Copyright © 2016 Albuquerque Journal
A couple who run a Native American-led retreat center and farm in rural Sandoval County have obtained a restraining order against the Pueblo of San Felipe that allows Larry and Deborah Littlebird to use – for now – the rutted dirt road that leads to their property.
It is the latest step in what has been a messy, yearslong battle that went all the way to the state Supreme Court. Justices almost ended the fight last month when they ruled that the Littlebirds cannot sue to get access to the road because tribes have federal immunity from almost all lawsuits.
But last week, a dixtrict judge granted the Littlebirds a restraining order against the tribe after the couple said pueblo officials “trapped” them on their property after building a fence across the disputed road – while the Littlebirds were home.
San Felipe Pueblo Gov. Michael Sandoval, his staff and the pueblo’s attorney on the case did not return numerous calls for comment, but Sandoval said in a letter to the Journal that the tribe did not block the Littlebirds’ only road into their property and called their claims of being “trapped” and “penned in” a lie.
The letter says the Littlebirds have another access road into the property, but the federal Bureau of Land Management and the previous owners of the property, the Nature Conservancy, say no such road exists.
The back and fourth claims of right of way on the road and access to the Hamaatsa retreat property have wound through four state courts over the past seven years.
The Supreme Court ruled last month that even though the Littlebirds rely on the road as their sole entrance to their property, their lawsuit against San Felipe seeking use of the road must be dismissed because federal law says Native American tribes enjoy blanket immunity from lawsuits.
The ruling was issued June 17, and on June 20 the tribe erected fences across the road to the center while the Littlebirds were there. As they attempted to leave the property that night, they said they were “trapped.” Sandoval County sheriff’s officials said a deputy and a Bureau of Indian Affairs officer cut the fence to let the Littlebirds out.
The next day, the Littlebirds were granted a temporary restraining order against San Felipe by 13th Judicial District Judge John Davis. The order says the pueblo is barred from erecting any more fencing. And three days after that, the judge extended the order until a future court date, which has not been scheduled.
In 2001, the federal Bureau of Land Management made a land swap with San Felipe and a few other tribes in the state, giving them some federal land in exchange for tribal land. Some land swapped in that deal helped the BLM create the Kasha-Katuwe Tent Rocks National Monument.
Before the deal was signed, the BLM helped private landowners secure road rights of way to their property.
Few people live in the area, a vast desert area east of Interstate 25 about 12 miles from the main residential area of San Felipe Pueblo.
At the time, the Ball family owned more than 12,000 acres in the area, some of which was targeted in the swap. But with the Ball patriarch recently deceased and the Ball children ready to donate the land to the Nature Conservancy, the BLM’s call for landowners to speak up for road rights of way fell through the cracks.
Nature Conservancy officials say they didn’t officially get the property until three years after the land swap, so they couldn’t speak up for the road, which they believed they had full access to use.
Robert Findling, director of conservation projects for the Nature Conservancy in New Mexico, said last week that after it acquired the land, San Felipe attempted to buy it but eventually declined because of development restrictions on the land.
The pueblo’s letter to the Journal does not clarify the land transaction or the tribe’s interest in the land.
Because San Felipe didn’t buy the land, Findling said the Nature Conservancy ended up selling some parcels to other buyers, including 320 acres in 2007 to the Littlebirds’ center, Hamaatsa.
It was sold with full and clear title that included the access road, Findling said.
“We would never sell property we didn’t have access to,” he said.
The Littlebirds, with help from donors, turned the land into a not-for-profit learning center with an off-grid farm and retreat that offers indigenous storytelling camps and healing ceremonies. They also host leadership workshops and sustainability and permaculture classes. Classes usually range from 12 to 20 people. The Littlebirds live on the grounds.
Sandoval’s letter says the tribal government believes the Littlebirds have other access points to their property.
“The Pueblo has never sought to interfere with Hamaatsa’s access to the road along the public BLM property,” he wrote. “Hamaatsa has adequate, if less convenient, access to its property by means of the road along the public BLM property.”
The road the pueblo mentions is not actually a road, according to BLM. It is an easement on BLM land that abuts the Hamaatsa property to the west. San Felipe abuts Hamaatsa on the north, south and east.
Development restrictions on the BLM and Hamaatsa land, as well as geographical features of the land, at the moment prevent Hamaatsa from carving new roads, according to the BLM and the Littlebirds.
In August 2009, San Felipe sent Hamaatsa a letter saying it was trespassing when they used the road to get to the center.
The Littlebirds say they attempted to talk to the pueblo, but without recourse they sued to have access to the road.
San Felipe told the courts the pueblo couldn’t be sued because tribes have blanket immunity under federal law.
Both a District Court and the state’s Court of Appeals sided with the Littlebirds, and the couple continued to use the road.
But the state Supreme Court ruled last month that its “hands are tied” by federal law that says, as a sovereign entity, San Felipe cannot be sued unless it gives up its immunity or Congress declares an exception.
Quoting the U.S. Supreme Court, the state justices said tribal immunity helps with the federal goal of “rendering tribes more self-sufficient, and better positioned to fund their own sovereign functions, rather than relying on federal funding.”
In his letter, San Felipe Gov. Sandoval commended the decision. “Like federal and state governments, Indian tribal governments are immune from suit unless the tribe waives its immunity or Congress permits such a suit. This is the law and has been consistently recognized by courts all levels throughout the country.”
He said other tribes in the state joined San Felipe’s appeals in support of strict reading of the immunity law.
Larry Littlebird, who is from Laguna Pueblo, Deborah Littlebird, his non-Native wife, and the Hamaatsa board issued a statement June 23 calling the situation “tenuous and unsafe.”
They said the conflict is cutting the Littlebirds off from access to watering their crops, which they sell at farmers markets, their pets and their work at the retreat center.
They have canceled classes and retreats, skipped harvesting produce for sale and stopped scheduling future programing.
Larry Littlebird said in the statement that the fight has affected his health and peace of mind.
“This behavior from the San Felipe Pueblo tribal government executed towards Hamaatsa is not the way exemplified by my Pueblo people. It instead reflects behavior worldwide of other humans where the oppressed become the oppressor,” he said.
Sandoval said in the letter, issued before the restraining order was granted, that the Littlebirds “described their situation in dramatic but untruthful terms” and that the state Supreme Court’s ruling was equitable.
“The Court recognized the long-embedded principle of tribal sovereign immunity,” he wrote. “Good neighbors should be truthful neighbors.”