Zuni Tribe v. United States , 12 Cl. Ct. 607 ( 1987 )

OPINION

YANNELLO, Judge.

This case involves a claim by the plaintiff for just compensation in the alleged taking of its lands. The claim is of the type formerly addressed by the Indian Claims Commission under 25 U.S.C. §§ 70 et seq. (repealed with the termination of the Commission in 1978 when their jurisdiction was transferred to the Court of Claims and later to that court’s successor, the Claims Court, under the Federal Courts Improvement Act of 1982, Pub.L. 97-164). Jurisdiction of this specific action, however, was conferred, by virtue of a special jurisdictional enactment, in section 2 of the Act of May 15, 1978, Pub.L. 95-280, 92 Stat. 244.

Two of the issues presented in this case have been the subject of trial before this court: (1) the extent of the plaintiff’s aboriginal land area which would allegedly be the subject of the taking; and (2) the events which allegedly constituted the taking. The parties have proposed findings of fact and briefed issues of law on both of these issues.

Due to the volume of the evidentiary record and the complexity of the facts surrounding these issues, the court has addressed them separately. This opinion, and the Findings of Fact accompanying it, address only the issue of the extent of the land in the claim area. A separate opinion (with accompanying Findings) will address the events allegedly constituting the taking.

The Findings of Fact accompanying this opinion encompass the proposals of the parties to the following extent: plaintiff’s proposed Findings Nos. 1 to 87 and defendant’s proposed Findings Nos. 1 to 30 and No. 42. The remainder of the parties’ proposed Findings relate to events after 1846, and thus are relevant to the issue of the alleged taking and will accompany the separate opinion addressing that issue.

Aboriginal title to an area claimed by Indians in cases of this type has been defined by the courts as actual, exclusive, and continuous use and occupancy for a long time (or from time immemorial).

Defendant contends that, in 1846, the Zuni area of exclusive use and occupancy was within what is presently the Zuni Reservation. Plaintiff contends that its use and occupancy at that time extended to the entire area claimed. As a factual matter, this court has resolved this issue in agreement with plaintiff, finding that the plaintiff had exclusive use and occupancy from time immemorial.¹

The Zuni tribe unquestionably used the entire claim area for permanent living accommodations as well as for life-sustaining activities including farming, hunting, grazing, gathering, worshipping, and a host of other activities. While not all of the area was used for all of these purposes, the court finds, as plaintiff contends, that the claim area encompasses those lands most thoroughly used for most purposes. (The claim area, for example, does not include the outer reaches used perhaps solely for religious worship and which the Zuni may have shared with other tribes. See, e.g., defendant’s brief, pp. 299-300.²)

Considering the entire pattern of use by the Zunis of all territory within the claim area, in determining use and occupancy, is consistent with precedent. See e.g., Confederated Salish and Kootenai Tribes v. United States, 8 Ind.Cl.Comm. 40 (1959); San Carlos Apache Tribe v. United States, 21 Ind.Cl.Comm. 189 (1969); Pau-nee Indian Tribe v. United States, 5 Ind. Cl.Comm. 268 (1957); Thompson v. United States, 8 Ind.Cl.Comm. 1 (1959); Snoqual-mie Tribe v. United States, 9 Ind.Cl. Comm. 25 (1960); Gila River Pima-Maricopa Indian Community v. United States, 24 Ind.Cl.Comm. 301 (1970).

Defendant also contends that the claim area, particularly that area not permanently inhabited but merely used for life-sustaining activities (sometimes referred to as the “sustaining area”) was used by other tribes as well, thus precluding a finding of exclusivity by the Zuni. This court has determined to the contrary.³

The use by other tribes, as described in the accompanying Findings, was either temporary and under agreement with the Zuni or was of specific short duration and the result of raid or other hostile intrusion. This court concludes that the use by other tribes, to such a limited extent, does not vitiate or detract from the court’s finding of plaintiff’s actual exclusivity of use and occupancy. See also: Snake or Piute Indians v. United States, 4 Ind.Cl.Comm. 608, 624 (1956); Omaha Tribe v. United States, 4 Ind.Cl.Comm. 627, 650 (1957); Red Lake, Pembina and White Earth Bands v. United States, 6 Ind.Cl.Comm. 247 (1958); Considerated Salish and Kootenai Tribes v. United States, 8 Ind.Cl.Comm. 40, 56-57 (1959); Quechan Tribe v. United, States, 8 Ind.Cl.Comm. 111, 127 (1959); Nez Perce Tribe v. United States, 18 Ind.Cl.Comm. 119, 129 (1967).

Having resolved that plaintiff has established actual exclusive use and occupancy of, and aboriginal title to, the claim area, it is not necessary to examine the parties’ contentions as to whether the special jurisdictional act in this case exempted plaintiff from the requirement of making such a showing.⁴

Having determined that the plaintiff has established aboriginal title (see, e.g., Pltf. brief, pp. 35-61; Deft, brief, pp. 295-301), it is unnecessary to treat the alternate contentions that plaintiff had “recognized title”. (Pltf. brief, pp. 24-34; Deft, brief, pp. 310-312.)

Conclusion of Law

Based on the foregoing, and the accompanying Findings, it is concluded that the plaintiff has established aboriginal title, and exclusive use and occupancy, of the area as claimed in its amended petition.

FINDINGS OF FACT⁵

A. JURISDICTION

FINDING NO. 1. Jurisdictional Status of Plaintiff:

The Zuni Indian Tribe is a sovereign American Indian tribe organized pursuant to the provisions of the Indian Reorganization Act of June 18, 1934, (48 Stat. 984) as amended by the Act of June 15, 1935 (49 Stat. 378). The majority of its members now reside on the Zuni Indian Reservation in New Mexico. The constitution and bylaws of the Zuni Indian Tribe were adopted by the Tribal Council, ratified by a vote of the tribal members, and approved by the Secretary of the Interior, thus empowering the trival government to represent the interests of the Tribe. The Zuni Indian Tribe thus described is the entity entitled to sue under the provisions of the Act of May 15, 1978 (92 Stat. 244).

FINDING NO. 2. Jurisdiction of the Court, Timely Filing:

By the Act of May 15, 1978 (92 Stat. 244), jurisdiction was conferred upon the United States Court of Claims (and, now, its successor the Claims Court) to hear, determine, and render judgment on any claims of the Zuni Indian Tribe against the United States with respect to any lands or interests therein, in the states of New Mexico and Arizona, held by aboriginal title or otherwise which were acquired from the Tribe without payment of adequate compensation by the United States. The Zuni Indian Tribe timely filed its claim herein within three years of May 15, 1978, as required by the aforementioned jurisdictional act.

FINDING NO. 3. Description of the Claim Area:

The Zuni Indian Tribe asserts a claim herein that a large tract of land in the States of Arizona and New Mexico was exclusively owned, used, and occupied by the Zuni Tribe from time immemorial (hereinafter the “claim area”), and that the lands so held by “aboriginal title or otherwise” were taken from the Tribe by the United States without payment of adequate compensation at various designated times between 1846 and 1939. The exterior boundary of the aboriginal land claimed by the plaintiff is outlined on the map appearing as Plaintiffs Exhibit No. 240 and is described as follows:

Beginning at the point located on the summit of Humphrey’s Peak of the San Francisco Peaks located in the present State of Arizona; thence south to Mormon Mountain; thence south to the lookout tower on Baker Butte; thence in a southeasterly direction along the Mogol-lón Rim to McNary, Arizona; thence southeast to Baldy Peak in the Mt. Baldy Wilderness; thence south to Willow Mountain, in the State of Arizona; thence east to Willow Mountain in the State of New Mexico; thence northeast to Granite Mountain near the town of Magdalena, New Mexico: thence northwest to Cebollita Peak; thence in a northerly direction around the western fringe of the Malpais (lava flow) to Grants, New Mexico; thence northeast to Mt. Taylor; thence northwest to Hosta Buttes; thence northwesterly to Mexican Springs; thence westerly to Ganado, Arizona; thence west to Steamboat Canyon; thence west to Steamboat Wash; thence south along the Steamboat Wash to its junction with the Pueblo Colorado Wash; thence in a southwesterly direction along the Pueblo Colorado Wash to its junction with Cottonwood Wash; thence southwest along Cottonwood Wash to Win-slow, Arizona; thence in a northwesterly [sic] direction along the Little Colorado River to Leupp, Arizona; thence west to the place of beginning.

FINDING NO. 4. Exceptions to Lands Claimed:

The following three tracts of land are excluded by the Zuni Indian Tribe from the claim asserted herein:

(A) The present Zuni Indian Reservation, New Mexico, held in trust by the United States.

(B) The Zuni Salt Lake which was made part of the Zuni Indian Reservation by the Act of May 15, 1978 (92 Stat. 244), and is described as follows:

Lots 3 and 4, east half southwest quarter, west half southeast quarter, section 30, township 3 north, range 18 west, lots 1 and 2, east half northwest quarter, west half northeast quarter, section 31, township 3 north, range 18 west, southeast quarter, section 25, and east half northeast quarter, section 36, township 3 north, range 19 west, all of New Mexico principal meridian, New Mexico, containing approximately 618.41 acres, more or less.

(C) The lands immediately surrounding Zuni Heaven or Kolhu/wala:wa which are described as follows:

Beginning at the Northeast corner of Section 26, Township 15 North, Range 26 East, Gila and Salt River Base and Meridian; thence west to the Northwest corner of Section 28, Township 15 North, Range 26 East; thence South to the Southwest corner of Section 16, Township 14 North, Range 26 East; thence East to the Southeast corner of Section 14, Township 14 North, Range 26 East; thence North to the point of beginning. ALSO all of Section 27, Township 14 North, Range 26 East, Gila and Salt River Base Meridian.

B. PHYSICAL FEATURES OF CLAIM AREA

FINDING NO. 5. Importance of Land Forms:

The Zuni claim area contains a wide variety of land forms. In the north is the Colorado Plateau, a high table land containing mesas or valleys and broad plains broken by occasional mountain ranges. South and west of the claim area is the Basin and Range Province consisting of wide river valleys separated by long mountain ranges. Between the Colorado Plateau and the Basin and Range Province are the rugged and steeply pitched mountains of the Transition Zone. The steep escarpment of the Mogol-lon Rim separates the Colorado Plateau from the mountains of the Transition Zone. The eastern end of the Mogollon Rim is buried under the high volcanic mountain ranges of the Mogollon Slope, which enclose a large basin in the Plains of San Agustín. The highest mountains in the Zuni claim area are the San Francisco Peaks to the west at 12,633 feet, Mt. Taylor to the east at 11,389 feet, and Baldy Peak in the White Mountains to the south at 11,403 feet. Between the bottom of the Grand Canyon in the northwest corner of the claim area and the highest mountain peaks is found a vertical relief of over 10,000 feet. The claim area consists of diverse physical landscapes and varied environments and resources.

FINDING NO. 6. Zuni Use of the Land and its Resources:

The Zunis made use of resources from every part of their environment within the claim area.⁶ The landscape of the Zuni claim area encompasses a highly varied physical environment offering many valuable resources needed to sustain human life. Geology, land forms, drainages, precipitation, temperature, and biotic communities all vary from place to place within the claim area, and the availability of many critical resources varies from year to year as well. This environmental variability requires an extensive and flexible land use system, so that if a particular resource is not available at one place when it is needed it can be obtained elsewhere.

FINDING NO. 7. Effect of Drainages and Hydrology Upon Zuni Land Use:

The drainages and availability of water were critical elements determining the location of cultivated crops and collectable plant materials traditionally used by the Zunis. The drainages of the Zuni claim area are separated by the Continental Divide into east and west following streams. To the east, the streams flow to the Rio Grande. To the West, the streams, including the tributaries of the Little Colorado River, flow to the Colorado River. Water flows into but not out of the closed basins of the north plains and the Plains of San Agustín. To the north, the San Juan River drainage carries water east of the Chuska Mountains in a northerly direction to the San Juan River and thence to the Colorado River. Important areas of water resources include all of the high mountain peaks where winter snows provide surface runoff during the spring melt as well as recharge subterranean water tables. In general, water resources in the claim area become increasingly scarce at lower elevations.

Traditional Zuni agricultural land use was concentrated in the drainage of the Upper Little Colorado River including the Zuni River Valley.

The Zuni also used the drainage of the Upper Little Colorado River for agricultural purposes. (The area is depicted on Plaintiff Ex. Nos. 240 and 245 including the area of the Upper Little Colorado River between Springerville and Winslow.) The heavily faulted geologic structure of the Zuni Mountains has resulted in many springs in the Zuni drainage. Although instream flow of the Zuni River is not great, the presence in the Zuni River Valley of numerous springs and a water table high enough to allow wells to be dug by hand have provided water for domestic and agricultural use by the Zuni Indians through the centuries.

FINDING NO. 8. Effect of Precipitation and Climate Upon Zuni Land Use:

Precipitation in the form of rain and snow is one of the most important aspects of climate in the Zuni claim area. In general, the climate of the Zuni area is semiarid and temperate. Much of the climatic variability of the Zuni area is related to the region’s diverse land forms. Higher elevations and mountain ranges tend to have greater precipitation, while lower elevations are generally drier. About one-half of the precipitation falls in the summer, often in the form of localized torrential rain storms which cause rapid runoff and soil erosion. Winter precipitation in the form of snowfall melts off gradually in the spring, recharging the water system of the region. Between the 6,000 and 7,000 foot elevations on the Colorado Plateau, the most favorable zone of human occupation, annual precipitation averages 11-16 inches per year. One of the most important aspects of climate in the Zuni claim area is the variation in precipitation from year to year. In any- given year, a particular area can receive either much more or much less rain and snow than the average. Localized droughts are common in the claim area, and they greatly affect the availability of plant and animal resources. This situation requires mobility and flexibility in the land use system, so that if resources are not available in one area, they may be obtained in another area. Thus, a relatively large “sustaining area” was required.

FINDING NO. 9. Effect of Temperature and Frost Free Season Upon Zuni Land Use:

Temperature is an important factor in the climate of the Zuni claim area because it controls the growth of vegetation and amount of evaporation. Like precipitation, temperature varies with elevation. Every 1,000 foot increment of elevation results in a decrease of 3.3 degrees Fahrenheit of the average annual temperature. Frost occurs when the temperature drops below 32 degrees, a condition which kills annual plants and crops. The annual growing season is thus determined by the length of the frost-free season between the last freeze in the spring and the first freeze in the fall. Zuni Pueblo, at 6,282 feet elevation, has an average frost-free season of 156 days. A few days difference in the length of the frost-free season can be vital to crops like com which have a long maturation period. In the semi-arid climate of the Southwest, temperature also affects evaporation of moisture from soil and plants. High temperatures and winds in the spring and summer dry up available moisture, with a resulting adverse effect upon plant growth.

With the evidence of variations in elevation, temperature, and precipitation within parts of the Zuni claim area (and over time), it is established that agriculture (and the raising of livestock) would likewise vary. In anticipation of possible crop (and stock) losses, the Zuni were required to continue with traditional hunting and gathering practices as well.

FINDING NO. 10. Zuni Use of Biotic Communities:

The rich diversity of wild plants and animals found within the claim area provided the Zunis with adequate food and materials to sustain life. Plants and animals live and function together in natural biotic communities. In the Southwest, these biotic communities are primarily structured by temperature and available moisture, which, in turn, are related to elevation. Each biotic community contains numerous species of plant and animals, but is named after the dominant form of vegetation. Many biotic communities are found in the Zuni claim area, offering a rich diversity of resources. In general, grasslands and scrublands are found at the lower elevations, and woodlands and forests at the higher elevations. The Zuni Indian land use system made use of resources from every biotic community within the Zuni claim area.⁷

C. PREHISTORIC PERIOD (5,000 B.C.—A.D. 1539)

FINDING NO. 11. Early Aboriginal Use of Claim Area From 5,000 B.C. to A.D. 1,000:

At least as early as 5,000 B.C. the land now known as the American Southwest, including the portion now designated as the Zuni claim area, was inhabited. (From 5,000 B.C. to approximately 1,000 A.D. may be simply described for our purposes as the Archaic Period.) Among the inhabitants of the Southwest were the ethnological groups of Patayan, Hoholcam, Mogollon and the Anasazai, the last of which, at least, may be said to be tied to Zuni ancestry. (See also Finding 14 infra.)⁸ The Archaic period in the Southwest generally, including the Zuni claim area, began largely as a hunting and gathering life style and closed, with the introduction of agriculture from Mexico and the ability to grow crops in arid climates, with the introduction, at least, of a more sedantary lifestyle.

FINDING NO. 12. Wide Distribution of Early Zuni Habitation Sites:

By the end of the Archaic Period (between 500 A.D. and 1,000 A.D.) an early and extensive trade network was in operation, as shown by the presence of various trade goods in parts of the Zuni claim area. The trade system, together with the introduction of early agriculture, led to the development of more centralized communities; pithouses and underground habitations appeared within the claim area.

Between A.D. 900 and 1,000, a large number of surface pueblos were inhabited in the Zuni claim area. By the year A.D. 1,000, the culture within the Zuni claim area had become a part of the Chacoan complex, characterized by an expansive network of trade relations and very large communities with hundreds of rooms housing thousands of people near very large Kivas. .In the Zuni claim area, ancestral pueblos of the Zuni such as the Kiatuthlan-na, Village of the Great Kivas, and White Water serve as examples of these early, large communities and ancestral Zuni homesites were located throughout the claim area. (See also Finding No. 14 infra.)

FINDING NO. 13. Areas of Ancestral Zuni Occupation:

Both archaeological and anthropological research demonstrates a continuity of occupation of the claim area by ancestral Zunis, who developed knowledge of and economic dependence upon the entire claim area. Pottery shards and other archaeological findings indicate the substantially homogeneous nature of the Zuni culture within the claim area. Dr. Leslie Spier’s surveys show ancestral Zuni occupation of the region south of the San Francisco Peaks to the Mogollon Rim and southeast along the rim to the region of Baldy Peak in the Mt. Baldy Wilderness area. Dr. Edward B. Danson has also confirmed Zuni occupation of the Little Colorado River country, the Zuni River and the Puerco River of the West and their tributaries, and the country as far as the Continental Divide south of Highway 66. Dr. John Renaldo noted that the Zuni culture area at its inception was broadly Chacoan and more closely related to the Anasazi culture than to the Mogol-lon. However, Mogollon influence in the Zuni culture can be seen as early as the 8th Century and became significant in the 14th Century, when Mogollon populations joined the ancestors of the Zuni people in the Zuni River Valley. The ancestral Zunis developed upon the lands within the claim area.⁹ (See also Finding No. 14 infra.)

FINDING NO. 14. Merger of Mogollon and Anasazi Into Zuni Culture:

The Zunis trace their origins to the Mo-gollon and Anasazi cultures which merged in the Zuni claim area during prehistoric times. Between as early as A.D. 600 and continuing to A.D. 1350, the Zuni Indians’ ancestors were members of both the Anasazi and Mogollon cultural traditions. In the Zuni area there was a broad trend to about A.D. 1200 toward consolidation of villages and the building of larger and more sophisticated villages which were Anasazi in their cultural orientation and were so-called “Chaco Outliers,” part of the Chaco Canyon network. As the importance of the Anasazi Chacoan area faded, the relative importance of the Zuni cultural area increased. The southern and western portion of the Chacoan interaction system appears to have reorganized to interface with new areas, principally the Little Colorado River Valley and the Mogollon Mountains.

The large pueblos constructed in the Zuni drainage between A.D. 1250 and 1540 reflected an interaction with Anasazi populations to the west and Mogollon populations to the south. The Mogollon culture was centered in the Mogollon Mountains, the mountainous zone on the southern edge of the Basin and Range province. In its later development, A.D. 1000-1400, Mogollon culture was influenced and became similar to Anasazi culture in terms of large pueblo/Kiva architecture and increased religious paraphernalia. During this later period the Mogollon groups consolidated. Habitation in the Upper Gila area was abandoned about A.D. 1300, and the Mogol-lon people likely joined the Pima-Opata tribes and the Zunis to the northeast. The large pueblos in the White Mountains at the headwaters of the Little Colorado River were occupied to A.D. 1300, with the people moving thereafter to Zuni or Hopi or the Silver Creek area along the Mogollon Rim. Prominent Mogollones built large pueblos in the Winslow-Holbrook region such as Homolovi and Chevelon and when these villages were deserted some of the clans went to Zuni and others went to Hopi.

By A.D. 1450 the Zuni claim area was the center of cultural and economic activity for the region. Anasazi and Mogollon populations moved to the large pueblos in the upper Zuni valley by choice, not because of Athapaskan intrusion. There is no evidence of Athapaskan groups such as Apache or Navajo in the Zuni claim area during this period. Only those people ancestral to the present Zuni Indians used the area.

FINDING NO. 15. Zuni Absorption of Marginal Populations:

Throughout the later prehistoric period (A.D. 1250 to A.D. 1350) period, a process of periodic absorption of marginal populations into the Zuni Tribe took place, coupled with gradual centralization of all people from the countryside of the far corners of the claim area into towns in the Zuni River Valley.

FINDING NO. 16. Zuni Language Serves as Unifying Force:

The Zuni language unified the diverse elements of Zuni ancestry. The Zuni are considered by anthropologists to represent one of the early groups to develop pueblo culture in the southwest. The Zuni language is unique and is not shared by any tribe in New Mexico or Arizona. The Zunis nearest linguistic relatives are the Penu-tian-speaking tribes in the central valley of California. Marginal populations absorbed by the Zunis adopted the Zuni language as their own.

FINDING NO. 17. Zunis Did Not Abandon Outlying Portions of Claim Area When Habitation Sites Were Consolidated:

The Zuni culture grew stronger and more powerful as the Zuni people consolidated their homesites into the Zuni River Valley. By A.D. 1450, all of the habitation sites within the Zuni claim area had been consolidated into a series of villages within the Zuni Valley. Only Zuni Indians resided within the claim area, bordered on the northwest by the Hopis and on the east by the Acomas. The movement into the Zuni Valley from outlying areas may have been prompted by choice to live a communal lifestyle, to participate in social and religious functions, and to have access to a permanent and reliable water supply. The Zunis did not abandon¹⁰ the outlying portions of their sustaining area or claim area when they consolidated their homesites, but continued to make traditional use of the entire area for farming, hunting, and other life-sustaining activities.

FINDING NO. 18. Continuous Zuni Knowledge and Use of Entire Claim Area:

Notwithstanding the homesite consolidation, the Zuni people retained their economic dependence upon the extensive lands of the claim area.¹¹ As the Zuni Valley consolidation took place, the inhabitants from the fringe areas brought with them an extensive and detailed knowledge of critical and useful resources from throughout the claim area. Exploitation of these resources continued unabated. Plants, animals, birds, clays, pigments, and/or minerals from within the entire area were utilized. The Zunis exploited water ways and watered lands, mountainous areas, and arid lands. Zuni resource use and procurement throughout the historical period demonstrates extensive knowledge and use of various resources from all parts of the claim area. Even today Zunis possess detailed knowledge of areas on the Little Colorado drainage, the Mogollon Rim, the Reserve Area, the San Francisco Peaks, and other sites distant from the claim area to west, north, east and south.

FINDING NO. 19. Zuni Sustaining Area:

The extensive lands which surround the core area of Zuni habitation are referred to as the Zuni “sustaining area” because within such lands are produced the wild plants and/or animals and/or minerals upon which the Zunis sustained themselves. The severe limitations placed upon agriculture by the climate of the claim area meant that a large land base was necessary to support the native economy of the Zuni Indians. A large sustaining area was an ecological necessity to insure the long term stability of a large concentrated population in the arid Southwest. Sufficient water was needed to support agricultural production, and to support the wildlife and wild plants that provided important economic and medicinal resources. The Zuni villages achieved a size and stability not usual in the Southwest. While modern communities have surpassed the Zuni Pueblo in size, they do not have the long term self-sufficiency afforded by the traditional Zuni land use system. The most notable aspect of the physical environment of the Zuni region was its great diversity of altitudes, land forms, geological resources, and biological communities. The Zuni sustaining area was larger than the claim area since the sustaining area included some areas of joint use with other Indian tribes outside of the claim area.

FINDING NO. 20. Zuni Subsistence Strategy:

The Zunis used the sustaining area extensively as an integral part of their subsistence strategy. The subsistence strategy of the Zuni traditionally involved a mixture of agriculture, hunting, and plant gathering that could be adjusted to the varying climatic conditions through the use of various geographical regions within the claim area. Drought was a recurrent condition; thus, the large Zuni population had to have emergency resources to draw upon. When crops failed, the Zunis relied on surrounding grasslands and mountain forests to supply wild game and foodstuffs.

FINDING NO. 21. Zuni Pottery and Architectural Ruins:

Pottery shards and architectural ruins found throughout the claim area attest to the fact that ancestral Zunis made extensive use of the sustaining area. Tremendous quantities of pottery shards of various designs found in strata underlying the entire claim area verify that the Zuni people and their ancestors occupied the claim area without interruption from A.D. 650 until the present time. The architectural/archaeological sequence began with small pithouse villages, underwent a change to surface masonry structures, and culminated in large pueblos around A.D. 1300. The Zuni communities were the manufacturing centers of several pottery types that had wide distribution throughout the claim area as well as outside the claim area, indicating that pottery was often imported by other Indian Tribes as a tradeware in exchange for other goods.

FINDING NO. 22. Ancient Zuni Ties to the Land:

The Zuni Indians have ancient cultural and historical ties to their land. The Zunis and their ancestors have lived along the Zuni River and used the surrounding country to sustain themselves for over a thousand years. During that time the Zunis have acquired an intimate knowledge of the resources and landscape of their homeland throughout the claim area. The ancient ties of Zuni people to their land is presently manifest in the tribal oral tradition about Zuni origin and migration and in the physical artifacts representing the archaeological history of Zuni culture.

The land of the claim area is marked by numerous religious shrines (and is today considered by the members of the Zuni tribe to be sacred.)

FINDING NO. 23. Zuni Migration Tradition (as Recounted):

Zuni oral tradition and religion recount ancient migrations and sacred landmarks or shrines which had continuing importance in the Zuni lifestyle.¹² According to Zuni tradition, the people at Zuni migrated from other places, particularly “The Place of Beginning” located at Ribbon Falls in the Grand Canyon. In their migration eastward from the Grand Canyon to their present location, the Zunis stopped at a number of places which are still remembered in their prayers and visited periodically to make offerings. After their emergence from the Grand Canyon, the first major stop was near the San Francisco Peaks where the medicine plants had “settled” so that the Zunis would have a source nearby. The next stop was Canyon Diablo near Two Guns, Arizona, where the ruins of their settlements are still visited and offerings are made to their ancestors. The Zuni people continued on to the Woodruff Butte southeast of Holbrook, Arizona, which is the source of a special medicinal plant used by their rain priests for divination and other purposes. The Zunis next stopped at a site located near the confluence of the Zuni River and the Little Colorado River where they resided for “four years” (a period of at least forty years).

Nearby this confluence of the Zuni and Little Colorado Rivers, is the sacred lake of Zuni, the site of “Zuni Heaven,” the place where spirits of the deceased go to join their ancestors after death, and where the Council of the Gods resides. Pilgrimages from Zuni are made to this area regularly. Shrines are located in the Zuni Heaven complex in the Stinking Springs Mountains west of Zion Reservoir and are closely related to the Kachina dance groups and the Koyemshi (sacred clowns). Additional Zuni shrines are also located in the mountains surrounding the headwaters of the Little Colorado River south of Springfield, Arizona. From the sacred lake near the Little Colorado River to the center of Zuni there are many springs where the Zunis stopped for varying periods. All the places mentioned in the oral tradition are of religious significance to the Zuni.

Thus, starting at “The Place of Beginning” in the Grand Canyon, the Zunis migrated to San Francisco Peaks and on across the State of Arizona to Zuni Heaven, then searched in several directions before finding the “center” or “middle place” in the upper valley of the Zuni River.

Zuni tradition states that during the migration to the Little Colorado River Valley the tribe split. Part of the people went into the Zuni heartland, part of the people went south, never to return, and part of the people first went north, then east to the Rio Grande Valley, finally returning to join the rest of the Zuni Tribe in the Zuni River Valley. The migration of the Zuni people into their heartland established sacred areas and shrines in all directions throughout the Zuni claim area and beyond. These areas and shrines were and are remembered in prayers and songs and were and are visited and cared for on a continuing basis to the present.

FINDING NO. 24. Absence of Other Indians in the Claim Area:

During the prehistoric period, the sole occupants of the claim area were the Zuni people who used the area on a regular and continuing basis.¹³ There is no evidence of Apache or Navajo use of the Zuni claim area during the prehistoric period. At the close of the prehistoric period the only neighbors of the Zuni were the Acoma Indians and Rio Grande Pueblos to the east, the Hopi Indians to the northwest, the Ha-vasupi to the west, the Opata Indians to the south in Mexico.

FINDING NO. 25. First European Contact With the Zuni People:

When Spanish explorers first entered the claim area, they searched for the Zuni peo-' pie who had been the subject of earlier second-hand reports. First reports of the Zuni were received by the Spaniards from Nuno de Guzman in 1529 as he searched northward for wealth in New Spain. The Cabeza de Vaca group, which passed many miles south of Zuni in the early 16th Century, also heard tales of a highly civilized people to the north who lived in houses and wore cotton clothes. The reports from Nuno de Guzman and Cabeza de Vaca prompted the expedition of Fray Marcos de Niza in 1539. He was accompanied by one of the members of the Cabeza de Vaca party, the Moor Estevan. Estevan, in a vanguard group, reached Zuni in 1539 after crossing the Despoblado. The accounts of the expedition note that no other Indians were seen in the area between the Gila River and the central Zuni villages.¹⁴ Es-tevan was killed by the Zunis for inappropriate behavior, and Fray Marcos, after allegedly viewing the village of Hawikuh from afar, retreated quickly to Mexico.

FINDING NO. 26. Kingdom of Cibola Recognized by Spain:

When the Spaniards first received vague reports of Zuni in the late 1530’s, the Zuni people and their ancestors had been living in the claim area for over a thousand years. The “Kingdom of Cibola” was a term used by the Zuni to designate their sustaining area or claim area over which the Zunis exercised dominion. The Spaniards referred to the Kingdom of Cibola as a province occupied by the Zuni, within which were seven villages and wherein they expected to find the legendary “Seven Cities of Gold.” Spaniards treated The Kingdom of Cibola as a foreign nation and not as an area occupied by a savage tribe. The Spanish king’s dominion was formally extended over this area, in the Act of Obedience and Vassalage for Zuni of 1598.

FINDING NO. 27. Exclusive Zuni Occupation of the Kingdom of Cibola

The boundaries of exclusive Zuni use and occupancy are coextensive with the Kingdom of Cibola. The Zunis used and controlled the claim area, but also made more limited use of areas outside of the claim area to the northwest of the San Francisco Peaks up to the Grand Canyon; the area north to Chaco Canyon; Horse Lake in the Jucarilla Mountains; the Blue Mountains in Utah; and east to the Jemez Mountains and the Sandia Mountains; and to the south of the Mogollon Rim in the Gila River Valley.

FINDING NO. 28. Zunis Battle Coronado:

The Zuni warriors protected their boundaries and engaged in battle with the Coronado expedition. Prompted by the reports of Fray Marcos, Coronado organized and led a large expedition towards the province of Cibola in 1540. The Zunis met Coronado a number of miles away from the central villages, evidently warning the expedition not to continue into their territory. The Spaniards noted signal fires used by the Zunis to warn of their approach. At night the Zunis ran off the Spaniards’ horses, but after a short battle at Hawikuh in which Coronado himself was wounded, the Zunis rendered obedience to the King of Spain on July 11, 1540. Following this episode, peace was maintained between Coronado’s forces and the Zunis.

FINDING NO. 29. Coronado’s Written Descriptions Confirm Extensive Zuni Use of Cibola:

The written descriptions by the chroniclers of the Coronado Expedition confirmed extensive Zuni use of the claim area. The chroniclers of the Coronado Expedition described the conditions in the Zuni villages after they returned to Mexico City. They described the gathering, hunting, trading,. and agricultural practices of the Zunis. Gathering practices included the collection of various plants which were used in the manufacture of native textiles. The Zunis were observed gathering pine nuts, one chronicler reporting that “the natives gather and store pinon nuts for the next year.” Other gathered items which the chroniclers observed were reeds used for mats and roofing and timbers used for building construction. The reports described Zuni domestication of turkeys and the use of turkey feathers for religious purposes. Trade of turquoise, salt, and other items was also observed. Hunting was of particular importance to the Zunis, as evidenced by chroniclers’ reports that the Zunis possessed well-tanned skins from deer, rabbits and other animals, which were used for clothing and knee-boots. They also noted that heads of wild goats, paws of bears, and skins of wild boars were seen at the pueblo and described other game which included deer, leopards, and large elk. The Zuni lifestyle as described by Coronado’s chroniclers indicated the storage of many food stuffs and other items to be used later in the year.

FINDING NO. 30. Rodriquez-Chamus-cado Missionary Expedition of 1581:

The Spaniards made an effort to convert the Zunis to the Christian faith with the Rodriquez-Chamuscado Expedition of 1581. Since general disappointment prevailed following Coronado’s failure to find gold in Cibola, further expeditions were delayed to the Zuni claim area for forty years. Inspired by potential missionary work among the Pueblo Indians, Fray Augustin Rodriquez and Francisco Sanchez Chamuscado traveled up the Rio Grande as far north as Santa Fe and then westward to Acoma and finally to Zuni. The expedition recorded the cultivation of com and the presence of large stone houses which were whitewashed and painted, each having passageways, windows, doorways, and wooden ladders.

FINDING NO. 31. Espejo Expedition of 1583 Protected by Zunis:

In addition to the Espejo Expedition of 1583 noting Zuni irrigation of crops and hunting, they recorded how they were protected by Zuni warriors on the trip to Hopi. The expedition led by Merchant Antonio de Espejo reached Zuni in 1583 after traveling from the Rio Grande Valley. The Spaniards spent time at Zuni between excursions looking for mines, which they never found. They found crosses built by previous expeditions and three Mexican Indians left at Zuni by Coronado. Expedition members found evidence of irrigation and noted that the Zunis spun fiber and wove blankets. After spending some time at Zuni, Espejo traveled more than a dozen leagues towards Hopi stopping at the pueblo Mat-saki and later camping at a water hole where the Zuni Indians caught many rabbits which they gave to the expedition. At least several dozen Zuni warriors accompanied the Spaniards over the trail to Hopi. On the way there the party met a group of Zunis returning from Hopi. The Zuni travelers warned the Spaniards that the Hopis planned to fight, but since the expedition was protected by Zunis, the visit to Hopi proved peaceful. The Zuni warriors gave the Spaniards protection from potentially hostile Hopis, since there were no other Indians in the area.

FINDING NO. 32. Spain Recognizes Zuni Nation with Acts of Obedience in 1598:

Spain officially recognized the Zuni Nation and pledged Spain’s support to protect the Zuni Nation against its enemies. Juan de Onate was the first successful colonizer of the northern frontier of New Spain. He officially took possession of the area on April 30,1598, and established a settlement near the San Juan Pueblo on the Rio Grande. He later moved his settlement to Santa Fe in the year 1608. His relationship to Zuni was important in that he placed the Zuni Province officially under the sovereignty of Spain with formal Acts of Obedience and Vassalage. In the official Act of Obedience and Vassalage by the Indians of Zuni, Onate’s men made the following representation:

He told them that they had come to their lands to bring them to the knowledge of God and the King our Lord, on which depended the salvation of their souls and their living securely and undisturbed in their nations, maintained in justice and order, secure in their homes, and protected against their enemies, and that he had not come to do them any harm.

FINDING NO. 33. Exclusive Zuni Use of Claim Area:¹⁵

The early Spaniards never saw other Indian groups within the claim area thus substantiating the Zunis claim to exclusivity. The Spaniards Fray Marcos de Niza and Coronado referred to the area between the Gila River and the Zuni Pueblo as the Despoblado. The Despoblado began in the country between the Gila River and the headwaters of the Little Colorado River in eastern Arizona and ended at the periphery of modern Zuni country; thus, Cibola was the first populated area encountered by the Spaniards as they proceeded northeastward from the Gila River Valley. None of the aforementioned expeditions (Coronado, Rodriquez and Chamuscado, Espejo) reported Apaches or Navajos within the Zuni area. The Despoblado gave the Zunis in Cibola a position of relative isolation, although the area was marked with trails used for conducting trade with tribes to the south and west.

D. ZUNI DURING THE SEVENTEENTH CENTURY

FINDING NO. 34. Zunis Land Rights Protected Under Spanish Law:

Under Spanish law, the Indian tribes were required to live in pueblos or villages, but movement into a village did not result in the loss of their outlying lands. This Reducción Policy, as it is known, was interpreted by local Spanish authorities as allowing Indian people to continue to use land they had used prior to the imposition of Spanish government, while at the same time restricting habitation to villages wherein Indians could be taught the arts of civilization. Zuni people were not required to move since they were already living in villages.

FINDING NO. 35. Alcalde System Provided Political and Military Support for Zuni Land Use:

The creation of the office of an Alcalde Mayor at the Alcaldia of Zuni in 1659 or 1660 was recognition of a political province or Alcaldía under Spanish law. The establishment of the Alcaldia had no adverse impact upon traditional Zuni land use. The Spaniards did not attempt to occupy the area but occasionally quartered soldiers there to protect the Alcalde Mayor. The only area which was occupied by the Spanish at Zuni was the church and cemetery and a small amount of space that a few soldiers used from time to time on a temporary basis.

FINDING NO. 36. Zuni Land Ownership Under Spanish Law:¹⁶

The Zunis were secure in the use and ownership of their lands under the laws of Spain. The Zunis were considered vassals and subjects of the Spanish Crown. They voluntarily accepted Spanish jurisdiction by Acts of Obedience and Vassalage. According to Spanish law as set out in the Recopi-lación the ownership of lands remained with the Spanish subjects upon their voluntary acceptance of Spanish sovereignty, and in turn the crown obilgated itself to protect its vassals in their homes and lands. The Zunis were considered to be Pueblo Indians or civilized Indians under the law as distinguished from “wild or uncivilized tribes,” and as such were given full protection of the law. The extent of the lands belonging to the Zuni Tribe, while never mapped or documented by Spanish chroniclers, were nonetheless determined by the Zuni people themselves according to their own tradition and included as part of the Spanish realm. The lands protected by the crown during Spanish rule were those lands of the traditional Zuni claim area. In 1812 the Spanish King issued a proclamation which was later interpreted to mean that all Pueblo Indians were citizens regardless of origin. As citizens they were still entitled to the use of their traditional lands.

FINDING NO. 37. Zuni Autonomy Under Spanish Law:

The Zuni Tribe as an entity retained autonomy or the right of self-government under the law of Spain. The second Audien-cia in Mexico, from 1530 to 1535, passed a series of ordinances which essentially revised administration of Indian pueblos and established traditions which exist today. Indian communities were granted the right of self government and the administration of justice under their own elected officials and the Tribe was considered to be the land owning entity. This practice was prevalent in New Spain by the time Onate settled in New Mexico. Further policy changes occurred in 1620 when the Viceroy issued decrees by authority of the Spanish King to the Governor of the areas designed to secure utmost autonomy for Pueblo Indians. Tributes were to be paid only on condition of the conversion of the Pueblo people to the Christian faith. Since the Spaniards considered the Zunis’ conversion incomplete, they were exempted from paying tribute to the crown. Being exempted from tributes probably tended to lessen motives for official visits to Zuni.

FINDING NO. 38. Zunis Resist Spanish Efforts to Stop Shrine Visitation:

The Zuni people reacted violently when Franciscans attempted to stop the Zunis from practicing certain tradition religious ceremonies. The only recorded incident where Spain attempted to interfere with the Zuni custom and tradition was the episode of the Franciscan Fray Francisco Le-trado. He apparently was interested in preventing the Zunis from practicing what he considered to be pagen religious ceremonies. He and Fray Martin de Arvide were killed by the Zunis in 1632. On October 7, 1672, La Purísima Concepcion de Hawikuh Mission was burned and destroyed and the missionary Fray Pedro de Avila y Ayala was killed. Evidence indicates that the Zunis blamed the attack on the Apaches, but it seems certain that the Zunis assisted since the raid was directed at the missionary because he did not tolerate their religious practices. Following that occasion the Zunis continued undisturbed at Hawi-kuh. During the Pueblo Revolt of 1680, Fray Juan de Bal, assigned to Halona, was killed by rebelling Zunis.

FINDING NO. 39. Zunis Revolt Against Spain:

The resistance of the Zuni people to proposed change in their customs and religion culminated in the Zuni Tribe joining the Pueblo Revolt. The Pueblo Revolt of 1680 resulted in all of the Spaniards being driven out of New Mexico. The Zunis and the Hopis willingly participated in the hostilities and gave support to the neighboring pueblos on the Rio Grande. However, in expectation of retaliation from the Spaniards, the Zunis commenced fortification of Corn Mountain.

FINDING NO. 40. Zuni Enhanced Defensive Capability with Construction of Com Mountain Fortress:

In anticipation of Spanish reprisals for the Pueblo Revolt, the Zunis enhanced their defensive capability by constructing the Corn Mountain Fortress. Corn Mountain is a large mesa with sheer walls which rise several hundred feet from the floor of the Zuni River Valley to the flat mesa top. Corn Mountain was a natural sanctuary or fortress where the Zuni people could go when under heavy attack. There is no indication of its use as a defensive site prior to the arrival of Coronado. The Zun-is, after assessing the power of Spanish horses, guns, and armor, however, began making fortifications on top of Com Mountain and used the Mountain as a refuge or defensive position during succeeding times of crisis. The mountain was so used during the decade following the Pueblo Revolt of 1680, the Zunis made extensive fortifications, built homes, stored quantities of food and water, erected archer booths, collected heaps of flingstones, and stacked ammuni-tions of heavy rocks on the mountain. The Zunis did not live there permanently, but prepared the site for their own protection in the event of an anticipated retaliation by the Spaniards.

FINDING NO. 41. Zunis Unite Villages and Strengthen Political and Social Organization:

The Zuni people united themselves in a single village to strengthen and combine their political, religious and social organizations. The concern over Spanish reprisals in the years following the Pueblo Revolt of 1680 brought about tremendous internal and external changes in Zuni society. The Zuni leaders, recognizing the need for unity against the common Spanish enemy, rebuilt the Zuni villages after 1692 into one consolidated village. Smaller villages in the outlying area continued to be used seasonally. The supreme council Bow Priests, the arm of the Priestly Council, was also centralized. Communication was thus enhanced and central leadership provided Zunis with the ability to mobilize people for military purposes.

FINDING NO. 42. Voluntary Reinstatement of Spanish Sovereignty:

The Zunis and Spaniards were able to reconcile without bloodshed, when the Zuni Tribe voluntarily accepted the reinstatement of Spanish sovereignty. On October 16, 1692, Diego de Vargas left Santa Fe to subdue the Western provinces of Acoma and Zuni as part of the Spanish reconquest of New Mexico. De Vargas had been forewarned by two Indians who had returned from Zuni that a great council had been held near Acoma to plan for the ambush of the expedition. Apparently the Zuni, Hopi, Jemez, and other Indians had been involved in the council. However, after traveling through Acoma, de Vargas met Zunis at El Morro on November 8, 1692. Ten or twelve Zunis had come from the Pueblo on horseback to welcome Governor de Vargas and his group to the Province of Zuni. When de Vargas arrived at Zuni he found that the inhabitants were located on top of Com Mountain in anticipation of his arrival, although the Zunis were also using the other pueblos and their surrounding territory. Vargas’ approach to the Zunis was friendly, and, therefore, he was received on top of Corn Mountain in a friendly manner.¹⁷ De Vargas proclaimed that the Zun-is were once again vassals to the King of Spain. Then he traveled to Hopi and returned to Zuni. He was led by Zuni guides back to the Rio Grande above Socorro, taking a short-cut known to the Zunis.

FINDING NO. 43. Apaches Located Outside of Claim Area During the 17th Century:

Apache Indian bands traded and may have raided at the Pueblo of Zuni, but they did not live in, or otherwise claim Zuni lands as their own, as discussed further below. One of the earliest documented records of Apaches in the Zuni claim area concerns events of 1672 when the Apaches were ostensibly blamed for the killing of a priest at Hawikuh. There is speculation that the Zunis were in league with the Apaches to rid themselves of Spanish influence. There is no evidence of any injury to Zunis during the “Apache” raid on Hawi-kuh in 1672. On November 14,1692, Diego de Vargas was at Zuni when he was approached on his camp’s parade grounds by a chieftain of the Salinero Apaches and eight or ten braves who assured the Spaniards, “they had always entered this land and the province of the Zuni on terms of peace, that they were friends of the natives, and that it was their earnest desire that the Spaniards be their friends.” The Salinero Apaches followed de Vargas and his men at a distance on their trip to Hopi and the return to Zuni. De Vargas then traveled to the Rio Grande area above Socorro. De Vargas made note of the Apache surveillance as they traveled from Zuni remarking that the Apaches had been inspecting his camp sites and following his trail.

De Vargas was led by a Zuni guide, Agustín de Cabezón, who had agreed to show him a shortcut. From El Morro the guide led de Vargas on a road which led southward. After traveling a league, the company stopped at a hill from which the Zuni pointed out a mountain he called Sierra Prieta. He also informed de Vargas that at a great distance beyond it was another mountain called Pena Larga, near which he said the Apaches Colorados had a ranchería. Pena Larga has been identified as being outside the Zuni claim area near the headwaters of the Gila River. The Zuni guides delivered de Vargas to the Rio Grande, above Socorro, and returned by way of Acoma to avoid confrontation with the Apaches trailing de Vargas.

No evidence is found of any Apache habitation, farming sites, or hunting activities within the Zuni claim area during the 17th Century. The only recorded evidence at the close of the 17th Century demonstrates a friendly relationship between the Apaches and Zunis, most likely founded upon trade. In fact, in 1696 Governor de Vargas was informed by Spanish allies that the Acomas, Zunis, and Hopis had been joined by Apaches in support of rebellious pueblos who had resolved to kill all Spaniards and again drive them from New Mexico. In July of 1696, the Acomas and Zunis lost men in the battle with the Spaniards near the Pueblo of Jemez. The Jemez, Acoma, and Zuni confederation was thus broken up.

FINDING NO. 44. The Fraudulent Crúzate Grant Has No Bearing on Zuni Land Use:

The fraudulent Crúzate Grant, purportedly dated 1689, has no bearing whatsoever in determining Zuni use and occupation of the claim area. Historians generally agree that the “grant” purportedly issued to the Pueblo of Zuni in 1689 was forged by unknown persons, possibly during the late Mexican period. The fraudulent grant recites a spurious story in which the Governor and Captain General Don Domingo Jir-onza y Petros de Crúzate found a Zia Indian who assured the Governor that the Zun-is would accept obedience; whereupon, the Governor granted the Zunis a one league grant, measured from the four corners of the Pueblo.

When the “grant” was finally measured in 1880 it excluded the Pueblo of Zuni itself. There is no evidence of any bona fide or non-spurious grants having been made to pueblos in New Mexico, except for Sandia in 1748. Instead, Spanish and later Mexican authorities applied Spanish decrees and ordinances which provided for protection of Pueblo Indian rights to the lands they used and occupied.

E. ZUNI IN THE EIGHTEENTH CENTURY TO THE MEXICAN PERIOD

(1700-1821)

FINDING NO. 45. Zunis Kept Integrity of Culture:

The Zunis maintained the integrity of their cultural values by killing Spanish soldiers who lived openly with Zuni women contrary to Zuni custom and tradition. During the first decade of the 17th Century, there were new reports of a Zuni-Apache alliance against the Spanish. Around 1700, Joseph Naranho began serving as Alcalde Mayor at Halona with a detachment of twelve soldiers. He doubtless notified Santa Fe of the troubles threatening to erupt there in 1702 involving a threatened uprising of Acomas, Lagunas, Zunis, and Apaches. A small force of soldiers came to Zuni to protect the mission priest Fray Garaicochea, and three of the group were left after the Spaniards determined that there was no immediate danger. The three soldiers behaved scandalously, living in public with Zuni women, and, in 1703, they were killed by the Zunis. Following the incident another force of soldiers was sent to Zuni. Some of the Zunis once again moved to maintain the mesa stronghold on Corn Mountain. In 1705, however, the Zuni-Spanish relations were normalized and the defensive position of Corn Mountain was deemphasized as in the past times of peace.

FINDING NO. 46. Apache Raids Directed at Spanish Interests:

During the 17th Century Apache raids were directed at Spanish towns and ranches in Northern Mexico and the Rio Grande Valley rather than the Pueblo of Zuni where many Apache bands had friendly trade relations. Apaches began raiding Spanish Colonies on the Rio Grande and further south into Mexico. The Spaniards often suspected the Zunis and other Pueblos of being in alliance with the Apaches against the Spaniards. Spanish campaigns against Apaches brought them through Zuni on their way to the Gila River where Apache rancherías were located outside of the claim area. There does not appear to be any firsthand account of Apache conflict with the Zunis during the first half of the 18th Century.¹⁸ While Apaches traditionally had friendly relations with the Zuni people, they were considered hostile by the Spaniards. Many of the reported hostilities at Zuni were aimed at the Spaniards residing there rather than the Zunis themselves. Fray Manual de San Juan Nepomuceno y Trigo visited Zuni in 1754 and reported that the Zunis were neighbors of the numerous Moqui (Hopi) apostates and were certainly very independent, for they never sow any crops for their minister. Instead they had their own flocks of sheep and went about their own farming, and, from the produce, shared with the mission. They also furnished wood for the mission. In 1760 Bishop Pedro Tamaron y Romeral, Bishop of Durango, Mexico did not visit Zuni while he was making a visit to Acoma.¹⁹ “One of the difficulties alleged against my going there was that I should not find even half of the inhabitants because they are so dispersed in their ranchos. They breed livestock, and large flocks of sheep come from there.”²⁰ Since the Zunis did not share with the Spaniards the same fear of the Apaches, they traveled freely and dispersed to their ranchos.

FINDING NO. 47. Dominguez, Esca-lante, and Don Miera y Pancheco Visits Confirm Zuni Exclusivity:

The visits of Fray Dominguez and Fray Escalante and Don Miera Pacheco confirmed extensive Zuni use of the claim area and located Apache farmsites near the Gila River outside of the claim area.

A. In 1776, Fray Francisco Atanasio Dominguez passed through the Pueblo of Halona or Zuni, on his inspection of the New Mexico missions, and gave a thoughtful and detailed report on the mission at Zuni. He reported that the Zunis provided the fathers there one sheep per week, eggs, lard, salt, milk, and tallow candles, in addition to many other agricultural products.²¹ He noted that timbers used in the building of the church and convent were collected from a far distance. He also described some Zuni farming. He made no mention of any settlements or farms in the claim area belonging to Navajos or Apaches.²² The closest Apaches reported by Dominguez’ companion Fray Francisco Velez de Escalante were said to be cultivating a valley about 18 miles north of the Gila River, thus outside the Zuni claim area. Those particular Apaches evidently had been subject to attack by Zuni (accompanied by a few Spanish).

B. In 1779, Don Miera y Pacheco, who had accompanied the Dominguez-Escalante Expedition of 1776, prepared a map of New Mexico showing its various political subdivisions. It is clearly a map of areas governed by the Acalde Mayors and not the areas controlled by various Indian groups. The area controlled by the Zunis is not indicated, particularly the extensive area needed to graze the over 15,000 sheep counted as Zuni-owned. The so-called “Mi-era map” is in reality a Plano and is not a topographical map. Mier’a Plano was not detailed enough to render it susceptible to precise locations and cannot now be used to identify the specific locations of Navajo and Apaches in the area. The Plano indicates the eastern boundary of the Alcaldía of Zuni to be the lava flow between Acoma and Zuni. The other two lines indicate northern and southern borders of the Alcal-día, the distance between them about thirty miles. The western boundary is completely open as far as the coast of California.

FINDING NO. 48. Zunis Join Spaniards to Fight Apaches:

Zuni Indians served as auxiliaries with Spanish troops to fight hostile Apaches bands when needed, however; Apache hos-tilties were infrequent and did not affect the traditional Zuni use of land within the claim area.²³

Conditions in the Pueblo of Zuni by the middle of the 18th Century were not bad by standards of the times. The Zunis had domesticated a number of horses. In fact, they had more horses than any Spanish settlement. Increased mobility enabled Zunis to travel distances with greater ease and strengthen protection of their territory. Greater protection was needed as various Indian groups were dislocated and disrupted by Spanish intrusion. Comanche raids against the Spanish Pueblo settlements along the Rio Grande stimulated counter offenses by the Spaniards against the Comanches; in the period from 1767 to 1788, Governor Mindinueta launched an all out war against the Comanches, which in turn stimulated raids against the Spaniards by Utes, Navajos, and Apaches.²⁴

An “open door” between Socorro and the Pueblos of Acoma and Laguna existed wherein Navajos and Apaches passed freely to make raids on the Rio Grande. In 1772, Apaches raided at Zuni and the skirmish resulted in the death of six Indians. In 1788, Zunis serving as auxiliaries to Governor Concha fought against the Apaches between the Pueblo of Laguna and the Rio Grande.

In 1795, Captain Zuniga traveled from Tucson through the Gila area to the Zuni Pueblo and back, searching for a trade route between Sonora and Santa Fe. Zuni-ga was also ordered to punish the Apaches along the way. Apaches were encountered only in the Gila River Valley well outside the Zuni claim area. In 1797, the Spaniards launched another offensive against the Apaches going as far as the Sierra de las Mimbres.

In 1807, Apaches robbed and killed a Spaniard near San Rafael. Spanish troops chased the Apaches into The Malpais or lava flow, but were unable to drive them out. Thereafter, three hundred Apaches attacked the Zunis, fighting from seven in the morning until three in the afternoon, killing one Zuni and wounding twelve others, then taking 600 sheep with them.

On October 25, 1809, twenty Gila Apaches attacked Zuni horse herds and killed five men and two women. Both the Zunis and the Spaniards retaliated after these attacks, but the records are incomplete as to the details.

The Apaches did not seize any Zuni territory by conquest or any other means during the entire Spanish period. It appears that while the Apache attacks on the Rio Grande were serious during the early part of the 19th Century, Apache attacks were generally focused to the south on towns in Mexico rather than to the north on Zuni. Despite isolated raids against Zuni by some hostile Apache bands, relations with other Apache bands were good, as evidenced by trade between them and Zunis.

FINDING NO. 49. Apache Farms and Homesite Located Outside of the Claim Area:

Apache farms and homesites were located outside of the Zuni claim area during the entire Spanish Period. In 1747, Don Bernardo de Miera y Pacheco traveled as engineer and captain of the militia on a general campaign initiated by Spanish authorities to establish a road from Zuni, through the Gila country, to the presidios in Sonora. He later used the information gained on this trip to draw his 1779 Plano. Don Bernardo explored the area from Zuni towards the Gila and found no Apaches, but he did discover some Apache farms located in the valley north of the Gila River, located well to the south and outside of the claim area. He traveled the entire area from Los Mimbres, Rio de San Francisco, and to the area south of Acoma and noted no other Apache settlements.

FINDING NO. 50. Zuni Homesites Away From Pueblo:

The Zuni people traditionally lived in farming villages or livestock camps away from the central Pueblos of Zuni during much of the year. The 1790 Census of Zuni, compiled by the Alcalde Mayor Juan Pedro Sisneros, showed that the Zunis not only lived at the Pueblo of Zuni, but also at Rancho Colorado, Rancho de Piedras Neg-ras, Rancho de Galisteo, Rancho del Ca-noon and Rancho de Señora Santa Ana.

These outlying ranches were undoubtedly some of those noted in 1779 by de Anza as places where Zunis, who had not gone to stay at other pueblos during the drought, lived and from where they pastured large flocks of sheep.

These ranches were not described by Dominguez in 1776; however, his purpose was a visit to the mission to assess its condition, not to survey Zuni land. Don Bernardo Mieera y Pacheco did not note these ranches on his 1779 Plano; his purpose was to indicate Acaldia administrative boundaries, not Zuni occupation.

FINDING NO. 51. Absence of Navajos Within Claim Area:

Throughout the Spanish period, Navajo bands lived and used lands outside of and not within the claim area. Zunis were harassed by occasional. Navajo thefts during the end of the Spanish period. In 1804-05 Zunis were recruited to join Spanish campaigns against the Navajos. In 1818-1821 reports were sent by Spanish officials at Zuni warning of Navajos preparing to attack the pueblo. The Navajo had been driven from their homeland in the upper San Juan region by the Utes and the Spaniards into the area north and east of Mt. Taylor. From there they began to raid Spanish settlements and the Pueblos. However, there is no evidence of Navajo settlements or land use in the Zuni claims area throughout the period 1700-1821.

FINDING NO. 52. Exclusive Nature of Zuni Use of Claim Area to 1821:

To the close of the Spanish Period in 1821, there are continuing reports of Zuni uses of their land. Particularly notable are the reports indicating increase in sheep husbandry. There are also reports of the Zunis keeping large herds of horses, of farming at a number of locations, and of gathering timbers from far distances. These historical reports, coupled with archaeological and anthropological information, demonstrate that the Zunis continued use of the claim area was exclusive.

FINDING NO. 53. Zuni Aboriginal Lands Remain Intact Under Spain:

Since Spain had recognized the Zunis’ right to aboriginal territory and had done nothing to disrupt or interfere with Zuni use and occupation, the Zunis became subject to the sovereignty of Mexico with their aboriginal lands intact.

FINDING NO. 54. Zunis Declared Mexican Citizens:

In 1820, the Pueblo Indians of New Mexico became Spanish citizens. With the independence of Mexico and her acceptance of sovereignty over the area in 1821, the citizenship of the Pueblo Indians was affirmed. Citizenship was given to the Zunis under the Plan de Iguala, which declared all of the inhabitants of New Spain, “without distinction, whether Europeans, Africans or Indians,” to be citizens, and that their “person and property would be protected by the government.” These principles were reaffirmed by the Treaty of Cor-dova of August 24,1821, in the Declaration of Independence of October 6,1821, and by Act of the Mexican Congress. The Zuni people remained Mexican citizens during the entire Mexican period up to and including 1846. Relations between the Zunis and Mexico were at all times friendly, if distant. The Mexican government eventually provided a school teacher at Zuni and military support from time to time.

FINDING NO. 55. Navajo Homeland Outside of Claim Area:

The Navajo area of occupancy was to the north and east of the Zuni claim area during the Mexican Period.²⁵ The traditional homeland or Dinetah of the Navajos was in the El Gobmador Canyon area north of Santa Fe; the Navajos having settled there about 1500. Pressures from Utes and other Indians pushed the Navajos to the west, deserting Gobernador and Big Bead Mesa by 1800.

Prior to 1821, some Navajos had settled in the area east of Mt. Taylor near Cebolle-ta. Mt. Taylor was considered to be the Navajos’ sacred mountain of the south. Continuing pressures from the east resulted in the Navajos concentrating, by the close of the Mexican period, in the areas north of the Zuni claim area in Canyon de Chelly and the Chuska Mountains.

The Navajos were generally nomads and raiders and did not establish large, permanent settlements. The Mexican authorities made a number of campaigns against the Navajos. For example, in 1816, some Navajo temporarily gathered at Bear Springs, where a water source was available; in 1821 and 1836 they were attacked by Mexican authorities and removed (either through death or capture). (See also Findings 56 and 57 below.)²⁶

Some Navajos were friendly and entered into peace treaties, which frustrated the Mexican officials in Santa Fe who learned that friendly Navajo chieftains only spoke for their own band. The first treaty signed by Governor Jose Antonio Vizcarro in February 1823 was unsuccessful, since it was followed by more raids and retaliatory campaigns by Mexican soldiers. The second treaty was signed in 1829. Still the raids and thefts continued. As authorities got better acquainted with Navajos, they learned that their strongholds were the La Plata and Chuska-Tunicha Mountains and the Canyon de Chelly, which are all north of the Zuni claim area.

FINDING NO. 56. Mexican Troops Protect Northern Border of Zuni:

Mexican troops chased fleeing Navajos from the northern border of the claim area. In 1836, Governor Armijo ordered Jose Francisco Vigil to march against the Navajos. En route Vigil received word that the Zunis were possibly in league with the Navajos against the Mexicans. He arrived on Christmas morning at the Pueblo of Zuni in hopes of surprising the Zunis, but he found that the Zunis were not united with the Navajos. In fact, the Zunis turned over two Navajo captives to the Mexican soldiers. Vigil then sent a detachment of soldiers to Ojo del Gallo and thence to the Chuska Mountains and Ojo del Oso to battle any Navajos which might be found there. The Mexicans destroyed the ranch-eries, killed 20 Navajo men and took Indian women and 14 children captive along with 5,300 sheep. Vigil declared the Sierra de Tunicha to be the center of Navajo country, but noted that the Navajo had dispersed in many directions. Mexican forces traveled all the way to Canyon de Chelly (outside the claim area) and fought numerous skirmishes with the Navajos. Navajo raiding appeared to increase in 1837 in retaliation for Zuni assistance to Mexican troops; however, rumors of Zuni-Navajo collusion continued.

FINDING NO. 57. Exclusive Nature of Zuni Use of Claim Area During Mexican Period:

The Zunis continued to have exclusive use and occupation of the claim area during the Mexican Period. While there is some evidence that some Navajo families or bands made temporary use of Ojo del Oso, they were driven from the area by Mexican soldiers because Navajo Indians were at war with Mexico and their presence at Ojo del Oso was opposed by the Zunis and Mexican officials. During the period 1843 to 1844, although there were increased Navajo attacks throughout the rest of the province of New Mexico, none were reported at Zuni. Most of the Mexican military campaigns were directed at Navajos living north and west of Jemez, well outside of the Zuni claim area.

FINDING NO. 58. Mexico Recognized Zuni Ownership of Claim Area:

During the brief period of Mexican sovereignty over the claim area, the new Mexican government continued to apply existing Spanish law respecting Indian tribes. Ordinances governing land and water were taken from the Laws of the Indies and adopted by the new regime. Thus from a legal standpoint, the period of Mexican rule was characterized by a continuity of Zuni property rights. The Mexican government recognized the Zuni right to permanently use and occupy the lands the Zuni had traditionally used and occupied, just as the Spanish before it had done.

FINDING NO. 59. Zuni Aboriginal Lands Remain Intact Under Mexico:

Since Mexico had recognized the Zunis’ right to aboriginal territory and had done nothing to disrupt or interfere with Zuni use and occupation, the Zuni became subject to the sovereignty of the United States with their aboriginal lands intact.

F. NATURE AND EXTENT OF ZUNI LAND USE AND OCCUPANCY AS OF 1846

FINDING NO. 60. Reference Points Defining Zuni Boundaries:²⁷

On Plaintiff’s Exhibit 240, the numbered locations 1-20 described hereafter indicate the reference points of the boundary of Zuni territory as of 1846. A short description of each reference point together with a brief discussion of its significance follows:

1. San Francisco Peaks: These high peaks, which can be seen from the Zuni River Valley, are the Zuni sacred mountains to the west. In Zuni tradition, this area was one of the first stopping places on the migration of the Zunis from “The Place of Beginning” in the Grand Canyon to their present location at the Pueblo of Zuni. The peaks were used for hunting, gathering, and as shrines. These mountains marked the western edge of exclusive Zuni use and occupation as of 1846 and the common boundary point between Zuni and Hopi and Havasupi lands.

2. Mormon Mountain: While Zunis claimed to use the area immediately south of the San Francisco Peaks as of 1846, the claim line was drawn in a southeasterly direction to Mormon Mountain so as to avoid possible overlap with the northern Tonto Apaches, who were also known to have used the area due south of the San Francisco Peaks prior to 1846. The Zuni claim area thus does not include any lands utilized by the Tonto Apaches in 1846.

3. Baker Butte: This butte is a large prominent landmark on the Mogollon Rim which separates the Strawberry and Verde Valleys to the west of the claim area from the Little Colorado River Valley to the east and within the claim area. The Strawberry River Valley was used for Apache farm sites and is thus not included within the Zuni claim area. There were no Apache farm sites within the Zuni claim area in 1846.

4. The Mogollon Rim: The Mogollon Rim is a prominent escarpment or cliff which forms a natural division between the Little Colorado River drainage area to the north, within the claim area to the north, and the Gila River Valley outside the claim area to the south. The rim separates two ecological communities. The various lookout points along the precipitous edge of the rim are used for Zuni ceremonial purposes, and Zuni war god shrines were placed along the rim as of 1846 to protect the Zuni area. Much Zuni hunting and gathering was carried on north of the rim itself. The Apaches lived to the south of the Mogollon Rim in small bands using semi-permanent homes which can be identified by Mescal roasting pits. A Zuni watchtower on the rim was located in the late 1800’s near the town of Springerville.

5. Mt. Baldy: Mt. Baldy is a high mountain of religious significance to the Zunis. In addition, the area was used extensively for hunting and gathering by the Zunis to 1846. This mountain marks the boundary between the Zunis and the Apaches to the southwest.

6. Willow Mountain, Arizona: This prominent mountain is the extreme southern boundary of the Zuni claim area in the State of Arizona as of 1846, serving as a religious area, and for the gathering and hunting of turkeys, and other birds and small game.

7. Willow Mountain, New Mexico: This prominent mountain is the extreme southern boundary of the Zuni claim area in the State of New Mexico as of 1846, serving as a traditional hunting and gathering area, as well as serving as a religious shrine.

8. Granite Peak: This peak is located near the present town of Magdalena and is clearly visible from Willow Peak and Ce-bolleta Peak. A line drawn from Point 7 to Point 8 on Map 240, includes the Plains of San Augustin and the Dátil Mountains used extensively for hunting purposes by the Zunis in 1846.

9. Cebbolleta Peak: This prominent land mark stands by itself at the foot of the lava flow originating at Mt. Taylor. Its predominant place and landscape marked the division between Acoma and Zuni in 1846.

10. The Ice Caves: This geologic phenomenon is located near the western fringe of the Malpais and was and is a focal point of the activities of many Zuni religious societies. It is also located near “The Place of the Deer,” where Zunis believe that deer are created to replenish those hunted and used throughout Zuni country. The Malpais itself is uninhabited and its barren nature served as a natural boundary between Zuni and Acoma.

11. Ojo del Gallo: This sacred spring was used by the Zuni people extensively in 1846 and times previous thereto. It is the last watering place upon leaving Zuni country for the Rio Grande Pueblos.

12. Mt. Taylor: This prominent landmark serves as the common boundary point between Acoma, Laguna, Navajo, and Zuni. As of 1846, the Zunis controlled their approach to the mountain from the west. Mt. Taylor was used by the Zunis in 1846 for hunting and gathering purposes and as a sacred religious shrine.

13. Hosta Butte: At the summit are separated drainage systems. Waters north flow to the San Juan River. Waters south in the Zuni claim area flow into the Rio Puerco. Ruins in the Upper Puerco River Valley just to the south of this butte were inhabited by ancestors of clans now domiciled in Zuni. The summit of Hosta Butte was the natural dividing point between the Zunis and the Navajo after the Navajos moved into the San Juan River basin area in the 1800’s.

14. Mexican Springs: These springs are located at a place where the San Juan River drainage flows to the north and the Little Colorado River drainage and the Rio Puerco flow to the South. In 1846 this was the “Zuni side” of the southern tip of the Chuska Mountains which divided them from the Navajos.

15. Ganado: Ganado is located near the traditional Zuni site of Kintiel. This was a place where water could be found on the Zuni/Hopi trail and was often used by Zuni traders. In 1851, the United States constructed Ft. Defiance on the edge of the Zuni territory as a defense against raiding Navajos. Ft. Defiance is located on a line drawn between Points 14 and 15 on Map 240.

16. Steamboat Canyon: This canyon was, in 1846, and is the traditional and agreed upon boundary between Hopi and Zuni. Steamboat Canyon contains a Zuni shrine and a Hopi shrine indicating that the site served as their common boundary. Steamboat Canyon is located on the Zuni/Hopi trail.

17. Twin Buttes: Twin Buttes is located at the confluence of Steamboat Wash and the Pueblo Colorado Wash and was an ancestral site of Zuni habitation. The Pueblo Colorado Wash was an identifiable boundary between Hopi and Zuni in 1846.

18. The Confluence of the Pueblo Colorado Wash and the Cottonwood Wash: This area marks another place on the traditional boundary between Hopi and Zuni.

19. Confluence of the Little Colorado River and the Cottonwood Wash: In prehistoric times, the common ancestors of the Hopis and Zunis lived here, but later separated themselves during the migration period, some going to Hopi and some going to Zuni. The Little Colorado River from Win-slow to Leupp completes the traditional and easily identified boundary between Hopi and Zuni, as recognized in 1846.

20. Leupp, Arizona: Based upon the archeological discovery of numerous pottery shards of ancestral Zunis, this area is traditionally Zuni. It was used by the Zunis in 1846 for hunting, gathering, and for religious pilgrimages both to the San Francisco Peaks and to the Grand Canyon.

The foregoing points of reference were connected by a single line to form a boundary or perimeter of Zuni exclusive use and occupancy as of 1846. Since it is clear that actual Zuni use and occupancy for the purposes of farming, hunting, gathering, trade and shrine visitation exceeded this line, the boundary, as drawn accurately, reflects the area of exclusive Zuni use and does not include those lands which may have been used infrequently or jointly with surrounding tribes.

FINDING NO. 61. Physical Environment Determined Zuni Boundaries:

Geography was an important factor in determining land use boundaries in the pueblo region. Such boundaries included mountain areas, lava flows, river basins and drainage systems, and biotic communities. The mountains on the margins of the Zuni aboriginal territory played an important role by serving as boundary markers. The mountains used by the Zunis as their boundary markers are easily discernible as one views the horizon from the Zuni River Valley, and anyone who stands on the summit of any of the peaks named in Finding 57 can see the length and breadth of the Zuni claim area. Mountain areas also provided the Zunis with wild foodstuffs, and were sites for gathering medicinal plants, for hunting various animals, and for making prayer offerings to their dieties and other perceived supernatural beings. The mountains are so sacred to the Zunis that they locate various shrines on the summit of each peak, which, by religious tradition and custom, must be visited periodically. The Mogollon Rim and the mountain ranges in that area were an important boundary marker between Zuni and Indians to the south, such as Apaches.

The great lava flows south of Mt. Taylor and the modem city of Grants on the eastern edge of the Zuni region were a forbidding boundary between Zuni and Acoma. This Zuni-Acoma boundary is still relevant since the Acoma farming villages stop at the eastern edges of the lava fields, and the areas of Zuni utilization, including ancient shrines and familiar places, begin on the western edge, in the vicinity of San Rafael and the Blue Lake Region.

Springs used for watering livestock, and by people, marked trails into Zuni. Sacred springs fed by mountain snows were visited periodically and offerings were made by Zuni priests. Available water determined agricultural boundaries, and grazing boundaries. Drainage systems served as boundaries. An example is the area of Hosta Butte and the crest of mountains of which it is a part which form a portion of the northern boundary of the claim area. Water flows from this area south into the Rio Puerco of the claim area. North from Hosta Butte waters flow into the San Juan River Basin of the Navajo Area of occupancy-

Biotic communities served as boundaries, since materials used by the Zunis were found in certain of those communities. For instance, the area between the Little Colorado River and the Mogollon Rim as far west as the San Francisco Peaks was a large Zuni hunting and gathering area. The Mogollon Rim marked separate biotic communities; the one to the north used by Zunis, the one to the south used by Apaches.

FINDING NO. 62. Zuni Use of Boundary Markers:

The Zunis used their own unique “flags” or boundary markers to designate their territorial limits. Practical restraints imposed by natural barriers determined to a great extent the area of exclusive use and occupancy of the Zuni people. Prominent landmarks, such as mountain peaks, mesa tops, cliff escarpments, lava flows, and rivers were easily recognized by any traveler in the claim area. A preliterate society, such as the Zuni Tribe, having no aid of maps or surveying equipment, relied on these landmarks to define their boundaries. These natural landmarks in turn were set apart or prominently marked by the Zunis placing clearly visible War God Shrines, masks, Zuni fetishes, prayer sticks, turquoise, shells, pottery or other materials readily identified as being Zuni. The Zunis were careful to mark many other places of significance within the claim area itself, giving rise to a large number of Zuni place names, which serve as very sacred symbols of identity or boundary markers.

Zuni tradition and religion preserved the knowledge of these exact locations by the use of oral tradition memorized by rote or in song and prayer, and passed from one generation to another without deviation. The retention of memory of these places is one way Zunis maintain their identity as a people.

In addition, Zuni people preserved and maintained these “markers” or locations by making regular visits or pilgrimages to deposit offerings and ask blessings upon the land. In depositions, priests and leaders of secret Zuni societies documented for the first time the general location of these “marked” or sacred places. In recent times, many of the Zuni markers or shrines have been lost, stolen, or destroyed.

FINDING NO. 63. Zuni Bow Priests Patrolled Zuni Borders:

Invoking what were believed to be supernatural powers of the War Gods by the placement of War God masks on the Zuni borders, Zuni Bow Priests or warriors patrolled Zuni lands for the purpose' of removing unwanted intruders. Zuni war gods, or Ahayuda, are believed to protect the Zuni people and their lands. Bow Priests from the village of Zuni placed imposing War God masks or figures representing the Ahayuda at various points on the periphery of the Zuni area as boundary markers. These War God shrines were visited regularly and maintained by the Zuni people with the intention of protecting their boundaries from intruders. Zuni warriors or Bow Priests had the authority to patrol the boundaries and to escort visitors from the Zuni territory. Zuni Bow Priests placed their unique signs or symbols of the War Gods on every trail crossing the Zuni boundaries to warn or give notice to travelers that they were entering Zuni territory. Since the Bow Priests were empowered to protect against alien invasion of their sacred lands, intruders who came into the Zuni area without permission were hunted down and scalped.

FINDING NO. 64. Zunis Continued Traditional Land Use as of 1846:

The traditional Zuni area of land use as of 1846, for all purposes including farming, grazing, hunting, gathering and worship (i.e., shrines) is depicted in Plaintiff’s Exhibit 241.²⁸

Traditional Zuni land use involved a core area of permanent settlements where agriculture was intensively practiced, a larger surrounding area containing seasonal settlements where dry farming and flood water farming were practiced and livestock was grazed, and a more expansive surrounding area where animals were hunted, and plants, minerals, and other items were gathered. All of these activities were conducted upon “chosen” lands to which the Zunis believed they were guided by the gods. The introduction of new agricultural crops and domesticated animals from both the Spaniards and the Mexicans supplemented the aboriginal economy, but Zuni land use as of 1846 was not significantly affected by Europeans; thus the traditional Zuni land use system continued unabated. It is this traditional Zuni land use system that enabled the Zuni people to be self-sufficient and to produce surplus agricultural goods and other commodities obtained by hunting and gathering for trade with other Indians and with the governments of Spain, Mexico, and the United States.

FINDING NO. 65. Zuni Religious Use as of 1846:

Zuni maintenance of the land under aboriginal land tenure practices as of 1846 required that specific offerings, prayers, and rituals be prepared throughout the calendar year. In addition, they felt intense religious devotion to the land and consequent responsibility for its maintenance and its protection. The Zuni calendar, determined and maintained by the Sun Priest and his associates, determined when agricultural and ceremonial activities were performed, year after year, in unchanging sequence. Zuni loyalty to and responsibility for the Zuni claim area is, and traditionally was, so great that they believe the rain will not fall if their prayers are not made, and the land will be ruined without their religious activities. As of 1846, the Zunis protected their borders, including all of the lands in the Zuni claim area, with religious zeal described by Cushing as “fanatical”. The Zunis practiced intense conservation and revered the entire Zuni claim area as though it were a single living organism. Religious use of the land naturally coupled with other types of usage.

FINDING NO. 66. Religious Boundaries of Zuni Land as of 1846:

The Zuni sacred lands of 1846 are depicted in Plaintiff’s Exhibit 242. The religious boundaries of Zuni land extended well beyond the Zuni claim area as of 1846: to the east the Sandia Mountains east of Albuquerque; to the north the Blue Mountains in Utah and Colorado; to the west the Grand Canyon and Mohave Desert; to the south the San Francisco River drainage south of the Willow Peaks. Notwithstanding the many visits and religious pilgrimages made to specific shrines or areas outside of the claim area, the Zunis respected the rights of other Indians to those areas as well. The frontier of Zuni exclusive use to the east is Mt. Taylor, and to the west, the San Francisco Peaks. Within the boundaries of the claim area itself are innumerable springs, ruins, cliffs, waterways, pilgrimage routes, mesas, buttes, mountains, and other places of special religious significance. Zuni religious leaders are obligated to visit these sacred places for a variety of purposes, including making prayer offerings, gathering medicinal herbs, collecting materials for prayer sticks, and capturing birds for feathers. The Zunis have a reciprocal relationship with nature and believe that payment should be made when water, plants, or animals are used to maintain human life. Therefore, the deities must be “paid” with prayer offerings taken to shrines and sacred places.

All water is sacred in the semi-arid climate. All streams and springs within the claim area are, therefore, sacred, and the entire length of the Zuni River has religious significance. Mountain tops are sacred because they attract necessary water and are the source of springs. They are the homes of kachinas and other deities and serve as special markers of territorial claim. Thus, mountains along the Mogol-lón Rim and in the Reserve area, the San Francisco Peaks, and Mt. Taylor are primary religious shrines of the Zunis which the latter considered to guard their area of exclusive use and dominion. Although shrines are sometimes located on mountain peaks, the entire mountain will have religious significance as a site for gathering medicinal herbs and other ceremonial materials. Entire regions, as well, may take on important and unique religious values. Thus, each stopping place in the origin and migration narrative of the Zunis is a shrine area held in special esteem. Important shrines also exist at all ancestral villages of the Zuni, where offerings are made to the Zunis’ ancestors.

FINDING NO. 67. Zuni Plant Gathering Area as of 1846:

The traditional Zuni plant gathering area as of 1846 is depicted in Plaintiff’s Exhibit 243. The Zuni people collected various plants from every biotic community in the Zuni area, from the Alpine tundra at the top of the San Francisco Peaks, to the Mohave Desert scrub in the bottom of the Grand Canyon. In the same way that the Zunis had reverence for the landscape, they revered the plants of the Zuni claim area. Zunis were therefore highly protective of that resource. By gathering plants from every corner of the region they occupied, the Zuni people were able to fill their larders and storage bins with an abundant array of foods, medicines, ceremonial materials, basketry materials, and toiletries. The Zuni also collected wood for building purposes, utensils, and fuel.

In the hundreds of years during which the Zunis occupied their traditional territory prior to 1846, there is no evidence that their gathering practices in any way depleted any of the plant resources about them. The Zunis had arrived at a way of life, and had developed land use systems, which would sustain them indefinitely in their territory using the resources therein in a way that promoted conservation and sustained yield.²⁹ Much of the traditional knowledge which made possible this great Zuni achievement, the harmonious interaction with the land and environment, has continued to be passed down at Zuni to the present day.

FINDING NO. 68. Traditional Zuni Mineral Gathering Area as of 1846:

The traditional Zuni mineral gathering area as of 1846 is depicted in Plaintiff’s Exhibit 243. As of 1846, the Zuni people did not differentiate between organic and inorganic materials, but considered all things to be living: the earth, the stones, and minerals, as well as plants and animals. All types of inorganic materials were gathered within the Zuni area: minerals for pigments, clays for pottery, soils and water for religious and other use, and particular types of rocks for tools, jewelry, and fetish making. Zunis gathered minerals from the petrified forest, The Malpais, the Grand Canyon, the Gallo and Mogollon Mountains, and every other corner of their country. Turquoise was obtained from copper mines in the Zuni Mountains, and the Cerrillos. Peridot was gathered in the White Mountains of Arizona. Salt from Zuni Salt Lake provided an essential nutrient as well as an important trade item. The Zunis made systematic use of minerals occurring over a wide territory.

FINDING NO. 69. Traditional Zuni Hunting Area as of 1846:

The traditional Zuni hunting area as of 1846 is depicted in Plaintiff’s Exhibit 246. From the highest mountains to the driest deserts within the claim area, the Zunis hunted, trapped, and snared many different species of animals and birds. Zuni hunting parties ranged for hundreds of miles in both the mountains and plains. Some of the most important hunting was carried out communally, such as ritual rabbit drives near the Pueblo of Zuni. In outer areas of their territory, the Zunis constructed and used long brush fences or “drive lanes” in communal hunts for deer and antelope. Hunting was also done individually for family or clan use, and as initiation into adulthood. Hunting activities had associated religious practices, with ceremonial rites and prayers for slain animals. Prayers and offerings were made at hunting shrines along the trails that led to hunting grounds. Hunting provided the Zunis with a crucial supply of meat, with hides for clothing, and with bone and sinew for tools and other manufactured articles. A great number of birds were snared to obtain feathers for religious use.

FINDING NO. 70. Zuni Grazing Area as of 1846:

The traditional Zuni grazing area as of 1846 is depicted in Plaintiff’s Exhibit 244. As of 1846, Zunis tended extensive flocks of domestic animals which were herded over a large portion of the claim area. Before contact with Europeans, the Zunis tended extensive flocks of turkeys which were herded over a large area. Turkey feathers were used for clothes, and the birds themselves were used for food during times of need. The Zunis later obtained livestock from the Spaniards including sheep, cattle, horses, burros, and other domestic animals. With the incorporation of livestock into their economic system, the Zunis began using extensive lands within their territory for grazing. The sheep industry was particularly well established by 1846, providing wool for weaving, as well as meat for food. During the summer the Zunis grazed their sheep in the grasslands as far as 70 miles from Zuni Pueblo. In the winter and during the spring lambing, the Zunis herded their sheep closer to Zuni Pueblo and the farming villages. Traditionally, flocks were rotated from one grassland to another to conserve range land and were often allowed to graze in agricultural fields after the harvest.

FINDING NO. 71. Zuni Farming Area as of 1846:

The traditional Zuni farming area as of 1846 is depicted in Plaintiff's Exhibit 245. The economic base of traditional Zuni society was agriculture, stabilized by gathering and hunting. Since prehistoric times, through and including 1846, the Zuni people farmed in all of the well-watered drain-ages throughout the Zuni area. Crops included a variety of plants developed in the southwest before European contact as well as a variety of plants acquired from the Europeans. While much of the farming was concentrated in the valley of the Zuni River, many small farms as far away as St. Johns, Arizona, were still being planted as of 1846. In addition, many sheepherders planted small plots of corn and squash in the outlying areas used for grazing. These small plots were tended by the sheepherders during the summer months while they were watching their flock. In the Zuni River Valley, corn was planted wherever there was sufficient runoff to provide growth. Wheat and other irrigated crops were grown in large farms nearer to the villages. Small, hand-watered waffle gardens for chili, coriander, and onions were planted on the banks of the Zuni River at the Zuni Pueblo, and tended by women. The traditional agriculture of the Zunis employed dry farming and flood water farming methods, conserving the soil and making maximum use of available water. Irrigated agriculture was an indigenous technique at Zuni which included the use of viaducts made from large hollow logs.

FINDING NO. 72. Zuni Trade Relations as of 1846:

Trade has been an important part of the Zuni economy for about a thousand years allowing the Zunis to exchange resources from their area for the products of other areas. (See also Finding 12.) As of 1846, the Zuni Pueblo was a hub in a large regional trade system connecting the southwest with Meso-America, the west coast, the northern mountains, and the Great Plains. Active trade regularly took place along the north/south and the east/west trade routes. Zunis traveled far distances to trade, and other Indian people traveled far distances to Zuni. The Zunis also allowed, under certain conditions, other Indian people to collect salt within Zuni territory. Macaw feathers were traded for turquoise and blue paint; shells for corn; coral for pigment; and cotton thread and cloth for buffalo hides. Zunis also traded pinon nuts, wicker baskets, and ceramics. After the arrival of Europeans in the Southwest, trade continued to be conducted within Zuni territory, and beyond, with both Indian peoples and the Europeans. Disruptions in the trade caused by European efforts to regulate it, and by dislocations of Indian tribes, may have restricted some trade. Nonetheless, trade was augmented by new trade goods and new markets. Zuni trade established important social as well as commercial relationships with many different tribes and many Europeans.

FINDING NO. 73. Zuni Trails as of 1846:

As of 1846, there were many trails throughout the Zuni area used for religious pilgrimages, used for hunting and gathering expeditions, and used to facilitate trade. The former uses have been discussed in Findings 65-68. Well-marked and well-worn trading trails went out from the main Zuni Pueblo as if it were the hub of a wheel. Two trails on either end of the Zuni Mountains led to Acoma, from there a trail went east to the Rio Grande Pueblos, with branches to Pecos, and Taos, and beyond to the buffalo plains. Two branching trails went northwest to the San Juan country and to the Hopi villages, and then on to the Grand Canyon. Another trail went to the Grand Canyon from Kothlualawa, following the ancient migration route. From Hopi and from Zuni, trails went west to the Colorado River and the tribes living along it. The Colorado River Trail went south to the Gulf of California. Another southern trail connected Zuni Pueblo with the Gila Country and Sonora, which was used by Coronodo. Several trails also went out from the Zuni Salt Lake.

The Zunis placed high priority on keeping their trails open and safe in order to promote their widespread trade. Zuni war chiefs acted against parties that restricted or endangered Zuni trails, but were willing to provide guides to peaceable strangers. As of 1846, Zuni country was spoken of as a very safe place in which to travel. Spaniards and Americans first entered the Zuni area traveling the Zunis’ well-developed trails. Use of the Zuni trails within the Zuni claim area was by permission of the Zuni Tribe, either expressed or implied.

FINDING NO. 74. Zuni Government Remained Strong as of 1846:

The Zunis used an advanced, civilized, and sophisticated political structure as of 1846. The religious leaders or Council of Priests formed a kind of theocracy which carefully watched over Zuni affairs. The Council tried to remain apart from secular affairs, however, which were left to the Bow Priests. Civic officials appointed by the priestly council were given titles from the Spanish system of government such as the Governor, and Teniente. The governor became the spokesman, selected by the priestly council, to cope with outside matters. Under the legal systems of both Spain and Mexico, the rights of the Zunis to govern themselves, in the lands they occupied, were respected. As outside pressures intensified, so did Zuni concern for maintenance of their territory. The Zunis were aware of their political boundaries and resisted any attempt at unauthorized intrusion within those boundaries. The governors, as the spokesmen most generally knowledgable concerning Zuni boundaries and Zuni obligations, became increasingly involved in diplomacy and negotiation.

FINDING NO. 75. Absence of Apache Occupation Sites Within Claim Area as of 1846:

There is no physical or historical evidence of any Apache settlement within the Zuni claim area as of 1846. The only Apache archaeological sites are found well outside the claim area south of the Mogol-lón Rim. Likewise, Apache farming area are found to the south of the Zuni claim area. As a general rule, the Apaches did not graze livestock; but what little livestock they had, was kept outside of the claim area. The only evidence of Apache presence in the Zuni claim area, as of 1846, indicates it was for raiding or trading purposes. Whatever little unpermitted use was made of the Zuni claim area by Apache Indians prior to 1846 was met with strong Zuni resistance.

FINDING NO. 76. Absence of Navajo Occupation Within Claim Area as of 1846:

There is no archeological evidence of any temporary or permanent homesite of the Navajos which predates 1846 in the Zuni claim area. The temporary ranchería of Navajos located at Ojo del Oso was destroyed in 1836 and the people were either killed or taken captive. The Navajos complained that when Navajo women were attempting to gather pine nuts in the Zuni mountains a few years prior to 1846, the Zunis had killed a number of them. The only evidence of Navajo presence in the Zuni claim area, indicates they were there for raiding or trading purposes. Whatever little unpermitted use was made of the Zuni claim area by Navajo Indians prior to 1846 was met with strong Zuni resistance.

FINDING NO. 77. Apache and Navajos Without Central Government:

Apaches and Navajos were without central government as of 1846. They operated in small, independent bands or as individual families, and as such were no threat to traditional Zuni land use. They did not develop into organized tribes until well into the United States period. The Zunis knew and traded with some Navajos and Apaches and also knew that other Navajos and Apaches were not to be trusted. The representatives of Spain, Mexico, and the United States also learned that making treaties to end raids on Indian pueblos and European settlement with certain representative bands of the Navajos and Apáches would not result in a cessation of hostilities with other bands of Navajos and Apaches. Thus, it was possible that the Zunis might be trading and enjoying good relationships with certain Navajos and Apaches, and shortly thereafter might experience raids from others. There is no evidence that hostilities experienced between Zunis and their Navajo and Apache neighbors kept the Zunis from continuing their farming activities, their grazing activities, their gathering activities, and the uses of customary places connected with their religious life.

FINDING NO. 78. Written Account Concerning Northern Boundary of Zuni Territory as of 1846:

The Robinson diary contains a first-hand written account of the northern boundary of Zuni territory as it touched Navajo lands as of 1846. In the Fall of 1846, military personnel carrying out orders given by General Kearny to Colonel A.W. Doniphan to protect New Mexicans from continuing Navajo attacks on the Rio Grande, found themselves at Cebolleta, northeast of the Zuni claim area in order to guard one of two main “war trails.” A task force was dispatched to go to the Navajos in the Chuska Mountains and secure a peace treaty with them. A Navajo Chieftain Sandoval, whose band lived periodically in the Cebolleta area northeast of the Zuni claim area, volunteered to accompany the peace mission. Sandoval reported that the principal habitation or haunts of the Navajos as of that time were 200 miles west from Cebolleta in the neighborhood of the Tuni-cha Mountains, the dividing range between the Atlantic and Pacific on the borders of Red Lake. Private Jacob Robinson, a member of Captain John W. Reid’s task force, kept a diary of the reconnaissance. Robinson’s diary gives the earliest firsthand description of Navajo country by an Anglo, and gives definite indications concerning the extent of Zunis northern and northeastern boundaries at the time of United States occupation. The task force marched northwest from Cebolleta. In October 1846, while encamped at Red Lake, Private Robinson recorded:

That night a Zuni Chief came to us, and informed us that he was sent by his tribe to invite us to come and to see their women and children; he told us that on his side of the mountain they were very honest; that three of his children have been taken prisoners by the Mexicans and much stock stolen, but if he could obtain his children he would be satisfied; and they never had yet made war against the Mexicans, and never should. Captain Reid advised him to go to Santa Fe and see the governor.

Since the party was still in the Chuskas, the Zuni side of the mountain referred to that range. Captain Reid’s party left Red Lake on October 20, rounding the southern end of the Chuskas to the “Zuni side of the mountain,” near point 14 on Plaintiff’s Exhibit 240. The next several days the party crossed the Continental Divide at Hosta Butte, at point 13 of the Plaintiff’s Exhibit 240, then went on to Mt. Taylor region before finally reaching Cubero.

FINDING NO. 79. Absence of Navajo Hunting, Livestock Grazing, Farming, and Gathering in the Zuni Claim Area os of 1846:

There is no evidence of Navajo hunting within the Zuni claim area for some time after 1846. The Navajos were nomadic and pastoral people, having large flocks of sheep which they grazed in areas north and northeast of Zuni. There are no hogan sites as of 1846 in the Zuni claim area. Navajo hogan sites in the extreme northern part of the Zuni claim area have been archaeologically dated in the post 1868 or Navajo Reservation Period. Navajos occasionally stole Zuni livestock, but they did not graze the livestock in the Zuni area at their leisure after stealing it. Rather, they moved the livestock north as quickly as possible to avoid recapture by the Zunis. While there is some evidence of early Navajo farming outside of the Zuni claim area, there is no evidence of any Navajo farm sites within the Zuni claim area until well after 1846. An attempt by the Navajos to use the Zuni Mountains for gathering purposes was staunchly opposed by the Zunis shortly before United States sovereignty. Many military campaigns of the United States against the Navajos forced individual groups to cross the Zuni territory to avoid capture by United States troops and some may have found refuge with Zun-is. However, Navajo settlement within the Zuni claim area did not occur until after the Navajos had been released from Bosque Redondo (1868).

FINDING NO. 80. Absence of Apache Hunting and Gathering in the Zuni Claim Area as of 1846:

Apaches lived outside of the Zuni claim area. Despite the occasional reports of Apaches in the country between the Zuni Pueblo and the mountains to the south, the homeland of the Apaches was in the mountains, surrounding valleys, and desert country south of the Mogollon Rim. Few Apaches farmed; those who did farmed south of the Mogollon Rim, outside the Zuni claim area. As of 1846, the Apaches subsisted on raiding; they did not have livestock of their own that they grazed. Apache raiding was directed primarily to the south at the Mexican cattle ranches and settlements where Apache plunder trails became well known. The Apaches did gather mescal which they roasted in pits before eating. The mescal plant is located to the south of the Zuni claim area. Gren-ville Goodwin reported from oral interviews taken in the 1930’s that the Apaches hunted and gathered to the north of the Mogol-lon Rim about 1850. However, it appears that the second hand accounts by aged Apaches were of hunting and gathering activities more likely conducted after 1860, when the Apache came into closer contact with the Navajos. There is no historical or archealogical evidence of any Apache settlement in the Zuni claim area prior to 1846.

FINDING NO. 81. Absence of Acoma Hunting, Gathering, Farming, and Grazing in the Zuni Claim Area as of 1846:

The barren Malpais region extending southward from Mt. Taylor and modern Grants forms a natural boundary between the Acoma and Zuni cultures. All of the archaeologists who have recently conducted intensive field investigations in the Zuni Mountains have concluded that the late prehistoric pueblo sites there, including the five villages of El Morro, are all ancestral Zuni sites. The archaeological evidence thus indicates that Zuni settlements were concentrated west of The Malpais and that prehistoric Acoma settlements were located on Cebolleta Mesa east of The Malpais. Earlier archaeological work which assumed Acoma usage in the Zuni claim area during the late prehistoric period had been discredited by more recent and more reliable work. The report of Dr. Robert Rands, involving Acoma use west of The Malpais, is exclusively based upon materials which are outdated and unreliable, or upon oral interviews dealing with a time period subsequent to 1876. During the Spanish and Mexican periods, the various activities of the Acoma had been confined to the east of The Malpais, as observed by both Spaniards and Mexicans. While Acomas carried on friendly and active trade relations with the Zuni, Acoma farming and stock grazing did not extend west of The Malpais until after the coming of the railroad in the 1880’s. The only isolated instance of temporary or permitted Acoma hunting was recorded by Lieutenant A.W. Whipple in late November of 1853 when he met several Acomas near Agua Fria at the eastern edge of the Zuni claim area, who claimed to have been hunting in the nearby Zuni Mountain. As of 1846 the aboriginal lands of the Acoma and Zuni abutted one another commencing at Mt. Taylor in a southerly direction along the lava flow to Cebolleta Peak.

FINDING NO. 82. Absence of All Other Indians from the Claim Area:

As of 1846 other Indians such as the Hualapai, Havasupai, Hopi, Pima and Ya-vapai all used and occupied lands outside of the Zuni claim area. These tribes, however, maintained friendly trade relationships with the Zuni. The Hopis, in particular, had a common agreed boundary with the Zunis as shown by points 16 through 20 on Plaintiffs Exhibit 240.

FINDING NO. 83. Zunis Watch Their Lands Carefully as of 1846:

Zunis made frequent religious pilgrimages to their shrines. Bow Priests frequently reconnoitered the area to check the boundaries. Zunis traveled far distances to trade. In so doing, Zunis reported back to the pueblo on the conditions of the lands, animals, birds, and plants in the area they traversed. The constant criss-crossing of the Zuni claim area by the Zuni people gave Zuni leaders up-to-the-minute information on all changing conditions of their area and most certainly on the intrusion of any unwanted people. As reported by Coronado, after crossing the Despoblado below the Mogollon Rim, he came under the constant surveillance of the Zunis, his progress being carefully relayed back to Zuni by means of smoke signals. Information of importance to other pueblos was relayed by Zuni runners. In turn, any important information from Mexico or the Rio Grande was similarly passed on to the Zunis. The extensive trade carried on at Zuni brought them news from throughout the entire southwest, from the Gulf of California to Mexico, and from the north and the plains.

FINDING NO. 84. Description of Zuni Aboriginal Lands as of 1846:

The Zuni aboriginal tract of land is depicted in Plaintiffs exhibit 240 as circumscribed by the black line connecting points 1 through 20. From 1846 up to and including July 4, 1848, the Zuni Indians held by actual exclusive, and continuous use and occupancy, since time immemorial, a large tract of land described generally as follows, to wit:

Beginning at the point located on the summit of Humphreys Peak in the San Francisco Peaks located in the present State of Arizona; thence south to Mormon Mountain; thence south to Lookout Tower on Baker Butte; thence southeast along the Mogollon Rim to Baldy Peak in the Mt. Baldy wilderness; thence to Willow Mountain, in the State of Arizona; thence east to Willow Mountain in the State of New Mexico; thence northeast to Granite Mountain near the town Magdalena, New Mexico; thence northwest to Cebolleta Peak; thence north around the western fringe of The Malpais (Lava Flow) to Grants, New Mexico; thence northwest to Hosta Butte; thence west to Mexican Springs; thence west to Ga-nado, Arizona; thence west to Steamboat Canyon; thence west to Steamboat Wash; thence south along Steamboat Wash to its junction with the Pueblo Colorado Wash; thence southwest along the Pueblo Colorado Wash to its junction with Cottonwood Wash; thence southwest along Cottonwood Wash to Win-slow, Arizona; thence northwest along the Little Colorado River to Leupp, Arizona; thence west to the place of beginning.

G. INTRODUCING THE UNITED STATES PERIOD³⁰

FINDING NO. 85. Introduction in 1846:

The Zuni in 1846 were living as described in the previous findings.³¹ Also in 1846, a war began between Mexico and the United States. An American General, Stephen Watts Kearny, occupied Santa Fe on August 22, 1846, and issued a formal proclamation of annexation, stating that New Mexico was a territory of the United States.

Thereafter, in mid-1848, a formal treaty, the Treaty of Guadalope Hidalgo, was signed between and United States and Mexico. This formalized American jurisdiction over the Zuni Indians. Under this treaty, former citizens of Mexico now under American jurisdiction (including the Zunis) were permitted to elect either Mexican or American citizenship. The Zuni, like all inhabitants of the area, were guaranteed protection of liberty and property and security in the free exercise of their religion. (The Zuni did not elect Mexican citizenship and thus were considered to have elected American citizenship, to be conferred at the proper time. By the Indian Citizenship Act of 1924, Indians, including the Zuni, who were not yet citizens were given citizenship.)

FINDING NO. 86. Zunis, Navajos, and the United States:

Major Gilpin of the United States Army described Ojo del Oso (Bear Springs) as being within the Territory of the Zuni. Major Gilpin met with American Colonel Doni-phan at Bear Springs, then marched south to the Zuni pueblo, where they were hospitably received (as was Captain Monroe Parsons who arrived in the pueblo after pursuing Navajo raiders).

The Zunis, and other Indians in and around New Mexico, continued to be harassed by raiding or pillaging Navajo bands. On November 26, 1846, the Zunis and Navajos signed a treaty of peace and amity, under the guidance and arbitration of Colonel Doniphan.

Also in November 1846, Colonel Doni-phan (on instructions of General Kearny) signed a treaty of peace with certain Navajo. (Additional disagreements and treaties with the Navajo were to be seen later.)

FINDING NO. 87. Other Indians after 1846:³²

Pursuing Navajos reportedly raiding Zuni territory, American military, in 1847, did not sight any Navajo in the Zuni claim area, particularly inasmuch as the Navajo continued to retreat from the military pursuit.

Military officers of the United States (i.e., Americans) joined by an American Indian Agent and a topographical engineer reported that the Navajo raids were for the purpose of plundering.

In the mid-1800’s, American military reported that the Zunis had large herds of sheep and horses and extensively cultivated the soil, and noted evidence of agriculture in outlying areas. (Some expeditions also noted the commandeering of livestock and supplies, property of the Zunis, by a band of California emigrants.)

In a meeting in October 1849 with Americans, the Zunis requested military materiel to enable them to repulse Navajo raids. (Instead, the Americans promised to provide military protection. Various treaties and agreements were discussed.³³)

The Navajo raids continued throughout the mid-1800’s. During this period, American expeditions described the Zuni presence throughout the claim area, denoting the “Navajo Country” in the Chuska Mountain (north of the Zuni claim area) and the Apaches below the Mogollon Rim (south of the Zuni claim area).

Such expeditions also described the northern Zuni-Navajo border to be north of Fort Defiance at the south end of Canon Bonito (between points 14 and 15 on Plaintiffs Exhibit 240).

Throughout the mid-1800's, American (United States) military and other expeditions (including some trailblazers) received a considerable amount of various supplies from the hospitable Zunis. Descriptions by Americans, during this period, note the Zunis’ raising of sheep, horses and mules, and their practice of agriculture, on an extensive basis.

In 1854, Hispanic stockmen attempted to intrude upon Zuni (as well as Navajo) territory to graze their flocks. Apache bands increased their raids (including south of the Zuni claim area) in 1856. American military expeditions (sometimes joined by Zuni warriors and/or scouts) followed the trail of marauding Apaches. The Zunis and Apaches reached an apparent peace in 1858.

Navajo presence in Zuni territory, for the purpose of raiding, was again recorded by an American Indian Agent in 1857.

In August 1857, an American military officer again noted the abundant and extensive Zuni resources; he also sighted some Navajo grazing animals just northwest of the main Zuni pueblo and a few Yavapai who had been trading at Zuni.

In 1858-59, American military reconnaissance expeditions patrolled the Zuni claim area and reported that there was no evidence of any Navajo or Apache habitation within the area.

In the 1860’s, some Navajo were found in the Zuni claim area (particularly in the area of the Zuni Mountains) and were repulsed, or killed, by the Zuni.

In 1868, after four years of captivity under the Americans at Bosque Rendondo, the Navajos signed a treaty with the United States which allowed the Navajo to return to a reservation north of the Zuni territory (although the Zunis may have consented to a small group of Navajo families settling in the Ramah area).

In the mid to late 1860’s, some Navajo and Apache (seeking refuge from the United States military) and some Hispanic and “Anglo” settlers began to push into Zuni territory. The Zunis continually complained of this Navajo and Apache encroachment.

A major battle between the Zunis and the Navajos, on the banks of the Rio Puerco of the West, was reported in 1873. In 1875, the Zuni complained to the American Indian agent in Santa Fe that Mexicans (or Hispanics) were bringing large flocks of sheep into what they, the Zuni, considered their territory.

Between 1846 until 1900’s (approximately) the Zunis were subject to the territorial laws of the United States.

In 1850, the Zuni signed an agreement with the United States which bound the latter to protect the former from Navajo raids (refusing to the Zunis the ability and capability of doing so themselves).

FINDING NO. 88. Ultimate Finding:³⁴

A. The Zuni Tribe, plaintiff herein, had aboriginal title to the land contained in the area claimed by plaintiff (as described in Plaintiffs Exhibit 240 and Finding 60).

B. This aboriginal title existed from time immemorial beginning as early as 5,000 B.C. (at the latest) and continuing through and including at least 1846.

C. The Zuni, exclusively, used and occupied this claim area.

The entire claim area was used by the Zuni for one purpose or another including: habitation (chiefly in pueblos as well as in some of the outlying areas) and life-sustaining activities including farming, hunting, grazing, gathering, and religious worship. (This use continued even during periods of attack from others.)

The Zuni’s use was exclusive. The presence of any other indians or individuals was under particular specific circumstances, not detracting from the exclusivity of the Zuni use and ownership. Some other indians were present in the claim area with Zuni permission for such purposes as trade or travel; some were also given permission to use certain limited areas during partieu-lar designated seasons for limited purposes (such as agriculture). (Other individuals, namely the Mexicans and Spanish, were also present, with Zuni permission, for brief periods for the various purposes of, for example, travel including peaceful and military expeditions, trade, and activities related to government administration.) Other indians, particularly the Apache and Navajo, were also present in the claim area for brief, and various, periods of time and for the sole purpose of raiding; their presence was objected to, and was resisted and/or repulsed, by the Zuni.

1 . Defendant suggests that evidence in the form of testimony by tribal elders requires corroboration to be entitled to probative weight. Whatever the merits of that contention, this court would note that it has considered all the evidence including testimony by several expert witnesses, source material relied upon by witnesses and accompanying their written reports, and the documentary evidence, and considered the lay testimony in that context.

2 . Defendant also contends that the small Zuni population (1,500 to 2,500 by 1846) could not possibly have exclusively used and occupied the entire claim area (of some 5,000,000 acres). Defendant offers no factual support for this contention, however; in any event, the matter could not be resolved solely by noting the Zuni population and acreage but rather would require examination of the patterns of all populations of all similar areas at that time. See also Findings Nos. 8, 9, and 10.

3 . Defendant contends that the claim area was used or occupied by the following: Acoma, Hopi, Havasupai, Apache, and Navajo. With respect to the Acoma, the evidence primarily relied upon was prepared for another action and related to periods after 1870 (not before 1846) or is, for other reasons, not considered probative. With respect to the Hopi, the persuasive evidence addresses only those areas wherein the Hopi and Zuni shared traditional borders and such boundaries are the limit of the Zuni claim area, with Zuni use and occupancy within its boundaries. With respect to Havasu-pai habitation, the evidence shows that, if such habitation did occur, it ceased around 1400. With respect to the Apache and Navajo, the evidence establishes that their presence within the claim area was sporadic, for purposes of raiding, and was repulsed by the Zuni.

With respect to all these allegations and most of the Findings made by the court, there is again disagreement between the expert witnesses. As noted in the footnote to the Findings, the court has resolved these differences based on the preponderant and most persuasive evidence. (With respect to evidentiary citations, see also, plaintiffs proposed findings; plaintiffs response to defendant’s objections to plaintiffs proposed findings; and plaintiffs objections to defendant's proposed findings.)

4 . It is, however, important to note that that special jurisdictional act did provide as follows:

Any award made to any Indian tribe other than the Zuni Indian Tribe of New Mexico before, on, or after the date of ... this Act, ... with respect to any lands that are the subject of a claim submitted by the [Zuni] shall not be considered as a defense, estoppel, or setoff to such claim, and shall not otherwise affect the entitlement to, or amount of, any relief with respect to such claim.

Accordingly, contrary to the suggestion of defendant, this court concludes that any other findings by the Indian Claims Commission or any other court (and any evidence introduced in the course of proceedings before those tribunals but not before this court in the instant case) as to the use of the claim-area lands by any other tribes (including the Navajo) is not relevant here and cannot be used in the government's defense against plaintiffs claim.

5 . These Findings are based on a review of the Findings proposed by both parties—including their objections to the proposals of the opposing party, and their replies to objections of the opposing party—together with the evidence cited by both parties in support thereof. By and large, the court’s findings are patterned after those proposed by plaintiff, rather than those of defendant.

Much of the evidence introduced by the parties consisted of Expert Testimony and Reports, including the experts’ opinions, and the records reviewed and analyzed by experts. While the experts of both parties were credible and impressive, the court found the scope of evidence given by plaintiff’s experts to be the more persuasive.

To be sure, as defendant contends in its objections to plaintiffs requested Findings, for example, many of the opinions of the parties’ experts differed and some contrary testimony was introduced. However, the evidence introduced by defendant—patterned after its contentions— tended to take a limited view; defendant tended to focus on limited scientific disciplines, on inferences in the absence of evidence (such as those relating to the presence of other indians) and on limited land area use (such as that actually used for permanent homes).

The court concludes that plaintiff’s proposals cite the most persuasive evidence and that the preponderance of the evidence (including the archeological, anthropological, ethnological, as well as historical and cultural evidence) supports plaintiff’s view and proposed Findings. The court’s adoption of most of plaintiffs proposals thus in no way implies a lack of consideration of defendant’s contentions.

(See also the discussion of the parties’ legal contentions in the accompanying Opinion.)

6 . Additional findings, infra, address a matter which may be summarized here. During a brief 12 year period after the Pueblo Revolt (1680 to 1692), the Zuni retreated to the environs of Corn Mountain, which served as a defensive stronghold when Spanish soldiers threatened Zuni security. The evidentiary record nonetheless supports a finding that, even during this time, the Zuni ventured into other regions of the claim area (or otherwise collected or made use of the resources of the claim area) to sustain and augment life when restricted to Corn Mountain. (See also Finding 40 infra.)

7 . This Finding addresses Zunis' use of the biotic communities in the claim area. (Additional descriptions of Zuni use are set forth below for various periods of time. See Nos. 60 et seq. for the periods of alleged takings, beginning in 1846.)

The Finding is not refuted or rendered inaccurate even if, as defendant contends in its objection, other tribes, for limited times, used some of the resources of some of the claim area for various purposes. (See also accompanying opinion.)

Moreover, the court finds persuasive the arguments and evidence set forth in plaintiffs response to defendant’s objection. (See also Findings Nos. 43, 46, 48, 49, 75, and 80 re: Apache; 81 re: Acoma; 14 re: Hopi, 51, 55, 76 and 79 re: Navajo; and 24, 33, 52, 57-59 and 82 generally.)

8 . These ethnological cultures were described by Gordon R. Wiley (Defendant Ex. 19, pp. 180-81) as follows:

The Anasazai subarea has been linked with the present Pueblo Indians among whom are the Hopi and Zuni in the west and the Rio Grande towns of the east.

The historic Patayan subarea is linked to the historic and modem Yuma and the Hava-supai, Yavapai, and Walapai.

There may be a link between the Hohokam and the modem Pima and Papago.

Less certain is the link between the Mogol-lon and their modem relatives.

See also Finding No. 14 infra.

9 . In addition to the experts noted in the Finding, defendant points to the 1930 report of Frank H.H. Roberts, Jr. who at that time excavated Kiatuthlanna and examined its pottery. Plaintiffs expert T.J. Ferguson relied upon several studies conducted after 1930, in addition to his own extensive research. The court finds plaintiffs evidence persuasive.

10 . In the testimony, scientific experts such as archeologists used the term “abandonment" to refer to physical presence; thus tribes might "abandon” sustaining areas to consolidate their housing. These witnesses did not address "abandonment” as that term is used in the law relating to use and occupancy. This finding employs the term in its legal sense.

11 . Some additional comment on the limitations of language may address some of defendant’s objection to this (and similar) Finding. Defendant states:

Defendant denies this [evidence] represents claim areawide use of plants and animals by the Zuni. The above [evidence] only proves the likelihood of the use of specific plants and animals in a particular section of the Zuni claim area.

The court would note that individual citation to specific evidence addresses particular resources in certain parts of the claim area. An amalgam of the collective evidence does establish that the Zuni derived resources of one sort or another from within, or otherwise used, the entire claim area.

12 . The court recognizes that this particular Finding incorporates in part the modern Zuni tribe-members’ description of present religious observation and their belief and understanding of their history. Nonetheless, such beliefs have been established and are a part of the record. Moreover, this Finding is intended to be read in context with the other Findings based, unless otherwise noted, on objective evidence (e.g., expert testimony).

Beyond a present recounting of belief and understanding, and in addition to the citations cited in plaintiffs proposed Findings, plaintiff also points (in its response) to the observations of Mr. Roberts (Pltf. Ex. 1115 at pp. 6, 8-9) corroborating, at Kiatuthlanna in 1930 (prior to the enactment of the Indian Claims Act), similar Zuni beliefs particularly in their religious observations. (Mr. Roberts concluded his Report of this 1930 study with a caution against "too much" reliance being placed on modern recounting of primative history.)

The court acknowledges that, like any religious history, oral recounting throughout generations can become less than accurate. Again, however, this Finding is to be taken in context with all other Findings. Moreover, the court is persuaded by the testimony of plaintiffs experts that, to the Zunis as to members of other tribes, the transmission of historical data and tradition was always of great import with little, if any, reliance placed on any written documentation. Defendant conjectures, but offers no evidence to contradict or impeach the Zuni recounting of their history. And, given the import attached to the oral transmission of history and religious observation by the Zuni, there is no reason to suspect gross or deliberate distortion. Accordingly, the court is persuaded that, notwithstanding some insufficiency, this recounted history is of evidentiary probity.

13 . There is ample evidence of the Zuni presence. Defendant, however, contends that the Zuni may not have been the sole occupants of the claim area but that others (Athapascans or Apache or the Navajo) may have lived there. Defendant notes that no evidence of such other occupation exists because such groups customarily do not leave archeological evidence. Even if this contention is archeologically or scientifically correct, this court must conclude—in the absence of any evidence of occupation by any other group—that the Zunis were the only occupants.

14 . Defendant, again, contends that “non-sighting" of other Indians does not confirm their absence. The court, however, must weigh existing evidence—namely that no other Indians were seen and the presence of other Indians has not been in any way shown—and cannot speculate further. (See also the footnote to Finding 24.)

15 . See also the footnotes to Findings Nos. 24 and 25.

16 . Defendant objects that this Finding is supported solely by testimony of plaintiffs expert and is not corroborated by any documentation. However, expert opinion and testimony before the court, in matters such as these, is sufficiently probative.

17 . De Vargas described the entrance into "the pueblo which the natives of the pueblos of the Zuni tribe have on [the mountain’s] mesa top.” (Pltf. Ex. 4039, pp. 198-200.) The court disagrees with defendant’s conclusion that "the facilities on top of Corn Mountain were considered the pueblo of Zuni." Rather the evidence establishes that the tribe consisted of multiple pueblos (plural), one of which was on the mountain. The court is also persuaded that not only the mountain but portions of the claim area were used to contribute to the tribe’s subsistence.

18 . Mission burial records, showing cause of death, show only approximately 20 Zuni killed by Apache in the 50 year period, 1700-1750.

19 . What prevented the bishop’s visit was information given him expressing concern for the lives of the mules; there was extreme heat, the mules were swollen, and there was only one watering hole and no pasturage.

20 . Defendant, in objecting to this finding, contends that the descriptions (such as fn 2 above) of Zuni life warrant a conclusion that very little of the claim area was being used. The court does not agree but finds, as plaintiff argues, that the historical, archeological, and other expert testimony and evidence established wide-area use, as described here and elsewhere throughout these Findings.

21 . To some extent Dominguez apparently described directly the activities of Laguna and then, by reference, the Zuni, saying that what applied to Laguna also applied to the Zuni. Nonetheless, the description applies.

22 . Although not mentioned, there was, in 1779, apparently a group of Navajo north of Zuni (about twice as close as El Morro) and in the claim area; this settlement was a permissive farmsite granted to a few individuals temporarily to grow crops for a season.

The hostile Apache referred to by Dominguez were located particularly on the road from El Gallo to Laguana and within the Spanish Kingdom (including New Mexico in general) but not within the Zuni claim area or Kingdom of Cibo-la. (See also Finding 26.)

23 . One exceptionally extensive engagement occurred in 1807 when 300 Apaches attacked the Zunis in an all-day battle (with only 1 Zuni fatality). See also discussion in the text infra. The Apache raids were not intended to homestead members (and families) of that tribe in the Zuni claim area, or to permanently use or occupy that land.

Again, the reports of Dominguez of hostile forces addressed not the claim area but the Spanish Kingdom, particularly areas at the borders of the Zuni area (see also Finding No. 47, fn 22).

24 . It is apparently the Comanche threat, between Mexico and New Mexico, (in areas outside the Zuni claim area), which attracted the Spanish attention in fortification of the Spanish Kingdom generally.

25 . The Mexican period being 1821-1846, Navajo presence (or absence) in 1754, 1779, and 1816 is not particularly relevant here. (See also Finding 47, fn 22, re: 1779)

The defendant’s general contentions about 1816 rely on a report speculating that it was possible that some Navajo movement occurred; movement to Canyon de Chelly—the only location described by defendant and supported by primary source material—is outside the claim area. (See also the following text of the Finding).

26 . The court rejects defendant’s contention that any Navajo occupation was permanent or that it vitiated in any way the exclusive use and occupancy of the Zuni. Rather, the court finds the evidence (and contentions) advanced by plaintiff to be preponderant and more persuasive.

27 . Both parties introduced expert testimony concerning the boundaries of Zuni aboriginal territory (and proper claim area). Again, the court finds the evidence introduced and relied upon by plaintiff (including the related archeological, ethnological, historical, religious, and other evidence) to be the more persuasive. The court adopts plaintiff’s exhibit 240 and its 20 reference points as described in the text.

28 . Defendant objects generally to depiction of areas of use outside the claim area. Actually this applies almost entirely to areas designated as shrines or areas of worship. (These areas are shown separately on Plaintiffs Exhibit 242.)

The areas shown in the exhibit (241) depict use only (and is not intended to show use necessarily exclusive of other tribes). The area of exclusive use is designated by plaintiff as the claim area. (The claim area found to have been Zunis’ exclusive use and aboriginal title area has been determined by the court considering all the evidence surrounding all aspects of Zuni activity.)

29 . The text describes the Zuni efforts and achievement. It should also be noted, as defendant points out, that part of the achievement was complemented by the abundancy of the resources available and by the degree of demand upon them.

30 . This section incorporates some of the proposed findings of Plaintiff in its Nos. 85-87 and of Defendant in its Nos. 25-30.

31 . The court does not dispute defendant’s proposed Findings Nos. 25 and 29, to the extent that, in 1846, undoubtedly one large pueblo did exist within the area now designated as the Zuni Reservation, and that many Zuni lived there. The court also finds, however, that the Zunis also occupied the entire area of their claim; this occupation included some living accommodations—either seasonal (or temporary for the use of those hunting, gathering, worshipping, or for any of a variety of activities) or permanent— and, to a larger extent, the occupation included continuous and extensive use of the area for the many agricultural, gathering, hunting, religious, and other purposes described in the above Findings.

32 . The Finding addresses some matters (and the parties’ proposed findings) beyond those enumerated in the Opinion above. They are not intended to deal comprehensively with such proposals (or their subject matter) or to address the allegations concerning the events of the purported taking. Rather, they are included here only insofar as they may be relevant to the issue addressed herein: the extent of plaintiffs aboriginal lands—that area over which plaintiff had exclusive use and occupancy. Here too the court finds the preponderant, substantial, and persuasive evidence to be that cited in support of plaintiffs requested findings (and plaintiff's response to defendant’s objections thereto).

33 . Throughout this period, the United States was to continually, and without any long-lasting success, attempt to negotiate peace treaties with the Navajo (addressing issues of peace not only with the United States but with its citizens including the Zunis). Among the many difficulties was the disparate nature of the many separate Navajo bands.

34 . This ultimate finding is based on the facts found in all previous findings. To the extent that the conclusions herein involve concepts of law, they are also discussed in the opinion accompanying these Findings.