THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, PETITIONER V. PUEBLO OF SANTA ANA No. 84-262 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit Brief for the United States as Amicus Curiae Supporting Petitioner TABLE OF CONTENTS QUESTIONS PRESENTED Statement A. Background B. The circumstances of this case Introduction and summary of argument Argument: A. Respondent's grant of an easement for a telephone line, made with the approval of the Secretary of the Interior, is not invalid under Section 17 of the Pueblo Lands Act 1. The language of Section 17 2. The legislative history 3. Subsequent administrative construction and legislative response B. This suit is not barred by res judicata Conclusion QUESTIONS PRESENTED 1. Whether the conveyance by the respondent Pueblo of Indians of a right of way permitting petitioner to maintain a telephone line across the Pueblo's land -- made in 1928 with the approval of the Secretary of the Interior pursuant to Section 17 of the Pueblo Lands Act of 1924, ch. 331, 43 Stat. 641-642 -- should now be declared invalid because the conveyance was not also approved by Congress. 2. Whether this suit by respondent seeking to recover trespass damages for the allegedly unlawful presence of the telephone line on Pueblo lands is barred by the doctrine of res judicata because, after the Secretary approved the conveyance of the right of way under Section 17 of the Pueblo Lands Act, petitioner was dismissed as a defendant in a quiet title action brought by the United States in 1928 on behalf of the Pueblo. This brief is filed in response to the Court's invitation to the Solicitor General to express the views of the United States. STATEMENT A. Background 1. In 1848, the United States and the Republic of Mexico entered into the Treaty of Guadalupe-Hidalgo (Treaty of Peace, Freindship, Limits, and Settlement, Feb. 2, 1848, United States-Mexico), 9 Stat. 922, under which the United States gained sovereignty over the territory of the present State of New Mexico. In Section 7 of the Act of February 27, 1851, 9 Stat. 587, Congress provided that "all laws now in force regulating trade and intercourse with the Indian tribes, or such provisions of the same as may be applicable, shall be, and the same are hereby, extended over the Indian tribes in the Territories of New Mexico and Utah." This statute had the effect of extending to the Indian tribes in New Mexico the provisions of the Trade and Intercourse Act of 1834, ch. 161, 4 Stat. 729 et seq., including Section 12 of that Act, which imposed restraints on the alienation of Indian land. 4 Stat. 730. It was unclear, however, whether the term "Indian tribes" in the 1851 Act embraced inhabitants of the Indian Pueblos, which were communities in the Rio Grande Valley of New Mexico that predated the advent of the Europeans and later came to own their lands in fee under Spanish land grants. F. Cohen, Handbook of Federal Indian Law 383 (1942). The question first arose in United States v. Lucero, 1 N.M. 422 (1869), an action brought by the United States alleging that a non-Indian's settlement on Pueblo lands violated Section 11 of the Trade and Intercourse Act of 1834 (Rev. Stat. Section 2118), which made unauthorized settlement on Indian lands a federal offense. The Supreme Court of the New Mexico Territory held that the Pueblo Indians were not covered by the Trade and Intercourse Act because they were not under the supervision of an Indian agent, owned their land in fee, lived in settled communities, and were peaceful and civilized. 1 N.M. at 437-445. This Court later reached the same conclusion, holding that the Pueblos were not "Indian tribes" within the meaning of the Trade and Intercourse Act because of the inhabitants' peaceful and settled lifestyle and their ownership of their lands in fee. United States v. Joseph, 94 U.S. 614, 617-619 (1876). Consistent with the decision in Joseph, the Supreme Court of the Territory subsequently held, in a suit brought by a non-Indian to quiet title to lands allegedly acquired from a Pueblo, that the Pueblo had validly granted the land in question and that, in any event, the 10-year statute of limitations under the laws of the Territory ran against the Pueblo and resulted in the non-Indian's acquisition of title by adverse possession. Pueblo of Nambe v. Romero, 10 N.M. 58, 61 P. 122 (1900). In a like vein, the Supreme Court of the Territory held in United States v. Mares, 14 N.M. 1, 88 P. 1128 (1907), that the Act of January 30, 1897, ch. 109, 29 Stat. 506 et seq., which prohibited the sale of intoxicating liquor to Indians, did not apply to the Pueblo Indians. 2. The principles regarding the status of Pueblo land under Joseph and the decisions of the Supreme Court of the Territory just discussed were thereafter called into question by the New Mexico Enabling Act and this Court's decision in United States v. Sandoval, 231 U.S. 28 (1913). Section 2 of the Enabling Act required the constitution of the proposed State of New Mexico to prohibit the introduction of liquor into Indian country, expressly including the lands occupied by the Pueblos, and to provide that "the terms 'Indian' and 'Indian country' shall include the Pueblo Indians of New Mexico and the lands now owned or occupied by them." Act of June 20, 1910, ch. 310, 36 Stat. 557, 558, 560. In Sandoval, the Court sustained an indictment charging the unlawful introducing of liquor into the territory of a Pueblo. The Court observed that it was unnecessary to determine whether the 1897 liquor statute, standing alone, would have applied to Pueblo lands, because Congress, responding to the decision of the Territorial Supreme Court in United States v. Mares, supra, chose in Section 2 of the Enabling Act to bring the Pueblo lands within the reach of the liquor statute. 231 U.S. at 37-38. Although Sandoval involved only the application of the Indian liquor laws to the Pueblos, the Court's opinion cast doubt on the continued validity of the views expressed in Joseph regarding the status of the Pueblos. Specifically, the Court held that Congress had the constitutional authority to bring the Pueblo Indians under the federal liquor laws affecting Indians, even though the Pueblos held their land in fee, because of the "uniform course of action" by the Executive and Legislative Branches that regarded the Pueblos as dependent communities entitled to the aid and protection of the United States in the same manner as other Indian tribes. 231 U.S. at 47. The Court acknowledged that there were contrary observations in Joseph regarding the Pueblos, but it stated that those observations "were evidently based upon statements in the opinion of the territorial court, then under review, which are at variance with other recognized sources of information, now available, and with the long-continued action of the legislative and executive departments" (231 U.S. at 48-49). 3. Because the decision in Sandoval cast doubt on the continued force of the decision in Joseph, there was increasing uncertainty whether past conveyances of land made by the Pueblos without the approval of the federal government were valid. The status of the Pueblos' land as of 1924 was described as follows (S. Rep. 492, 68th Cong., 1st Sess. 5 (1924)): Up to the time of the decision of the Sandoval case in 1913, it had been assumed by both the Territorial and State courts of New Mexico, that the Pueblos has (sic) the right to alienate their property. * * * As a result of this situation, conflicts as to title and right to possession arose and exist in many instances. * * * (T) here are now approximately 3,000 claimants to lands within the exterior boundaries of the Pueblo grants. The non-Indian claimants with their families comprise about 12,000 persons. With few exceptions, the non-Indian claims range from a town lot of 25 feet front to a few acres in extent. * * * (P)robably 80 per cent of the claims are not resisted by the Indians and only about 20 per cent of the number will be contested. Congress enacted the Pueblo Lands Act of 1924 (Act of June 7, 1924, ch. 331, 43 Stat. 636 et seq.) to resolve these competing claims to lands once held by the Pueblos. Under the Pueblo Lands Act, if a non-Indian had occupied the land in question for a specified period of time, the Pueblo's title was to be extinguished and title was to be quieted in the non-Indian. Section 2 para. 2, 4(a) and (b), 5, 43 Stat. 636-637. /1/ If the United States could have recovered the land for the Pueblo by the "seasonable" prosecution of a suit -- defined to mean prosecution within the time permitted under the statutes of limitation of the Territory and State of New Mexico -- the United States was to be liable to the Pueblo for the amount of the loss it sustained. Section 5. The remainder of the land within the area of the grant to the Pueblo was to be quieted in the Pueblo, although it was contemplated that non-Indians who occupied the land in good faith would receive compensation from Congress for their losses. Sections 3, 7 and 15, 43 Stat. 636, 639 and 641; Act of May 31, 1933, ch. 45, Section 3, 48 Stat. 109. The governmental agency charged with resolving these competing land claims was the Pueblo Lands Board, which was comprised of the Attorney General, the Secretary of the Interior, and a third member appointed by the President. Section 2 of the 1924 Act, 43 Stat. 636. After the Board issued a report concerning the lands of particular Pueblo, the Attorney General was required by Section 3 of the Act to file a suit to quiet title in the Pueblo to any lands to which the Board had determined the Indian title had not been extinguished. See note 1, supra. Under Section 13 of the Act, at any time two or more years after the Board filed its report, the Secretary was to file field notes and a plat in the office of the Surveyor General for New Mexico, showing the lands to which Indian title had been extinguished according to the Board's report but excluding any lands claimed by or for the Indians in court proceedings then pending. 43 Stat. 640. Certified copies of the plat were to be accepted as "competent and conclusive evidence" of the extinguishment of all right, title and interest of the Indians and the United States to that land. Ibid. However, Section 4 provided that nothing in the Pueblo Lands Act impaired any existing right of a Pueblo to assert its title and right to land in proceedings begun prior to the filing of the field notes and plat under Section 13. See 43 Stat. 637. /2/ Finally, Section 17 of the Act, at issue here, provided (i) that no interest in lands to which a Pueblo's title was not extinguished "shall hereafter be acquired or initiated by virtue of the laws of the State of New Mexico, or in any other manner except as may hereafter be provided by Congress," and (ii) that "no sale, grant, lease of any character, or other conveyance of lands" by a Pueblo "shall be of any validity in law or equity unless the same be first approved by the Secretary of the Interior." 43 Stat. 641. B. The Circumstances of This Case 1. This case concerns the validity of an easement for a telephone line granted by respondent Pueblo of Santa Ana to petitioner Mountain States Telephone and Telegraph Company and approved in 1928 by the Secretary of the Interior pursuant to the second clause of Section 17 of the Pueblo Lands Act (J.A. 38-43). The line originally was constructed by a predecessor of petitioner in 1905 or 1907 (Pet. App. 14; Br. in Opp. 3). Because it did not appear that petitioner had obtained a valid right of way for its telephone line, petitioner was named as a defendant in the suit brought by the Attorney General in November 1927 under Section 3 of the Pueblo Lands Act to quiet title to respondent's lands. United States v. Brown, Equity No. 1814 (D.N.M. 1928). /3/ See Pet. App. 10, 21; J.A. 17-19, 28. On February 23, 1928, after petitioner was served (J.A. 69-71) and while the suit was pending, respondent signed an agreement granting petitioner an easement to maintain a telephone pole line across respondent's land, but reserving to respondent the right to cultivate or otherwise use the land under and adjacent to the line (J.A. 39-40). The Superintendent of the Pueblo Agency recommended to the Commission of Indian Affairs that the agreement be approved. The Superintendent stated that he had been present at the meeting during which the agreement was reached and that he believed the price -- $101.60, or 80› per pole for 127 poles -- was "fair" and a "little higher" than that paid other Pueblos (J.A. 180-181). The agreement thereafter was approved by the Assistant Secretary of the Interior on April 13, 1928, "pursuant to Section 17 of the Act of June 7, 1924" (J.A. 43; see Pet. App. 10). The United States then moved to dismiss the bill of complaint in the quiet title suit as to petitioner (J.A. 36). By order dated May 31, 1928, the court granted the government's motion, stating (J.A. 37): This cause coming on to be heard upon plaintiff's motion to dismiss as to defendant, the Mountain States Telephone & Telegraph Company, a corporation, and it appearing to the court that since the institution of this suit said defendant has secured good and sufficient title to the right of way and premises in controversy herein between plaintiff and said defendant by deed from the Pueblo of Santa Ana approved April 13, 1928 by the Secretary of the Interior in accordance with the provisions of Section 17 of the Pueblo Lands Act of June 7, 1924, IT IS HEREBY ORDERED that this suit be, and it is hereby, dismissed as to said defendant. 2.a. The instant suit was commenced by respondent in the United States District Court for the District of New Mexico on October 10, 1980 (J.A. 1). On petitioner's motion for summary judgment, the district court held that Section 17 of the Pueblo Lands Act did not authorize respondent to grant the right of way, even with the approval of the Secretary, and that the suit is not barred by res judicata (Pet. App. 14-22). The district court accordingly held that respondent is entitled to recover trespass damages from the year 1928 until the date on which the line was removed in 1980, although it denied respondent's prayer for punitive damages (id. at 22). b. On interlocutory appeal pursuant to 28 U.S.C. 1292(b), the court of appeals affirmed (Pet. App. 1-13). The court of appeals rejected the contention that the first clause of Section 17 required the consent of Congress only for the acquisition of a Pueblo's lands without the Pueblo's consent (e.g., through condemnation) and that the second clause of Section 17 affirmed a preexisting right of the Pueblos to alienate their land, albeit henceforth subject to the approval of the Secretary (Pet. App. 5, 7-8). Instead, the court of appeals held that respondent's grant of the right of way to petitioner in 1928 was void unless Section 17 affirmatively conferred on the Pueblos the power to convey their lands. The court declined to read Section 17 as conferring such a right. The court inferred from the use of the word "and" in joining the two clauses of Section 17 that the Section stated two prerequisites for the alienation of Pueblo land: conveyance in a manner approved by Congress and approval by the Secretary (Pet. App. 8-9). The court of appeals also rejected petitioner's reliance on the administrative construction given Section 17 by the Department of the Interior in approving numerous conveyances under that Section over the years, explaining that the administrative actions violated what it believe to be the "plain congressional intent" of Section 17 (Pet. App. 10). The court of appeals also held that the instant suit is not barred by the doctrine of res judicata as a result of the 1928 dismissal of petitioner as a defendant in United States v. Brown, supra, the quiet title suit brought by the United States pursuant to Section 3 of the Pueblo Lands Act (Pet. App. 10-12). The court relied on the fact that the order of dismissal in Brown was not expressly entered "with prejudice" (id. at 11-12). The court also explained that the order of dismissal did not indicate that the court actually had considered or approved the agreement by which respondent granted the right of way to petitioner (id. at 12). INTRODUCTION AND SUMMARY OF ARGUMENT If we were to look only to the somewhat ambiguous language of Section 17 of the Pueblo Lands Act in isolation, the court of appeals' construction of that Section as barring a Pueblo from granting a right of way, even with the approval of the Secretary of the Interior, is perhaps a plausible one. But the contrary administrative construction of that language soon after the Pueblo Lands Act was passed is, in our view, equally if not more plausible, and it should have been accepted by the court of appeals. Chevron U.S.A. Inc. v. NRDC, No. 82-1005 (June 25, 1984), slip op. 4-7. Under the latter interpretation, the first clause of Section 17 requires congressional approval for acquisitions of interests in Pueblo lands without the Pueblo's consent, and the second clause requires only the approval of the Secretary for conveyances made by the Pueblo itself and therefore with its consent. This interpretation best comports with the language and structure of Section 17, as well as with its sparse legislative history, which suggests a congressional intent to depart from the requirement in Section 12 of the Trade and Intercourse Act of 1834 that Congress must approve any conveyance of Indian lands. In addition, the contemporaneous construction of Section 17 was followed in the transaction at issue in this case and numerous other grants of rights of way by New Mexico Pueblos during the ensuing 35-year period. The Secretary's reliance on Section 17 in this manner also was effectively ratified by Congress in 1926 and 1928, when it enacted special statutes to facilitate the acquisition of rights of way over Pueblo lands where the Pueblo had refused to enter into an agreement under Section 17. An interpretation so firmly entrenched and broadly accepted should not have been disregarded by the courts below. It may well be, however, that other types of conveyances by the Pueblos that are not supported by a comparable administrative and statutory history would require congressional approval, especially in light of this Court's decision in United States v. Candelaria, 271 U.S. 432 (1926), which made clear that the restraint on alienation in Section 12 of the Trade and Intercourse Act of 1834 applies to the Pueblos. We therefore limit our submission regarding the scope of Section 17 of the Pueblo Lands Act to the approval of rights of way. By the same token, we do not urge the Court to reject respondent's claim on the alternative ground of res judicata. A decision in petitioner's favor or that narrow and fact-bound issue, which involves the application of now-outdated principles that once governed suits in equity, would not resolve the validity of numerous other rights of way that were granted pursuant to the second clause of Section 17 but were not the subject of judicial orders. For this reason, and because we believe the validity of petitioner's right of way under Section 17 is clear, we confine our submission primarily to that issue. In any event, we do not believe the order of dismissal in 1928 bars this suit. ARGUMENT A. RESPONDENT'S GRANT OF AN EASEMENT FOR A TELEPHONE LINE, MADE WITH THE APPROVAL OF THE SECRETARY OF THE INTERIOR, IS NOT INVALID UNDER SECTION 17 OF THE PUEBLO LANDS ACT 1. The Language of Section 17 a. The starting point of our analysis of the competing interpretations of the Pueblo Lands Act must of course be the language of Section 17 itself, for "we assume 'that the legislative purpose is expressed by the ordinary meaning of the words used.'" Kosak v. United States, No. 82-618 (Mar. 21, 1984), slip op. 5, quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982). However, in this case the "words used" are perplexing and, at least on first reading, seem to support both interpretations. Section 17 is divided into two separate clauses: (1) No right, title, or interest in or to the lands of the Pueblo Indians of New Mexico to which their title has not been extinguished as hereinbefore determined shall hereafter be acquired or initiated by virtue of the laws of the State of New Mexico, or in any other manner except as may hereafter be provided by Congress, and (2) no sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by an pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or equity unless the same be first approved by the Secretary of the Interior. The first clause, read in isolation, could be understood to state a flat prohibition against a non-Indian's "acquir(ing)" Pueblo lands in any manner whatever -- by purchase, gift, adverse possession, or condemnation -- except as may "hereafter" be provided by Congress. And yet it would appear that the most natural inference to be drawn from the language of the second clause, standing alone, is that if the specified condition of approval by the Secretary is met, the conveyance is valid; there is no suggestion in the second clause that approval by Congress also is required. How, then, should these separate and seemingly contradictory provisions of Section 17 be reconciled so that the Section as a whole may be given a sensible meaning? The court of appeals chose to give controlling effect to the first clause, reading it as an absolute prohibition against any conveyance of land by a Pueblo that has not been authorized by some other Act of Congress. But that construction renders the second clause superfluous, because the Secretarial approval that it prescribes would in all instances be insufficient under the first clause. The court of appeals' construction therefore contravenes the "elementary canon of construction that a statute be interpreted so as not to render one part inoperative." Colautti v. Frankline, 439 U.S. 379, 392 (1979). Furthermore, the reasoning of the court of appeals in reaching that surprising result is very strained. The court of appeals found it significant that the first and second clauses are joined by the conjunctive "and" -- which, the court concluded, "means exactly what it says" (Pet. App. 8): that "(n)o alienation of the Pueblo lands shall be made "except as may hereafter be provided by Congress' and no such conveyance 'shall be of any validity in law or in equity unless the same be approved by the Secretary of the Interior'" (ibid. (emphasis supplied by the court)). But, contrary to the court of appeals' view, that is not what Section 17 "says." If the second clause actually stated that "no such conveyance" shall be of any validity unless approved by the Secretary, the term "such conveyance" might well be understood to refer back to transactions covered by the first clause. But in fact it was the court of appeals, not Congress, that inserted the term "such conveyance" into the statutory language; the second clause, as enacted by Congress, simply states: "and no sale, grant, * * * shall be of any validity * * *." Thus, on its face, the second clause does not refer back to transactions covered by the first clause; it instead appears to address a separate matter. The word "and" is frequently used to join clauses that are independent of one another in this manner. Because the court of appeals' focus on the word "and" constituted its complete analysis of the statutory text, the court's resulting discernment in that text of a "plain congressional intent" to bar all conveyances made without the approval of Congress is without any substantial support. b. However, there is another interpretation of Section 17 that, in contrast to the court of appeals' construction, does give independent meaning to each of the clauses. Under this view, the first clause is addressed to the acquisition of an interest in Pueblo lands without the Pueblo's consent -- e.g., by condemnation, /4/ adverse possession, /5/ or the grant of a right of way by the Secretary. /6/ The first clause therefore serves to protect the Pueblos against involuntary loss of their lands by flatly prohibiting all such acquisitions, except in the manner Congress might subsequently -- "hereafter" -- provide. The second clause, under this view, is addressed to the voluntary conveyance of land (or interests in land) by the Pueblo itself. The second clause does not probhibit such consensual transactions altogether, but does secure protection for the Pueblo by rendering any such conveyance invalid unless it is first approved by the Secretary. Read in this way, the two clauses of Section 17 serve different purposes and yet complement one another and together establish a comprehensive mechanism for protection of Pueblo lands. This interpretation of Section 17 is supported by the language Congress employed. The first clause provides that no right, title, or interest in Pueblo lands shall be "acquired" or "initiated" under the laws of New Mexico or in any other manner except as provided by Congress. The words "acquired" and "initiated" focus not on any actions of the Pueblo, but on actions by a person who might claim an adverse interest in the Pueblo's land, either by "acquiring" such an interest outright or by "initiating" the process for doing so (e.g., by occupying the land and thereby commending the period necessary to transfer title by adverse possession). /7/ By contrast, the second clause speaks of a "conveyance of lands * * * made by an pueblo" (emphasis added). It thus addresses the situation from the perspective of the Pueblo itself, and focuses only on consensual transactions -- a "sale, grant, lease of any character, or other conveyance" -- to which the Pueblo is a party. c. Respondent, like the court of appeals, places considerable emphasis on what it perceives to be the similarity between Section 17 of the Pueblo Lands Act and Section 12 of the Trade and Intercourse Act of 1834. In its view, the purpose of each to prevent transfers of Indian land without federal consent supports a construction of Section 17 that requires approval by Congress, just as under the Trade and Intercourse Act, which required that such a conveyance be made by treaty. See Br. in Opp. 11-15, 19-20; Pet. App. 5-8. In fact, however, the parallel between the two statutory provisions undermines rather than supports respondent's position. Only the second clause of Section 17 is patterned after Section 12 of the Trade and Intercourse Act of 1834. The latter provides that "no purchase, grant, lease, or other conveyance * * * from any * * * tribe of Indians, shall be of any validity in law or equity, unless the same shall be made by a treaty or convention entered into pursuant to the constitution." The second clause of Section 17 reads in essentially the same manner, except that approval by the Secretary is substituted for approval by treaty. That striking change in text that otherise remained essentially the same would appear to reflect a quite deliberate decision by Congress to delegate to the Secretary the authority to approve conveyances by the Pueblos, rather than to reserve that authority to itself. Respondent contends (Br. in Opp. 17), however, that the second clause cannot be read in this manner because it is phrased in the negative rather than as an affirmative grant of authority to the Pueblos to convey their land with the approval of the Secretary. The district court relied on the same rationale, explaining that the provision for approval by the Secretary was not a sufficiently "clear and express" authorization for the grant or sale of Pueblo lands (Pet. App. 19-20). The difficulty with this argument is that Section 12 of the Trade and Intercourse Act of 1834, after which Section 17 was patterned, likewise is written in negative terms, not as an affirmative grant to Indian tribes to convey their land. Yet it is clear that where the prescribed condition of federal approval under that Act has been satisfied -- in the form of a federal treaty -- the tribe may convey its land. There is no reason to read the second clause of Section 17 any differently where the parallel condition of federal approval it prescribes -- approval by the Secretary -- has been satisfied. The explanation for the negative phrasing of Section 12 of the Trade and Intercourse Act, and hence of Section 17 of the Pueblo Lands Act, presumably derives from the origins of the restraint on alienation it embodies. This Court on several occasions has stated that the prohibition derived not from an incapacity of the Indians to see, but from the inability of the non-Indian to purchase without federal approval, thereby preserving for the federal sovereign the exclusive right to purchase Indian lands and the ability to eliminate potentially hostile competitors. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 544 (1832); Holden v. Joy, 84 U.S. (17 Wall.) 211, 214 (1872). The rationale of restraints on alienation now has largely shifted to one of protecting the Indians in their own right, but this difference in emphasis does not detract from the obvious purpose of the second clause of Section 17 to permit conveyances where the approval by the Secretary has been obtained. /8/ 2. The Legislative History Although the legislative history specifically bearing on Section 17 of the Pueblo Lands Act is sparse, an exchange during the Senate Hearings does suggest that Congress intended to permit a Pueblo to convey land with the approval of the Secretary. /9/ The broader purposes Congress sought to accomplish in the Act as a whole reinforce that inference. As petitioner explains (Pet. Br. 21-26), in light of the competing claims to Pueblo lands that arose because of the widely shared view prior to Sandoval that Pueblo lands were not subject to federal control and instead were governed by state law, it is understandable that Congress would expressly provide in the first clause that no adverse claims to Pueblo lands could be acquired in the future under the laws of New Mexico or in any other manner except as Congress might authorize, and to specify in the second clause the precise manner in which federal control over certain transactions would be exercised in the future: through Secretarial supervision of any conveyances made by the Pueblos. Respondent relies (Br. in Opp. 11-13) on the brief explanation of the proposed Section 17 by Francis Wilson, who had been the Special United States Attorney for the Pueblos, in a letter dated December 18, 1923, to the Commissioner of Indian Affairs. See Br. in Opp. App. 12-14. We have no reason to doubt that this letter represents an authentic and authoritative explanation of the purposes of Section 17. But in our view, the letter undermines rather than supports respondent's position. The pertinent sentences in the letter state (Br. in Opp. App. 12): I would like to call your attention to the fact Section 17 of the Bill is, we think the shortest way to prevent present conditions from recurring or existing again. * * * This section is intended to cover the same ground as Section 2116 of the Revised Statutes (Section 12 of the Trade and Intercourse Act of 1834) but is is changed so as to accord with the conditions of the Pueblo Indians. The first sentence is fully consistent with our view that Section 17 comprehensively prevents a repetition of the problems that the Pueblo Lands Act was intended to resolve by flatly prohibiting in the first clause the acquisition of adverse interests in Pueblo land without the Pueblo's consent and by prescribing in the second clause the manner of federal control over conveyances made with the Pueblo's consent. The second sentence is more significant. It states that Section 17 covers the "same ground" as Section 12 of the Trade and Intercourse Act -- i.e., covers the subject matter of conveyances of land by the Indians themselves -- but that it is "changed so as to accord with the conditions of the Pueblo Indians" (emphasis added). This sentence thus reinforces the conclusion that Congress deliberately departed from the generally applicable restrictions in the Trade and Intercourse Act and that Congress did so because it perceived that the Pueblos were different from other tribes. The only material way in which the substance of Section 17 is "changed" is in its provision for approval of tribal conveyances by the Secretary rather than by Congress. We cannot be certain what different conditions Congress perceived that warranted this different approach. Perhaps Congress was motivated by the recognition that the Pueblos, unlike most other tribes, owned their land in fee, and that a conveyance by them accordingly would not affect property to which the United States held legal title and thereby implicate congressional control over such property. See U.S. Const., Ar. IV, Section 3, C. 2. Perhaps Congress acted as it did because the Pueblos previously had been though to be competent to convey their lands without any federal approval, and requiring the approval of the Secretary was viewed as an appropriate middle course between that prior practice and a rigid prohibition of such sales under the Trade and Intercourse Act. /10/ Perhaps the explanation is in part that the United States did not have treaties with the Pueblos: because a conveyance of Pueblo lands would not be in derogation of rights secured by a treaty, Congress might have thought it unnecessary for the conveyance to receive federal consent in the form of a new treaty (or an Act of Congress, its modern equivalent in Indian affairs /11/ ). And perhaps -- although the Court in Sandoval recognized that the Pueblos were dependent communities and accordingly might not be fully competent to convey their lands without federal approval /12/ -- Congress nevertheless believed that they were more capable of managing their own affairs /13/ and therefore should not be subject to the flat prohibition against conveyances that applied to other tribes. We do not suggest that any one of these factors in the legislative background of the Pueblo Lands Act necessarily was dispositive. But considered in combination, they amply explain why Congress might have wanted to prescribe the different manner of federal approval of Pueblo conveyances that the second clause of Section 17 on its face seems plainly to contemplate. 3. Subsequent Administrative Construction And Legislative Response As we have explained in Points 1 and 2, it is our view that the more reasonable interpretation of the somewhat ambiguous text and sparse legislative history of Section 17 is that Congress intended to permit conveyances of Pueblo lands with the approval of the Secretary. But however, that may be, that construction, in our view, is now compelled by post-enactment events, at least in the context of grants of rights of way. a. Shortly after the Pueblo Lands Act was passed, questions arose concerning the continued presence of railroad, telephone, and telegraph lines on Pueblo lands. All parties concerned soon decided to rely on the second clause of Section 17 as authority for permitting a Pueblo, with the approval of the Secretary, to convey the right of way necessary to enable such lines to remain. The matter first was considered in connection with the rights of way of the Santa Fe Northwestern Railway across the lands of several Pueblos, specifically including those of respondent. In 1924, the Secretary of the Interior had granted applications by the Railway for such rights of way across the lands of the Pueblos of Zia, Jemez, and Santa Ana (respondent), pursuant to the Act of March 2, 1899, ch. 374, 30 Stat. 990, 25 U.S.C. 312 et seq. (J.A. 75, 128-129; Br. in Opp. App. 1-2). The 1899 Act permitted the Secretary to grant such rights of way to railroads across Indian lands even without the consent of the Tribe, with compensation to be paid for the benefit of the tribe in an amount determined by the Secretary. Section 3, 25 U.S.C. 314. However, the Pueblo Lands Board subsequently concluded that the 1899 Act did not apply to lands owned in fee by a Pueblo (Br. in Opp. 2; J.A. 75-76). Accordingly, after the Pueblo Lands Board filed its report on the Pueblo of Jemez, the United States filed a quiet title suit against the Santa Fe Northwestern Railway, seeking a judicial declaration that the Railway had no interest in the land of the Pueblo of Jemez (Br. in Opp. App. 1; Pet. Br. App. 1a-2a). The Special Assistant to the Attorney General for the Pueblos, George Fraser, subsequently reported to the Attorney General that agreement had been reached among the representatives of the Secretary, the Pueblo of Jemez and other interested parties to validate the right of way under Section 17 of the Pueblo Lands Act (Br. in Opp. App. 5; Pet. Br. App. 2a). /14/ He explained that "(a)t first reading the two halves of the section seem contradictory," because the first provided for approval by Congress and the second for approval by the Secretary. But Mr. Fraser contined (Br. in Opp. App. 6-7; Pet. Br. App. 3a-4a): We concluded, however, that the two halves might be harmonized by construing the first to mean that no title could be adversely acquired except under subsequent acts of Congress, and the second to mean that the Pueblos might voluntarily convey, and that such conveyance would be good if approved by the Secretary. Like so many other feature(s) of this Act, the foregoing construction cannot be considered certain, but seems reasonable. This, of course, is precisely the interpretation that we believe best comports with the language, structure, and legislative background of the Pueblo Lands Act. This interpretation in turn was adopted by the government and implemented in the years soon after passage of the Act through the approval by the Secretary of the rights of way granted by respondent and the Pueblo of Zia to the Santa Fe Northwestern Railway (see page 24, infra), and other rights of way, including the one granted by respondent to petitioner for the telephone line at issue in this case, which was approved by the Assistant Secretary under Section 17 on April 13, 1928. /15/ Respondent, with the approval of the Secretary under Section 17, also granted eight other rights of way across its lands between 1926 and 1958 (J.A. 113-115), including two to the Bureau of Reclamation, approved in 1956 and 1958, for canals (J.A. 165-180). An additional 55 rights of way and one conveyance of fee title to certain land by the other Pueblos under the jurisdiction of the Southern Pueblos Agency were approved between October 1924 and December 1959 (J.A. 113-114). Such a contemporaneous and longstanding interpretation of the Act is entitled to great weight. See, e.g., BankAmerica Corp. v. United States, No. 81-1987 (June 8, 1983), slip op. 7-9; Bryant v. Yellen, 447 U.S. 352, 377-378 (1980); Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978). Deference to that construction is particularly appropriate here, because title to rights of way passed in reliance upon the Secretary's approval. See Nevada v. United States, No. 81-2245 (June 24, 1983), slip op. 17-18 n.10; United States v. Midwest Oil Co., 236 U.S. 459, 472-473 (1915). Moreover, this application of Section 17 was accepted by the District Court for the District of New Mexico, which had exclusive jurisdiction over quiet title suits brought under the Pueblo Lands Act. Sections 1, 3, 43 Stat. 636. As we have noted (see pages 7-8, supra), that court, without questioning the application of Section 17, dismissed petitioner as a defendant in the suit to quiet title to respondent's land after respondent's conveyance of a right of way was approved by the Secretary under Section 17. More significantly, however, that court also entered final decrees in other quiet title suits that formally sanctioned the conveyance of rights of way with the approval of the Secretary under Section 17. See United States as Guardian of the Pueblo of Acoma v. Arvizo, Equity No. 2079 (D.N.M. May 14, 1931); United States as Guardian of the Pueblo of Laguna v. Armijo, Equity No. 2080 (D.N.M. Nov. 2, 1931). An interpretation that received such broad acceptance by the responsible Executive Departments and the responsible district court should not have been disregarded by the court of appeals. See also Chevron U.S.A. Inc. v. NRDC, No. 82-1005 (June 25, 1984), slip op. 4-7. b. What is more, Congress has acquiesced in and effectively ratified this application of Section 17 to conveyances of rights of way. As explained above, the now-settled administrative construction of Section 17 had its origins in the problems created by the realization in 1926 that the rights of way purportedly granted by the Secretary in 1924 to the Santa Fe Northwestern Railway over the lands of respondent and the Pueblos of Zia and Jemez probably were not authorized by the 1899 right-of-way statute. Respondent and the Pueblo of Zia subsequently entered into agreements with the Santa Fe Northwestern in 1926 conveying the necessary rights of way, and those agreements were approved by the Assistant Secretary of the Interior pursuant to Section 17 (J.A. 128-129). /16/ The Pueblo of Jemez, however, refused to do so. This created an obstacle to the Railway's retention of its right of way and its ability to operate over its line. To solve this problem, the Attorney General of New Mexico proposed to New Mexico's Senators that Congress enact a law to permit the condemnation of lands of the New Mexico Pueblos for any purpose for which other lands in the State could be condemned. See S. Rep. 94-148, 94th Cong., 1st Sess. 4-5 (1975); H.R. Rep. 94-800, 94th Cong., 2d Sess. 6-7 (1976). Congress enacted the requested condemnation legislation in the Act of May 10, 1926, ch. 282, 44 Stat. 498. The legislative history of the 1926 Act shows that Congress believed it was necessary only because the Pueblo of Jemez had "persistently refused to make a contract." H.R. Rep. 955, 69th Cong., 1st Sess. 2 (1926). Although the committee report does not fully describe the underlying controversy, it seems reasonable to assume that Congress was apprised of the circumstances giving rise to the legislation, including the decision by respondent and the Pueblo of Zia to enter into a contract under Section 17 as well as the "persistent refusal" of the Pueblo of Jemez to enter into such a contract. Yet with the matter called to its attention, Congress did not amend the Pueblo Lands Act to bar conveyances by the Pueblos without congressional consent, but instead enacted legislation to facilitate the further acquisition of rights of way. Against this background, Congress must be taken to have accepted the premise that respondent and other Pueblos could convey a right of way with the Secretary's consent if they chose to do so. See Bob Jones University v. United States, No. 81-3 (May 24, 1983), slip op. 24-26; Haig v. Agee, 453 U.S. 280, 297-301 (1981). The Railway then brought a suit under the 1926 Act to acquire its right of way by condemnation. The district court concluded, however, that the United States was a necessary party and had not consented to be sued. H.R. Rep. 94-800, supra, at 7. To cure this new defect, Congress passed the Act of April 21, 1928 (45 Stat. 442, 25 U.S.C. 322 et seq.), which made applicable to the Pueblos the statutes governing the acquisition of rights of way across Indian lands generally. Under those Acts, the Secretary could approve a right of way on Indian lands even if the tribe did not consent. Once again, then, Congress acted in 1928 to remove an obstacle to the acquisition of a right of way that arose only because the Pueblo of Jemez, unlike respondent, had refused to enter into an agreement with the Railway under Section 17 of the Pueblo Lands Act. Even if Section 17 as originally enacted was somewhat ambiguous, these administrative and legislative developments soon after the Pueblo Lands Act was passed /17/ provide firm support for the longstanding administrative construction of the second clause of Section 17 that permits a Pueblo to convey a right of way with the approval of the Secretary. /18/ c. Nor is this settled interpretation of Section 17 unfair in the context of rights of way. At the time respondent conveyed the right of way at issue in this case, all other Indian tribes in the United States were subject to the general statutes under which the Secretary of the Interior was authorized to grant rights of way for railroad, telephone and telegraph lines across Indian lands even without the Indians' consent. Since the second clause of Section 17 addresses the subject of conveyances made by a Pueblo with its consent, respondent thus was in a preferred status vis-a-vis other tribes when it granted the right of way at issue in this case. Moreover, only eight days after the Assistant Secretary approved that right of way, Congress extended the general right-of-way statutes to Pueblo Lands. After that date, not even the consent of the Pueblo -- much less that of Congress -- would have been required in order for petitioner to obtain a valid right of way. /19/ However, we limit our submission to grants of rights of way. We do so because the administrative reliance on Section 17 to permit the Secretary to approve conveyances was limited almost exclusively to rights of way (J.A. 113-114); the congressional acquiescence in that administrative interpretation of Section 17 also was in the context of rights of way; this construction is consistent with the general pattern of legislation permitting the Secretary to grant rights of way over Indian lands in order to meet the Nation's transportation and communication requirements; and the granting of a right of way, unlike the conveyance of a fee interest in parcels of land, would not ordinarily raise the spectre of dissolution of the Pueblo's land base. On the other hand, we do not believe that Section 17 should necessarily be interpreted to allow a Pueblo to make other conveyances of its land, subject only to the approval of the Secretary, where there is not a comparable history of administrative interpretation and congressional acquiescence. We note in this regard that after the Pueblo Lands Act was passed, the Court made clear in United States v. Candelaria, 271 U.S. 432, 441-442 (1926), that, contrary to its prior decision in Joseph, the inhabitants of an Indian Pueblo constitute a "tribe of Indians" within the meaning of Section 12 of the Trade and Intercourse Act of 1834, as extended to New Mexico by the Act of February 27, 1851. See also United States v. Chavez, 290 U.S. 357, 363-364 (1933). /20/ B. THIS SUIT IS NOT BARRED BY RES JUDICATA Petitioner also argues (Pet. Br. 39-47) that respondent's suit is barred by the doctrine of res judicata by virtue of the district court's order in 1928 dismissing petitioner as a defendant in the quiet title suit brought by the United States on behalf of respondent. For the reasons explained above (see page 10, supra), we urge the Court to decide this case on the merits, and not on the narrow issue of the application of the doctrine of res judicata in the circumstances of this case. /21/ If the court nevertheless believes it would be appropriate to address the res judicata issue, we agree with the court of appeals (J.A. 105-107) that this suit is not barred. Petitioner had not even answered the complaint in United States v. Brown, supra, when the court granted the government's motion to dismiss as to petitioner. The proceedings therefore had not progressed to a point where the order of dismissal should be construed as an actual adjudication by the court of the merits of the dispute (including the distinct question of the validity of the agreement under Section 17) simply because the order did not expressly state that the dismissal was granted without prejudice. In contrast, in Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 109-110 (1868), and Lyon v. Perin & Gaff Mfg. Co., 125 U.S. 698, 702 (1888), relied upon by petitioner (Pet. Br. 41-42 & n.32), the record or pleadings indicated that there had been an actual adjudication on the merits in the prior proceeding. Accord, United States v. Parker, 120 U.S. 89, 91, 93, 95-97 (1887) (discussed at Pet. Br. 42-44 /22/ ); Baker v. Cummings, 181 U.S. 117, 125 (1901). Moreover, in this case, the Pueblo Lands Act itself prescribes the circumstances in which the judgment in a quiet title suit brought by the United States extinguishes the interests of the United States and the Pueblo and thereby effectively bars a subsequent suit. Section 5 provides that a successful plea of limitations shall entitle the claimants so pleading to a decreee in their favor, "which shall have the effect of a deed of quitclaim as against the United States and said Indians, and a decree in favor of claimants upon any other ground shall have a like effect." The district court's order dismissing the suit in United States v. Brown, supra, as against petitioner was not an affirmative "decree in favor of" petitioner. It therefore did not, under Section 5 of the Act, conclusively determine that petitioner had a valid right of way. We may assume that petitioner could have obtained a decree in its favor in the quiet title suit based on the conveyance approved by the Secretary under Section 17 of the Act, since such a decree was entered in favor of the defendants in the quiet title suits brought by the United States on behalf of the Pueblos of Acoma and Laguna. See page 23, supra. But petitioner did not seek such a decree or request that the United States' suit be dismissed with prejudice. In these circumstances, we do not believe that the order of dismissal should be given res judicata effect, so as to preclude a later suit challenging the validity of the agreement that prompted the United States to move for dismissal. This conclusion is further supported by reference to the principal purpose of a quiet title suit under the Pueblo Lands Act, which was to resolve competing claims to Pueblo lands that arose prior to passage of the Pueblo Lands Act (Sections 2, 3, 4(a) and (b) ), not to adjudicate the validity of a conveyance, such as that at issue here, that was made after the Act was passed. Cf. Cramer v. United States, 261 U.S. 219, 230-232, 233-234 (1923). In the instant case, petitioner was named as a defendant in the quiet title suit under Section 3 of the Act because it had a pre-existing line on respondent's land and might have claimed an adverse interest arising out of the presence of that line. However, any pre-existing claim was rendered moot by respondent's conveyance of a right of way that was approved under Section 17 of the Pueblo Lands Act. To be sure, these events that rendered the controversy moot in turn prompted the United States to move to dismiss its suit against petitioner and prompted the court to grant that motion. But it was not necessary, in order for the Attorney General and the district court to fulfill their respective responsibilities under the Pueblo Lands Act, for the Attorney General to submit the question of the validity of that post-Act conveyance to the court or for the court to decide that question. We therefore should not lightly assume that they intended to do so. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General F. HENRY HABICHT II Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General EDWIN S. KNEEDLER Assistant to the Solicitor General ROBERT L. KLARQUIST Attorney DECEMBER 1984 /1/ Under Section 4(a) of the Act, the Pueblo's title to a particular parcel was to be extinguished if the non-Indian or his predecessor in interest was in notorious possession of the land, under color of title, from January 6, 1902 until the date of enactment of the Pueblo Lands Act in 1924 and paid taxes on the land during that period to the extent required by the statute of limitation or adverse possession of the Territory or State of New Mexico. The chosen date was 10 years prior to the date of the President's proclamation of New Mexico's admission to the Union on January 6, 1912. See 37 Stat. 1723. Under Section 4(b) of the 1924 Act, title also was to be extinguished if the non-Indian or his predecessor in interest had open and notorious adverse possession of the land, but without color of title, from March 16, 1889 to the date of enactment and had paid taxes during that period. 43 Stat. 637. /2/ The time within which a Pueblo could file a suit on its own behalf was extended by Section 6 of the Act of May 31, 1933, ch. 45, 48 Stat. 111, to one year following the date of enactment of the 1933 Act. Section 2 of the 1933 Act authorized payments to the Pueblos in addition to those awarded by the Pueblo Lands Board. The extra sums were provided because some Pueblos were dissatisfied with the Board's awards and threatened to maintain their own suits. See S. Rep. 73, 73d Cong., 1st Sess. (1933). /3/ The Report of the Pueblo Lands Board pertaining to respondent's lands, which was filed on July 19, 1927, specifically mentioned petitioner's telephone line as well as several other such lines. For example, after reciting various private claims to the Pueblo's land (Report at 17-35), the Report stated that the lands to which Indian title had not been extinguished were burdened by the claim of the Santa Fe Northwestern Railway; the Report then explained that a deed granting an easement or right of way to the Railway for a consideration of $200 had been executed on March 22, 1926 by respondent and had been approved by the Assistant Secretary of the Interior on April 28, 1926 "pursuant to the provisions of the Act of June 7, 1924 (the Pueblo Lands Act)" (Report at 37-38). The Board further found in its Report (at 38) that the lands to which respondent held unextinguished title also were burdened with the existence of four other lines, including that of petitioner. /4/ See, e.g., the Act of May 10, 1926, ch. 282, 44 Stat. 498, authorizing the condemnation of Pueblo lands for any purpose permitted under state law. See pages 24-25, infra. /5/ Although Congress chose in Section 4 of the Pueblo Lands Act to give effect to the New Mexico law of adverse possession that reasonably might have been thought to apply to Pueblo lands in light of this Court's decision in Joseph and the Territorial Supreme Court's decision in Pueblo of Nambe v. Romero (see page 2 supra), Congress presumably wanted to eliminate that problem in the future. The specific reference to the "laws of the State of New Mexico" obviously was intended to prevent such a recurrence. /6/ The Secretary was authorized by the Act of March 2, 1899, ch. 374, 30 Stat. 990, 25 U.S.C. 312 et seq., to grant railroads rights of way over Indian lands without the consent of the Indians. The Secretary had similar authority under Section 3 of the Act of March 3, 1901, ch. 832, 31 Stat. 1083, to grant rights of way for telephone lines. Congress made these right-of-way statutes applicable to the New Mexico Pueblos by the Act of April 21, 1928, ch. 400, 45 Stat. 442, 25 U.S.C. 322 et seq. See page 25, infra. /7/ This interpretation is supported by another aspect of the first clause as well. The extinguishment of Indian title under the Pueblo Lands Act itself, to which reference also is made in the first clause of Section 17, likewise was an involuntary relinquishment of title by the Pueblo by operation of law. Section 5 of the Act provides that a successful plea of limitations and adverse possession under Section 4 shall entitle the claimants so pleading to a decree in their favor, "which shall have the effect of a deed of quitclaim as against the United States and said Indians, and a decree in favor of claimants upon any other ground shall have a like effect." Similarly, under Section 13, the field notes and plats filed by the Secretary were to be "conclusive evidence" of the extinguishment of all right, title, and interest of the Pueblo to the land involved. The statement in the first clause of Section 17 that no interest in lands to which the Pueblo's title had not been found to have been extinguished in this manner shall "hereafter" be "acquired" or "initiated" under New Mexico law or otherwise except as provided by law thus further suggests the sort of involuntary relinquishments that were addressed by the Pueblo Lands Act. /8/ Under Section 16 of the Pueblo Lands Act (43 Stat. 641), if land adjudged in favor of the Pueblo was situated among lands adjudicated in favor of non-Indians, the Secretary, if he deemed it to be for the best interests of the Indians, could, with the consent of the Pueblo, order the sale of the land to the highest bidder for cash, in accordance with regulations adopted for that purpose. Since, under our construction, any sale by the Secretary with the Pueblo's consent under Section 16 might also have been made by the Pueblo itself with the Secretary's consent under the second clause of Section 17, it might be contended that the special procedures in Section 16 are rendered superfluous by our construction of Section 17. Concededly there is an overlap between the two sections, but we do not believe it undermines our interpretation, especially in light of subsequent events (see pages 20-26, infra). Section 16 was intended to address the special problem of the consolidation of Pueblo holdings in the period after the Pueblo Lands Board completed its work. Congress obviously intended the Secretary to take the initiative in these endeavors, and it included special protections for the Pueblos in that process, perhaps in part because the Pueblos owned the land in question in fee. Section 17 addressed the different and longer term concerns raised by conveyances by the Pueblos themselves, under circumstances that did not present the same need for a public sale under established regulations that often accompanies the sale of land by the government. In addition, the two sections originated at different times. A provision similar to Section 16 was contained in predecessor bills that did not contain the present Section 17. See S. Rep. 1175, 67th Cong., 4th Sess. 5 (1923); H.R. Rep. 1730, 67th Cong., 4th Sess. 3, 7 (1923). The addition of Section 17 at a later date to cover a broader range of circumstances therefore creates no anomaly. /9/ See Pueblo Indian Lands: Hearings on S. 3865 and S. 4223 Before a Subcomm. of the Senate Comm. on Public Lands and Surveys, 67th Cong., 4th Sess. 155 (1923): Senator LENROOT. I should like to have you consider whether it might not (be) advisable to provide that these lands may be sold or alienated with the consent of both the Pueblo and the Secretary of the Interior. Mr. WILSON. That is probably going to be quite desirable under some conditions. In fact we have at different times rather encouraged the idea that if they could make swaps and transfers they could get their lands into much better condition. In fact that was the policy at one time that we had with reference to it. Senator LENROOT. Mr. Commissioner, would there be any objection to that on the part of the Government? Commissioner BURKE. I do not think so. I think there should be authority so that where it was in the interest of the Indians, they might convey, but I would have it under strict supervision of the Department. /10/ Although the decision in Sandoval cast doubt on the holding in Joseph, it was not until this Court rendered its decision in Candelaria two years after the Pueblo Lands Act was passed that it was clear that the Trade and Intercourse Acts applied of their own force to the Pueblos. /11/ By the Act of March 3, 1871, ch. 120, Section 3, 16 Stat. 570, 25 U.S.C. 71, Congress barred the further making of treaties with Indian tribes. /12/ See, e.g., S. Rep. 492, 68th Cong., 1st Sess. 5 (1924). /13/ See Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 112 (1919). /14/ Both petitioner and respondent rely upon this letter, dated February 27, 1926, from Mr. Fraser to the Attorney General, as a reliable account of the events leading to the contemporaneous construction of Section 17. The account in the letter is corroborated by letters sent to Committees of Congress in 1975 by the Secretary of the Interior concerning a pending bill to repeal the special condemnation statute affecting Pueblo lands enacted in 1926. See S. Rep. 94-148, 94th Cong., 1st Sess. 4-6 (1975); H.R. Rep. 94-800, 94th Cong., 2d Sess. 6-7 (1976). /15/ The approval of respondent's conveyance of a right of way to the Santa Fe Northwestern Railway was formally recited in the report of the Pueblo Lands Board concerning respondent's land. See note 3, supra. The Board's reports were public documents and were required by the Pueblo Lands Act to be filed with the district court as well as the responsible Executive agencies. The administrative construction therefore was a matter of fomal public record. See also F. Cohen, Handbook of Federal Indian Law 104 & n.195, 327, 390, 395-396 (1942); The Legal Status of the Indian Pueblos of New Mexico and Arizona, 57 Interior Dec. 37, 49 (1939). /16/ Presumably because of this conveyance, the Santa Fe Northwestern was not named as a defendant in United States v. Brown, the quiet title action filed under Section 3 of the Pueblo Lands Act with regard to respondent's land (J.A. 17). /17/ The approval of grants of rights of way under Section 17 again was brought to Congress's attention in 1975 in connection with its consideration of a bill to repeal the special condemnation statute enacted in 1926. See H.R. Rep. 94-800, supra, at 2, 6-7; S. Rep. 94-148, supra, at 1-2, 5-6. Once again, in passing the legislation (Act of Sept. 17, 1976, Pub. L. No. 94-416, 90 Stat. 1275), Congress did not question the validity of the rights of way that previously had been approved under Section 17. /18/ This construction continued at least until 1976, when the Interior Department reported to Congress regarding the reliance on Section 17 for this purpose without questioning that construction. See note 17, supra. In 1982, the United States did file several suits on behalf of Indian Pueblos to set aside conveyances of rights of way that had been approved under Section 17. See Pet. App. 40a. However, those suits were filed only after the district court ruled in favor of respondent in this case, and we have been informed that they were filed principally to meet the then-impending deadline of December 31, 1982 for the United States to institute trespass damage actions on behalf of Indian tribes. See Pub. L. No. 96-217, Section 1, 94 Stat. 126, 28 U.S.C. 2415. In any event, those filings do not reflect the government's current interpretation of Section 17. /19/ If respondent believed that the consideration it received was inadequate or undue pressure was brought to bear on it to convey a right of way, it could have brought an action against the United States under the Indian Claims Commission Act of 1946, 25 U.S.C. (1976 ed.) 70 et seq. /20/ The Indian Reorganization Act of 1934 (IRA), 25 U.S.C. 461 et seq. also imposes restraints on the alienation of the lands of tribes subject to that Act (see 25 U.S.C. 463e, 464, 476 and 477), but preserves the authority for the granting of rights of way without further congressional approval (see 25 U.S.C. 323, 324, 326, 464(b)(4)). /21/ Ordinarily, the issue of res judicata is one to be resolved by a court at the outset, before reaching the merits. But in this case, the courts below rejected petitioner's plea of res judicata as well as its submission on the merits (compare United States v. Stauffer Chemical Co., No. 82-1448 (Jan. 10, 1984)), and in this Court petitioner presents the res judicata argument second, essentially as an alternative ground for reversal of the judgment below. In these circumstances, and because in our view the proper resolution of the case on the merits is clear, the interest of judicial economy and the policy of protecting parties from repetitious litigation do not, in our view, require a resolution of the res judicata issue. /22/ In addition, in Parker, the defendant moved to dismiss the suit on the basis of evidence showing that the account in controversy had been settled administratively, and the attorney for the government joined in that motion. The order of dismissal therefore was the functional equivalent of a consent judgment.