Copyright © 2012 Albuquerque Journal
The deep blue sweep of 11,301-foot Mt. Taylor looming west of Albuquerque is the origin of the only permanent water source in west-central New Mexico. Its high-elevation snows feed springs and the San Jose River.
For the last four years, it has also been the source of a bitter a quarrel between two longstanding traditions — Indian tribes that have lived in and used the area for centuries and heirs to land grants handed down by the king of Spain in the 1700s.
The issue is the designation of 434,000 acres — 700 square miles — as what is called a “traditional cultural property,” or TCP, under state law.
And it is now in the hands of the New Mexico Supreme Court.
The TCP designation, made in 2009, puts land within the boundary on the State Register of Cultural Properties because of its significance to the broad patterns of history, its association with the lives of significant persons in the past and its status as a property that has or will yield important information in history or prehistory.
It’s not unlike a church or an old house or a hotel or railroad station or bridge or one of hundreds of items, typically in the built environment, that carry those brass plaques stating the place is historically significant.
But the law also permits designation of sites large and small as carrying another kind of significance. And, in this case, the nomination of the property was initiated by a coalition of five Indian tribes — the pueblos of Acoma, Laguna and Zuni, the Hopi Tribe and the Navajo Nation — and the site is very large.
Despite its substantial acreage, Mt. Taylor TCP is not the largest traditional cultural property in the nation. Nantucket Sound, a body of water, is among other large areas that have been listed on the National Register of Historic Places.
What the designation does in this case, among other things, is require that affected tribes be consulted earlier in the process when any kind of development is planned.
Tribes say it’s not unreasonable for neighbors to talk to each other, or for resource companies to have to notify tribes early on about actions that may be disruptive or destructive to sacred sites.
Land grant folks worry that the consultation requirement will translate to “veto power” over actions on communal lands that have already been hugely diminished by unscrupulous and even illegal land deals over the decades.
Theresa Pasqual, who became historic preservation officer for the Pueblo of Acoma in 2006, recalls the requests that piled up daily on her desk when she started the job. They weren’t just from mining companies, but also from public or private entities seeking input or permission for cellphone and radio towers, roads, quadrathalons, grazing and timber harvesting on pueblo lands.
Simultaneously, there was national discussion of nuclear power as an alternative energy source, and more talk locally of companies moving from uranium exploration in the Grants area to actual mining operations.
“Tribes were getting literally inundated with requests on how to consult on all of these different projects,” she said. Pasqual contacted other tribal preservation officers to compare notes, and they gathered at a conference table over a huge map of the area in 2007. They put green markers for mining requests, blue for road proposals, yellow for other activities.
It didn’t take long for the map to be covered.
“We looked at the cumulative impacts,” she said. “That really opened our eyes.”
In time, tribal leadership was brought in to find a tool to help agencies understand the significance of Mt. Taylor.
“It’s important to keep it preserved, to identify and protect it at all costs,” especially water, said Acoma Gov. Randall Vicente. “It’s the heartbeat of our prayers and our everyday life, and has been since time immemorial for Acoma.”
After some stumbles, the Cultural Properties Review Committee, a volunteer board appointed by the governor and made up of experts in various preservation areas, unanimously approved the designation in May 2009. Private property is excluded from the designated area of the TCP.
But controversy had erupted at public sessions before then over issues of whether there was adequate notice to affected property owners — both those who lease subsurface rights on public lands and surface owners — and particularly over the inclusion of the common lands of the Cebolleta Land Grant.
Cebolleta’s lands are properly included, the state and tribes’ attorneys argued, because land grants are considered political subdivisions of the state.
Land grant heirs say 2004 legislation that sought to clarify the status of the grantees was never intended to penalize the heirs. And though they are explicitly recognized as political subdivisions of the state, land grants have no power to tax.
Lee Maestas, president of the board of trustees of the Cebolleta grant, notes that the grant’s original 200,000 acres was reduced to its current 34,000 acres through dubious partitions in the early part of the 20th century — and 19,000 of that, he says, “will be controlled by other parties” if the TCP is allowed to go forward.
“It’s a modern-day land grab,” he said in an interview at Seboyeta, a non-incorporated village within the land grant area on the east side of Mt. Taylor. About 150 families live in the villages of Bibo (or Cebolletita); Seboyeta, the post office’s spelling of Cebolleta; and Moquino.
Although the land grant retains ownership of the land with a TCP, Maestas said he fears it means loss of control.
“If the tribes had a sacred area, I’d be more than happy to sit down and talk,” he said. “But to draw a line around the whole thing …”
Maestas said the land grant, whose board is the local government unit for the villages, has had to devote way too many resources to defend the land, especially when there “huge infrastructure needs” in the community.
People have been here 200 years, and they’re going to be her a long time after.”
Cebolleta Land Grant joined with Rayellen Resources and another half-dozen or owners of mineral rights in a lawsuit challenging the Mt. Taylor listing in 2009.
Lovington-based Rayellen, the first named plaintiff, filed the lawsuit with consolidated claims from the land grant and resource companies in Lea County. Fifth Judicial District. District Judge William Shoobridge found that size does matter — and that the area designated was too big to be inspected. Shoobridge also ruled that the Cebolleta common lands should not be included.
The court sent the case back to the Cultural Resources committee for further action. But the judge also rejected some of the plaintiffs’ legal claims.
The tribes appealed that ruling, and the energy companies and land grant heirs filed a cross-appeal. Both sides attracted multiple “friends of the court” in the litigation.
Cattlemen, mining and oil and gas associations and other Spanish land grantees in New Mexico, as well as the Land Grant Council, are on one side.
Friends for the other include archaeologists, the historic preservation community, Indian organizations including the All Indian Pueblo Council, and the National Trust for Historic Preservation, which declared Mt. Taylor one of the nation’s 11 most endangered sites in 2009.
In a rare bow to the complexity of the issues and the sheer number of parties, the New Mexico Supreme Court ordered two hours of oral argument last Monday, and accommodated an overflow crowd in the adjacent Court of Appeals chambers with a closed circuit hookup.
Justices quizzed lawyers on issues including the size of the Mt. Taylor designation and its amenability to inspection and whether the land grant is indeed a state entity.
They listened closely, but gave no indication of how they will rule.
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