the Court's implication, there is no parallel between management of the Five Tribes' property and management of Pueblo property under the Court's interpretation of § 17. "See, e. g., Letter from Francis Wilson to Roberts Walker, at 3 (Nov. 5, 1923), reprinted in 2 Kelly 3 (Ex. 1); Letter from Francis C. Wilson to Charles H. Burke, at 2 (Nov. 26, 1923), reprinted in 2 Kelly 7 (Ex. 2). See generally 1 Kelly 10-11. 237 BRENNAN, J., dissenting Nonintercourse Act. That § 17 was simply intended as a declaratory reaffirmation of the full scope of the Nonintercourse Act is best illustrated by the fact that it provoked no debate, commentary, or opposition. The much more modest § 16, on the other hand, engendered sharp controversy." As one historian concluded after reviewing all available legislative history, departmental records, and private correspondence, there is "nothing in the record to indicate that Wilson or anyone else intended or interpreted Section 17 as authorizing the Pueblos to convey their lands to any greater extent than other Indians, or otherwise modifying the NonIntercourse Act in any substantive way. Such a construction, if circulated at that time, would certainly have provoked heated debate and opposition from the Collier group and others," especially since sales by individuals and tribal officials had in part caused the turmoil that led to the Act. What is remarkable about Section 17 is that it was so easily accepted, apparently by consensus. Almost alone among the lengthy provisions of the various bills, it was undisputed and unamended." " After a similar review, the Solicitor for the Department of the Interior found only last year that "[n]owhere in the legislative history is there any suggestion that Section 17 was *See, e. g., 1923 Senate Hearings, at 105-106, 154-155. "The reference is to John Collier, who became Commissioner of Indian Affairs in 1933. Collier and organizations that he represented were opposed to further alienation of the Indian tribal base, and they played an active role in the enactment of the Pueblo Lands Act. 1 Kelly 5-20. Many of Collier's views against further alienation became law upon enactment of the Indian Reorganization Act of 1934, see n. 16, supra. See generally Cohen 144-149. "1 Kelly 14. This report was prepared under contract with the Bureau of Indian Affairs of the Department of the Interior, and is based on, inter alia, administrative records stored at the National Archives and the New Mexico State Archives. |