Pueblo of Jemez v. United States, — F.3d —-, 2015 WL 3916572 (10th Cir. June 26, 2015) 

In a detailed opinion on the nature and history of aboriginal rights, the Tenth Circuit concluded that the district court erred in dismissing quiet title claims brought by an Indian tribe. In doing so, the Tenth Circuit reiterated that, absent a clear and unequivocal intent to extinguish pre-existing aboriginal rights, the Jemez Pueblo’s aboriginal right of occupancy survived a grant to a private landowner. The Tenth Circuit further held that a private landowner’s occupation, standing alone, may not be sufficient to extinguish aboriginal title, because fee title and aboriginal title could exist simultaneously. The Tenth Circuit remanded for consideration of whether the Jemez Pueblo had exercised its right of aboriginal occupancy and clarified that the test was whether Jemez Pueblo had “actual, exclusive, and continuous use and occupancy.” For an Indian tribe, this factual determination depends on proof that (a) the tribe occupied the land exclusive of other tribes, and (b) the tribe used the land consistent with its traditional purposes, which may include “hunting, grazing of livestock, gathering of medicine and of food for subsistence, and the like.”