United States v. Abouselman

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS September 29, 2020

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA, on its
own behalf and on behalf of the Pueblos of
Jemez, Santa Ana, and ZIA,

Plaintiff - Appellant,

STATE OF NEW MEXICO, ex rel. State
Engineer; JEMEZ RIVER BASIN
WATER USERS COALITION,

Plaintiffs - Appellees,

and

PUEBLO OF SANTA ANA; PUEBLO OF
JEMEZ; PUEBLO OF ZIA,

Plaintiff Intervenors,

v. No. 18-2164

TOM ABOUSELMAN; DARWIN
HOURIGAN; BOARD OF EDUCATION
OF THE JEMEZ VALLEY PUBLIC
SCHOOL DISTRICT; KING BROTHERS;
NACIMIENTO COMMUNITY DITCH
ASSOCIATION; PUBLIC LANDS
COMMISSIONER,

Defendants.------------------------------

ALL PUEBLO COUNCIL OF
GOVERNORS; PUEBLO OF ACOMA;
PUEBLO OF ISLETA; PUEBLO OF
SANDIA; PUEBLO OF LAGUNA;
PUEBLO OF SAN FELIPE; PUEBLO OF
SANTO DOMINGO; PUEBLO OF ZUNI;
PUEBLO OF SANTA CLARA; PUEBLO
OF OHKAY OWINGEH; ASSOCIATION
OF COMMUNITY DITCHES OF RIO
SAN JOSE; TRI-STATE GENERATION
AND TRANSMISSION ASSOCIATION,
INC; EL RITO DITCH ASSOCIATION;
LA ASOCIACION DE LAS ACQUIAS
DEL RIO VALLECITOS, TUSAS Y OJO
CALIENTE; RIO CHAMA ACQUIA
ASSOCIATION; ASOCIACION DE
ACQUITAS NORTENAS DE RIO
ARRIBA; LA ACEQUIA DE LA
SIERRA; RIO QUEMADO, RIO
FRIJOLES, RIO EN MEDIO AND
SANTA CRUZ STEAM SYSTEMS
COMMUNITY DITCH ASSOCIATION,

Amici Curiae.

–––––––––––––––––––––––––––––––––––
No. 18-2167
STATE OF NEW MEXICO, ex rel. State
Engineer; JEMEZ RIVER BASIN
WATER USERS COALITION,

Plaintiffs - Appellees,

UNITED STATES OF AMERICA, on its
own behalf and on behalf of the Pueblos of
Jemez, Santa Ana, and ZIA,

Plaintiff,

PUEBLO OF JEMEZ; PUEBLO OF
SANTA ANA; PUEBLO OF ZIA,

Plaintiff Intervenors - Appellants,

v.

TOM ABOUSELMAN; DARWIN
HOURIGAN; BOARD OF EDUCATION

2
 OF THE JEMEZ VALLEY PUBLIC
SCHOOL DISTRICT; KING BROTHERS;
NACIMIENTO COMMUNITY DITCH
ASSOCIATION; PUBLIC LANDS
COMMISSIONER,

Defendants.

ALL PUEBLO COUNCIL OF
GOVERNORS; PUEBLO OF ACOMA;
PUEBLO OF ISLETA; PUEBLO OF
LAGUNA; PUEBLO OF OHKAY
OWINGEH; PUEBLO OF SAN FELIPE;
PUEBLO OF SANDIA; PUEBLO OF
SANTA CLARA; PUEBLO OF SANTO
DOMINGO; PUEBLO OF ZUNI;
ASSOCIATION OF COMMUNITY
DITCHES OF RIO SAN JOSE; TRI-
STATE GENERATION AND
TRANSMISSION ASSOCIATION, INC.;
EL RITO DITCH ASSOCIATION; LA
ASOCIACION DE LAS ACEQUIAS DEL
RIO VALLECITOS, TUSAS Y OJO
CALIENTE; RIO CHAMA ACEQUIA
ASSOCIATION; ASOCIACION DE
ACQQUIAS NORTENAS DE RIO
ARRIBA; LA ACEQUIA DE LA
SIERRA; RIO QUEMADO, RIO
FRIJOLES, RIO EN MEDIO AND
SANTA CRUZ STREAM SYSTEMS'
COMMUNITY DITCH ASSOCIATION,

Amici Curiae.
_________________________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 6:83-CV-01041-MV-JHR)
_________________________________

Mary Gabrielle Sprague, Attorney, Department of Justice (Jeffrey Bossert Clark,
Assistant Attorney General; Eric Grant, Deputy Assistant Attorney General; Elizabeth

3
Ann Peterson, Attorney; William B. Lazarus, Attorney; James B. Cooney, Attorney, with
her on briefs), Washington, D.C., for Plaintiff-Appellant United States of America.

Richard W. Hughes, Rothstein Donatelli LLP (Reed C. Bienvenu, Rothstein Donatelli
LLP; David R. Yepa, VanAmberg, Rogers, Yepa, Abeita & Gomez, LLP, Albuquerque,
N.M.; Joseph D. Little, Zia Pueblo, N.M., with him on briefs), Santa Fe, N.M. for
Plaintiffs Intervenors-Appellants Pueblo of Jemez, Pueblo of Santa Ana, and Pueblo of
Zia.

Arianne Singer, Special Assistant Attorney General, Office of the State Engineer
(Gregory C. Ridgley, Special Assistant Attorney General, Office of the State Engineer;
Brett J. Olsen, Special Assistant Attorney General, Abramowitz, Frank & Olsen, LLC,
Albuquerque, N.M., with her on brief), Santa Fe, N.M., for Plaintiff-Appellee the State of
New Mexico.

Larry C. White (John W. Utton, Utton & Kery, PA, with him on brief), Santa Fe, N.M.
for Plaintiff-Appellee Jemez River Basin Water Users Coalition.

Reid Peyton Chambers and Vanessa Ray Hodge, Sonosky, Chambers, Sachse, Mielke
and Brownell, L.L.P., Albuquerque, N.M.; Ann Berkley Rodgers and Peter C. Chestnut,
Chestnut Law Offices, P.A., Albuquerque, N.M.; Susan G. Jordan, Jordan Law Firm
L.L.C., Santa Fe, N.M.; Jane Marx, Albuquerque, N.M.; Jessica R. Aberly, Aberly Law
Firm, Albuquerque, N.M.; and Scott W. Williams, Curtis G. Berkey, and Aviva L.
Simon, Berkey Williams LLP, Berkeley, CA, filed an amicus curiae brief for All Pueblo
Council of Governors; Pueblo of Acoma; Pueblo of Isleta; Pueblo of Sandia; Pueblo of
Laguna; Pueblo of San Felipe; Pueblo of Santo Domingo; Pueblo of Zuni; Pueblo of
Santa Clara; and Pueblo of Ohkay Owingeh on behalf of Plaintiff-Appellant and
Plaintiffs Intervenors-Appellants.

Mary E. Humphrey and Connie Odé, Humphrey & Odé, P.C., El Prado, N.M.; Seth
Fullerton, Katz, Herdman, MacGillivray & Fullerton, PC, Santa Fe, N.M.; and Adán E.
Trujillo, Chimayó, N.M. filed an amicus curiae brief for El Rito Ditch Association; La
Asociación de Las Acequias del Rio Vallecitos; Tusas y Ojo Caliente; Rio Chama
Acequia Association; Asociación de Acequias Norteñas de Rio Arriba; La Acequia de la
Sierra; and Rio Quemado, Rio Frijoles, Rio En Medio and Santa Cruz Steam Systems’
Community Ditch Association on behalf of Plaintiffs-Appellees.

Sunny J, Nixon and Shannon M. Sherrell, Rodey, Dickason, Sloan, Akin & Robb, P.A.,
Santa Fe, N.M., and Rebecca Dempsey, Cuddy & McCarthy, LLP, Santa Fe, N.M., filed
an amicus curiae brief for Tri-State Generation and Transmission Association, Inc. and
Association of Community Ditches of the Rio San José on behalf of Plaintiffs-Appellees.

4
 _________________________________

Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.
_________________________________

EBEL, Circuit Judge.
_________________________________

The Pueblos of Jemez, Santa Ana, and Zia have resided along the Jemez River

in northern New Mexico since time immemorial; they resided there as their lands

passed from Spanish sovereignty, to Mexican sovereignty, and finally to the United

States. Almost forty years ago, the United States initiated a water-rights adjudication

for the Jemez River Basin, claiming water rights on behalf of the Pueblos. Before us

today is an interlocutory appeal addressing a discrete purely legal issue from that

ongoing, decades-long litigation: “[W]hether the Pueblos’ aboriginal water rights

were extinguished by the imposition of Spanish authority without any affirmative

act.” (App’x 276.)

Exercising our jurisdiction under 28 U.S.C. § 1292(b), we hold that a

sovereign must affirmatively act to extinguish aboriginal water rights. Therefore, we

REVERSE the district court’s determination below and REMAND the case for

further proceedings consistent with this opinion.

I. PROCEDURAL HISTORY

These are consolidated interlocutory appeals from a district court order

determining a single issue within a thirty-seven-year-old case. The appellants are the

Pueblos of Jemez, Santa Ana, and Zia (“the Pueblos”), as well as the United States,

5
on its own behalf and on behalf of the Pueblos (collectively “Appellants”).1 The

appellees are the Jemez River Basin Water Users’ Coalition (“the Coalition”) and the

State of New Mexico (collectively “Appellees”).

This case originated in federal district court in 1983 as an action to allocate

water rights in the Jemez River in New Mexico. This litigation presents a myriad of

issues, most of which have not yet been resolved by the district court as they are

being litigated in stages. For the first stage, each side engaged their own expert on

Spanish law, both of whom drafted reports and testified at a three-day evidentiary

hearing in front of the magistrate judge. The magistrate judge made proposed

findings of fact and issued a recommended disposition, which the district court

adopted. The court found that the Pueblos had aboriginal water rights; however, it

went on to conclude that the Pueblos’ aboriginal water rights were extinguished by

Spain’s assertion of sovereignty over the region in the 1500s. Because this was a

critical ruling that would dispose of many of the remaining issues in this case, the

parties requested and the district court agreed to certify that discrete issue to us for

interlocutory appeal.

II. JURISDICTION

The United States and the Pueblos followed the proper procedure to invoke

this court’s jurisdiction under 28 U.S.C. § 1292(b), which permits interlocutory

1
The United States and the Pueblos separately petitioned this court for review;
both petitions were granted, and the cases were consolidated into one. The case
below is currently stayed pending the outcome of this appeal.
6
review of an otherwise unappealable order “[w]hen a district judge . . . [is] of the

opinion that such order involves a controlling question of law as to which there is

substantial ground for difference of opinion and that an immediate appeal from the

order may materially advance the ultimate termination of the litigation.”

A. Certified Question

“Interlocutory appeals originate from the district court’s order itself, not the

specific question certified by the district court or the specific question framed by the

appellant. An appellate court can and should address a different legal question if it

controls the disposition of the certified order.” Paper, Allied-Indus., Chem. &

Energy Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d 1285, 1291 (10th Cir.

2005) (internal citation omitted); see Yamaha Motor Corp., U.S.A. v. Calhoun, 516

U.S. 199, 205 (1996) (explaining that “the appellate court may address any issue

fairly included within the certified order because it is the order that is appealable”

(quotations omitted)). However, “[t]he court of appeals may not reach beyond the

certified order to address other orders made in the case.” Yamaha Motor Corp., 516

U.S. at 205. Thus, “the correct test for determining if an issue is appropriate for

interlocutory review is (1) whether that issue was raised in the certified order; and

(2) whether the issue can control the disposition of the order.” Paper, Allied-Indus.,

Chem. & Energy Workers, 428 F.3d at 1291.

This case has a long procedural history, and as the arguments raised on appeal

indicate, there are still many open issues. Almost none of these issues, however, are

7
appropriate for our interlocutory review. To determine which issues are

appropriately before us, we must look to the certified order.

This litigation is proceeding piecemeal. When settlement negotiations fell

through in 2012 and trial preparation actively began, the parties and the court agreed

that there were five threshold legal issues that needed to be decided before the parties

could properly prepare for trial. Thus, the litigation continued with the five issues

being briefed, argued, and decided in stages.

This appeal arises from the first stage, in which the parties briefed and argued

the first issue (which included three sub-issues), and the second issue.2 However, the

district court’s order decided only the first issue:

Have the Pueblos ever possessed aboriginal water rights in connection with
their grant or trust lands, and if so, have those aboriginal water rights been
modified or extinguished in any way by any actions of Spain, Mexico or the
United States?
The district court, adopting the magistrate judge’s findings and

recommendations, determined that the Pueblos did, at one point, possess aboriginal

water rights to the Jemez River in connection with their aboriginal title. No party

disputes this determination.

2
The remaining threshold issues, which the parties have not fully briefed or
argued to the district court, and which accordingly we do not decide, are (1) if the
Pueblos have aboriginal water rights or Winans reserved water rights, what standards
apply to quantify such rights; (2) do the Pueblos have Winters reserved rights
appurtenant to their trust lands and, if so, how are those rights to be measured; and
(3) are the Pueblos entitled to any riparian rights.
8
 After finding that the Pueblos had established aboriginal water rights, the

district court then determined that, during the time of Spanish sovereignty, the

Spanish crown extinguished those rights, stating:

Although Spain allowed the Pueblos to continue their use of water, and did
not take any affirmative act to decrease the amount of water the Pueblos were
using, the circumstances cited by the expert for the United States and Pueblos
plainly and unambiguously indicate Spain’s intent to extinguish the Pueblos’
right to increase their use of public waters without restriction and that Spain
exercised complete dominion over the determination of the right to use public
waters adverse to the Pueblos’ pre-Spanish aboriginal right to use water.
(App’x 287.)

In doing so, the district court deemed the first issue’s three sub-issues were

mooted by its ruling that Spain had extinguished the Pueblos’ water rights.3 Along

the same lines, the second issue asks whether the Winans doctrine is applicable.4

United States v. Winans, 198 U.S. 371, 381 (1905) (recognizing aboriginal rights

reserved to the tribe and not granted in a treaty). Because Winans rights are

essentially recognized aboriginal rights, the second issue was resolved by the court’s

finding that the Pueblos’ aboriginal rights had been extinguished by Spain. Thus,

because neither the resolutions of the sub-issues nor the resolution of the second

3
The three sub-issues are (1) did the Acts of 1866, 1870 and 1877 have any
effect on the Pueblos’ water rights and, if so, what effect; (2) did the Pueblo Lands Acts
of 1924 and 1933 have any effect on the Pueblos’ water rights and, if so, what effect; and
(3) did the Indian Claims Commission Act have any effect on the Pueblos’ water rights
and, if so, what effect.
4
Issue No. 2: Does the Winans doctrine apply to any of the Pueblos’ grant or
trust lands?
9
issue could control the disposition of the district court’s order, none of these issues is

appropriate for interlocutory review.

In finding that Spain extinguished the Pueblos’ aboriginal water rights, the

district court’s certified order explicitly found that “Spain allowed the Pueblos to

continue their use of water, and did not take any affirmative act to decrease the

amount of water the Pueblos were using.” (App’x 287 (emphasis added).). Because

our jurisdiction is controlled by the certified order presented to us, see Yamaha

Motor Corp., 516 U.S. at 205, we accept this conclusion by the district court for

purposes of our analysis.

When certifying this ruling for our review, the district court again noted that

“[t]he issue of whether the Pueblos’ aboriginal water rights were extinguished by the

imposition of Spanish authority without any affirmative act was raised in the Court’s

Order.” (App’x 276 (emphasis added).) Moreover, both of the Appellants’ petitions

for permission to appeal framed the issue as extinguishment of aboriginal water

rights without affirmative action. Although we look to the district court’s certified

order, and “not the specific question certified by the district court or the specific

question framed by the appellant,” Paper, Allied-Indus., Chem. & Energy Workers,

428 F.3d at 1291, our task is made easier here because the same question is presented

by all of them.

Thus, the controlling question of law in this appeal is whether aboriginal water

rights can be extinguished by the imposition of sovereign authority without any

affirmative act.

10
 B. Issues Not Properly Before This Court

In light of this litigation’s long and fragmented history, and the arguments

made in this appeal, we find it prudent explicitly to mention a few specific issues that

are not before us.

First, the quantification of the Pueblos’ water rights is not before us. While

this is an important question in the overall litigation, the current quantification of any

remaining aboriginal water rights was not raised in the district court’s certified order

and could in no way control its disposition because the order found that there were no

existing aboriginal water rights. Moreover, the proper standard for quantifying any

such rights is the subject of the third of the district court’s five stated issues, which

have not been brought before us by this interlocutory appeal. While this question

may be before us one day, today is not that day.

Second, and relatedly, there are many types of water rights; here, we consider

only aboriginal rights. The Pueblos may claim other types of water rights in this

litigation, but those were not before the court below in this limited proceeding, and

they are not before us either.

Third, no actions taken by Mexico or the United States are before us.

Although those actions were before the district court, the district court determined

that the Pueblos’ aboriginal water rights were extinguished by Spain before either

Mexico or the United States took sovereignty over the Pueblos’ land. Thus, as

11
explained above, any actions taken by Mexico or the United States were mooted by

that determination.

None of the above-mentioned issues was raised by the certified order, and thus

they are not properly before us for consideration on interlocutory review. In sum, we

have jurisdiction to address only the controlling question of law presented by the

order below: Whether, as a matter of law, a sovereign can extinguish aboriginal

rights to water by the mere imposition of its authority over such water without any

affirmative act.

III. STANDARD OF REVIEW

When faced with a question of law, our review is de novo; when faced with a

question of fact, our review is for clear error. Highmark Inc. v. Allcare Health

Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014). However, “[o]ur review of mixed

questions of law and fact will be ‘under the clearly erroneous or de novo standard,

depending on whether the mixed question involves primarily a factual inquiry or the

consideration of legal principles.’” Roberts v. Printup, 595 F.3d 1181, 1186 (10th

Cir. 2010) (quoting Estate of Holl v. Comm’r, 54 F.3d 648, 650 (10th Cir.1995)).

“Where a mixed question primarily involves the consideration of legal principles,

then a de novo review by the appellate court is appropriate.” Osage Nation v. Irby,

597 F.3d 1117, 1122 (10th Cir. 2010).

The question of whether Spain extinguished the Pueblos’ aboriginal water

rights is ordinarily a mixed question of fact and law, as it requires the application of

12
facts to the legal standard for extinguishment.5 Here, however, the district court

determined that Spain extinguished the Pueblos’ aboriginal water rights by the

imposition of Spanish law. Thus, the issue here is the extent and impact of Spanish

law. A court’s determination about foreign law “must be treated as a ruling on a

question of law,” rather than as a ruling on a question of fact. Fed. R. Civ. P. 44.1;

see Grimm v. Comm’r, 894 F.2d 1165, 1166 (10th Cir. 1990) (applying de novo

review to the lower court’s interpretation of Philippine law). As such, the district

court’s determination that the imposition of Spanish law extinguished the Pueblos’

aboriginal water rights is reviewed de novo.

IV. BACKGROUND

Before turning to the discrete question before us, we provide an overview of

both Spanish sovereignty in the 1500s and aboriginal title.

5
Whether the Pueblos established aboriginal rights is a question of fact.
United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 345 (1941) (“Occupancy
necessary to establish aboriginal possession is a question of fact to be determined as
any other question of fact.”). As such, we will only set aside the district court’s
finding if it is clearly erroneous. Ornelas v. United States, 517 U.S. 690, 694 n.3
(1996). Because no party challenges the district court’s finding—and because this
finding is supported by the record—this finding is not clearly erroneous, and we
move forward with our review accepting that the Pueblos possessed aboriginal water
rights.
13
 A. Spanish Sovereignty and the Pueblos6

Spain arrived in the Jemez River Basin in 1598, bringing with it its concept of

regalía, the royal prerogative. This was “the political theory of the colonial period

. . . that held that the crown exercised supreme power over the administration,

licensing, and adjudication of certain spheres of activity and kinds of resources.”

(App’x 382.) The natural resources that fell within the Spanish crown’s regalía

“included lands, fields, woodlands, pasturage, rivers, and public waters,” which were

known as “realengas.” (Id.) As to the realengas, the crown could “grant, with

whatever limitation it might deem to be convenient, private or communal domain to

individuals, towns and villages.” (Id. 383.) “It bears noting, too, that while the

crown insisted in principle on the right of regalía to intervene judicially to allocate

water, it did not always do so, especially when there existed no conflict that required

adjudication.” (Id.) The crown bestowed its prerogative to local authorities “to

oversee the distribution of unused or unoccupied lands and other resources in the

New World.” (Id.) The direction given to local authorities in the distribution of the

realengas “typically called for Indian property and resources to be respected.” (Id.)

The Spanish protection of Indian rights can be traced all the way back to the

codicil of Queen Isabella’s will, drafted in 1504, “in which she admonishes her

husband and soon-to-be heirs . . . to make sure that they protect the Indians and their

6
We, like the court below, reviewed both experts’ reports and testimony as to
the legal principles in place during the time of Spanish sovereignty. Also like the
court below, we “assume that the US/Pueblos’ expert, Dr. Cutter, is correct and have
resolved all factual questions in favor of Dr. Cutter’s opinion.” (App’x 298.)
14
persons and their possessions.” (Id. 609.) Spain also issued a number of informal

and formal laws, which were combined to create the Recopilación de Indias, “a

compilation of laws issued by the crown and laws viewed broadly; Royal cedulas,

letters, instructions, so on and so forth,” and applied to the Spanish colonies. (Id.

610.) A number of laws within the Recopilación de Indias address the distribution or

combining of lands, and it is repeatedly stated that, in undertaking these actions,

Indians should be left their land and any resources that they may need. (Id. 372.)

Hence, the Spanish crown was protective of Indian property rights.

When Spain arrived in what is now Mexico, and throughout the years of

Spanish sovereignty in the region, “the Spaniards continued to consider Indians as

original owners of their property, as well as to recognize their native government.”

(Id.; id. 380 (“[T]here is no documentary evidence that Spanish magistrates forced

Pueblos to allot lands and water within their communities in a particular way.”)). In

sum, there was “a special, sometimes preferential, status for Indians under Spanish

rule.” (Id. 388 (quoting William Taylor, Land and Water Rights in the Viceroyalty of

New Spain, 50 N.M. Hist. Rev. 189, 191 (1975).)

It was within Spain’s regalía, “that is the prerogative of the crown, to ensure

effective use of water. That didn’t mean that it always exercised its prerogative, but

it did have that prerogative.” (Id. 617.) There were two main principles guiding

Spain’s control of water. First, public waters were held in common and shared by

everyone. (Id. 631.) Second, “one could not use public waters to the detriment of

other users.” (Id. 632.) Spain ensured the effective use of water in a number of

15
ways, including a process called a “repartimiento7 de aguas,” similar in concept to the

water adjudication underlying this appeal. (Id. 329.) “The repartimiento de aguas

might take several forms, and it occurred only when there was more than one user of

a source of water.” (Id.) Without conflict, a formal repartimiento would not take

place; “[s]uch was the situation in the Jemez Valley watershed with respect to the

Pueblos of Jemez, Zia, and Santa Ana.” (Id.)

When a repartimiento was undertaken, a government official would apply six

factors to each party claiming water—(1) prior use, (2) need, (3) purpose of use,

(4) legal rights, (5) injury to third parties, and (6) equity and the common good—and

then allocate the water accordingly. (Id. 636.) While twenty-two repartimientos

were undertaken in central Mexico, there was only one known repartimiento in New

Mexico, which took place in Taos in 1823, during the time of Mexican sovereignty.

(Id. 617.) “No repartimientos of water were ever made by Spanish or Mexican

authorities regarding the Jemez Valley waters used by Jemez, Zia, and Santa Ana.

Thus, the governments of Spain and Mexico took no action to intervene in the uses

that these Pueblos made of their water supply; nor did Spain or Mexico act to reduce

or modify such use.” (Id. 395.)

B. Aboriginal Title

Aboriginal title “refers to land claimed by a tribe by virtue of its possession

and exercise of sovereignty rather than by virtue of letters of patent or any formal

7
“Repartimiento” translates to “distribution.”
16
conveyance.” 1 Cohen's Handbook of Federal Indian Law § 15.04 (2019).8 The

concept of aboriginal title, sometimes called “Indian title” or “native title,” comes

from a recognition that the property rights of indigenous people persist even after

another sovereign assumes authority over the land. See Uintah Ute Indians of Utah

v. United States, 28 Fed. Cl. 768, 784 (1993). Aboriginal title was recognized by all

European sovereigns and the United States, and “is considered as sacred as the fee

simple of the whites.” Mitchel v. United States, 34 U.S. 711, 746 (1835); see

Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. 543, 574 (1823).

Whether a tribe had aboriginal title is a question of fact; a tribe must prove that

it had “actual, exclusive and continuous use and occupancy for a long time.” Uintah

Ute Indians of Utah, 28 Fed. Cl. at 784. Once established, however, aboriginal title

remains until it is extinguished, and “[a]s against any but the sovereign, original

Indian title was accorded the protection of complete ownership.” United States v.

Alcea Band of Tillamooks, 329 U.S. 40, 46 (1946).

The district court found that the Pueblos had established aboriginal rights. No

party challenges that finding on appeal, so we focus our analysis on whether those

rights were extinguished. See supra n.6.

Extinguishing aboriginal rights is complicated; aboriginal rights can only be

extinguished by the sovereign. See Oneida Indian Nation v. Cty. of Oneida (“Oneida

8
The Supreme Court frequently cites to Mr. Cohen’s work and has referred to
him as “an acknowledged expert in Indian law.” Squire v. Capoeman, 351 U.S. 1, 8–
9 (1956).
17
I”), 414 U.S. 661, 667 (1974). A sovereign can extinguish aboriginal title “by treaty,

by the sword, by purchase, by the exercise of complete dominion adverse to the right

of occupancy, or otherwise.” Santa Fe Pac. R.R. Co., 314 U.S. at 347. No matter the

method used, the sovereign’s intent to extinguish must be clear and unambiguous;

“an extinguishment cannot be lightly implied in view of the avowed solicitude of the

Federal Government for the welfare of its Indian wards.” Id. at 354.

Moreover, “if there is doubt whether aboriginal title has been validly

extinguished by the United States, any ‘doubtful expressions, instead of being

resolved in favor of the United States, are to be resolved in favor of’ the Indians.”

Pueblo of Jemez v. United States, 790 F.3d 1143, 1162 (quoting Santa Fe Pac. R.R.

Co., 314 U.S. at 354). “[T]he actual act (or acts) of extinguishment must be plain

and unambiguous. In the absence of a clear and plain indication in the public records

that the sovereign intended to extinguish all of the rights in their property, Indian title

continues.” Lipan Apache Tribe v. United States, 180 Ct. Cl. 487, 492 (1967)

(quotations and alteration omitted) (quoting Santa Fe Pac. R.R. Co., 314 U.S. at 353).

The leading case on extinguishment is United States v. Santa Fe Pacific

Railroad Co., 314 U.S. 339 (1941). There, the United States (as guardians for the

Walapai Tribe) brought suit to enjoin the Railroad from interfering with the

Walapais’ aboriginal title. The Railroad asserted that it had full title to the land,

unencumbered by the Walapais’ aboriginal title, pursuant to a land grant in an 1866

congressional act which stated that the “United States shall extinguish, as rapidly as

may be consistent with public policy and the welfare of the Indians, and only by their

18
voluntary cession, the Indian title to all lands falling under the operation of this act.”

Id. at 344. After determining that the grant to the Railroad did not itself extinguish

the Walapais’ title, the court addressed whether the Walapais’ title had been

extinguished prior to the 1866 grant. Before doing so, the court reiterated the United

States’ exclusive right to extinguish aboriginal title, “whether it be done by treaty, by

the sword, by purchase, by the exercise of complete dominion adverse to the right of

occupancy, or otherwise.” Id. at 347.

The court looked to a number of congressional acts to determine if those acts

extinguished the Walapais’ title. The court first looked to the Act of February 27,

1851, which extended the Indian Trade and Intercourse Act of June 30, 1834, to

cover the tribes in Arizona and New Mexico. Id. Because the 1851 Act “plainly

indicate[d] that in 1851 Congress desired to continue in these territories the

unquestioned general policy of the Federal government to recognize such right of

occupancy,” the court determined that it did not extinguish the Walapais’ title. Id. at

348. The court also looked to the two acts from 1854 and 1870, which established

the Surveyor General of New Mexico and directed him “to ascertain the origin,

nature, character, and extent of all claims to lands under the laws, usages, and

customs of Spain and Mexico[,] and to make a report on all such claims as originated

before the cession of the territory to the United States.” Id. at 349. Because only

Congress has the authority to extinguish title, however, the court determined that the

only extinguishment could have come from congressional action taken based on the

19
Surveyor General’s report. Id. at 350. Because the court was “not advised that

Congress took any such action,” the Walapais’ title was not extinguished. Id. at 351.

The court also looked to see if the creation of reservations or forcible removal

extinguished the Walapais’ title. In 1865, Congress established the Colorado River

reservation, and suggested that various tribes, the Walapais included, should settle

there. Id. at 351–52. After the Walapais refused this offer, they were forcibly

removed (without congressional mandate) to the reservation in 1874. Id. at 354.

They left it the following year and returned to their old country. Id. at 355. The

court concluded that “[n]o forfeiture can be predicated on an unauthorized attempt to

effect a forcible settlement on the reservation unless we are to be insensitive to the

high standards for fair dealing in light of which laws dealing with Indian rights have

long been read.” Id. at 355–56.

It was not until 1881, when the tribe requested that the government create a

reservation for them, that any of the Walapais’ aboriginal rights were extinguished.

A reservation was created, and “[t]here was an indication that the Indians were

satisfied with the proposed reservation. A few of them thereafter lived on the

reservation; many of them did not. While suggestions recurred for the creation of a

new and different reservation, this one was not abandoned.” Id. at 357 (footnotes

omitted). The court therefore concluded that the reservation’s “creation at the

request of the Walapais and its acceptance by them amounted to a relinquishment of

any tribal claims to lands which they might have had outside that reservation.” Id. at

357–58 (footnoted omitted).

20
 Santa Fe Pacific established that a sovereign can extinguish aboriginal title “by

treaty, by the sword, by purchase, by the exercise of complete dominion adverse to

the right of occupancy, or otherwise.” 314 U.S. at 347. However, in so establishing,

the court placed great emphasis on “the policy of the federal government from the

beginning to respect the Indian right of occupancy, which could only be interfered

with or determined by the United States.” Id. at 345 (quoting Cramer v. United

States, 261 U.S. 219, 227 (1923)). The court admonished, “it would take plain and

unambiguous action to deprive the Walapais of the benefits of that policy.” Id. at

346. For “an extinguishment cannot be lightly implied in view of the avowed

solicitude of the Federal Government for the welfare of its Indian wards.” Id.

V. DISCUSSION

The controlling question of law in this appeal is whether, as a matter of law, a

sovereign can extinguish aboriginal rights by the mere imposition of its authority and

without any affirmative adverse act. We hold that it cannot.

A. Extinguishing Aboriginal Rights Requires an Affirmative Act

Courts have addressed the extinguishment of aboriginal rights numerous times.

They have addressed extinguishment by treaty, see, e.g., Oregon Dep't of Fish &

Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 770 (1985) (analyzing an 1864 treaty

ceding land to the United States to determine whether hunting and fishing rights were

retained); extinguishment by purchase, see, e.g., Mitchel v. United States, 34 U.S.

711 (1835) (holding that a tribe’s aboriginal rights were extinguished when Spain

21
ratified the sale of tribal land by the tribe); and extinguishment by congressional act,

see, e.g., Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 524 (1998)

(explaining that the Alaska Native Claims Settlement Act “completely extinguished

all aboriginal claims to Alaska land”); see also United States v. Gemmill, 535 F.2d

1145, 1148–49 (9th Cir. 1976) (holding that “a series of federal actions subsequent to

1851”—which “has included expulsion by force, inconsistent use, and voluntary

payment of [a] compensation agreement”—“clearly demonstrates that the Pit River

Indian title has been extinguished”); Plamondon ex rel. Cowlitz Tribe of Indians v.

United States, 467 F.2d 935, 937 (Ct. Cl. 1972) (“We need not decide whether taken

singly, the change in congressional intent, the establishment of [a reservation which

included the Cowlitz], or the Presidential proclamation of March 20, 1863, would be

sufficient to extinguish Cowlitz title. We agree with the Commission that all three

together are clearly sufficient.”).

In all cases addressing extinguishment courts have pointed to specific

sovereign action that was directed to a right held by an Indian tribe. They have then

looked at the actual adverse impact of that directed action on the tribal right at issue.

Only when that review has shown a sovereign intent to extinguish an Indian right,

have courts found that an extinguishment was effectuated. An intent to extinguish

can only be found when there is an affirmative sovereign action focused at a specific

right that is held by an Indian tribe that was intended to, and did in fact, have a

sufficiently adverse impact on the right at issue. Plamondon ex rel. Cowlitz Tribe of

Indians, 467 F.2d at 938 (the court looked at the fact that Congress opened the

22
Cowlitz land for white settlement, but it concluded that the small number of

settlers—the actual adverse impact—was insufficient to extinguish). Thus, a

sovereign cannot extinguish aboriginal rights without affirmatively acting in a

manner adverse to the specific aboriginal rights at issue.

Santa Fe Pacific requires a sovereign to exercise complete dominion, not

merely to possess complete dominion. 314 U.S. at 347. As the Supreme Court

recognized, all conquering sovereigns possess complete dominion. See M’Intosh at

34 U.S. 574. However, to exercise something is not to merely possess it, but “to put

[it] into action.” Exercise, Black’s Law Dictionary (11th ed. 2019). Thus, to

“exercise” complete dominion, the sovereign must put its dominion into action,

through some sort of affirmative act.

Courts repeatedly refer to “acts” or “action” when discussing extinguishment.

See Alcea Band of Tillamooks, 329 U.S. at 46 (“As against any but the sovereign,

original Indian title was accorded the protection of complete ownership; but it was

vulnerable to affirmative action by the sovereign, which possessed exclusive power

to extinguish the right of occupancy at will. Termination of the right by sovereign

action was complete and left the land free and clear of Indian claims.” (emphasis

added)); Oneida Cty. v. Oneida Indian Nation of N.Y. State (“Oneida II”), 470 U.S.

226, 245 (1985) (noting that the Nonintercourse Act of 1793 “merely codified the

principle that a sovereign act was required to extinguish aboriginal title”); Oneida I,

414 U.S. at 667 (“That right, sometimes called Indian title and good against all but

the sovereign, could be terminated only by sovereign act.” (emphasis added)); Pueblo

23
of Jemez, 790 F.3d at 1158 (“[T]he grant does not impair aboriginal title, which the

grantee must respect until aboriginal title has been extinguished by treaty, agreement,

or other authorized actions of the Indians or Congress.” (emphasis added)); Gemmill,

535 F.2d at 1147 (“[W]hen the Government clearly intends to extinguish Indian title

the courts will not inquire into the means or propriety of the action . . . .” (emphasis

added)); id. at 1148 (“The relevant question is whether the governmental action was

intended to be a revocation of Indian occupancy rights . . . .” (emphasis added)).

Indeed, we could find no case that determined that aboriginal rights were

extinguished without pointing to a specific governmental act that terminated those

rights, be it a treaty, a statute, a congressional appropriation of funds, or a

presidential proclamation.

The need for an affirmative act is further underscored by the analysis dictated

by precedent, which requires courts to find a “clear and plain indication” that the

sovereign intended to extinguish aboriginal title. See Santa Fe Pac. R.R. Co., 314

U.S. at 353; see also United States v. Dion, 476 U.S. 734, 738–39 (1986) (“[A] clear

and plain intent must be demonstrated.”). Courts have determined that there was no

sovereign intent to extinguish aboriginal title adequately demonstrated even by the

following actions: when Congress specifically created a reservation for a particular

tribe, id. at 353–54; when Congress granted tribal land to a railroad, Buttz v. N. Pac.

R.R., 119 U.S. 55, 66 (1886); or when a treaty ceding tribal land did not explicitly

mention rights to hunt and fish, Mille Lacs Band of Chippewa Indians v. Minnesota,

124 F.3d 904, 926 (8th Cir. 1997), aff’d sub nom. Minnesota v. Mille Lacs Band of

24
Chippewa Indians, 526 U.S. 172 (1999). In those cases, the sovereign took

affirmative action specifically referencing the Indian tribes in question and, still, the

sovereign’s intent to extinguish was not “clear and plain.” Without an affirmative

adverse act, there is neither directed sovereign action nor consequences from that

action from which a court may find a clear and plain indication that the sovereign

intended to extinguish aboriginal title.

Determining adversity requires an inquiry into the governmental action and its

impact on the specific tribe. For example, in Cowlitz, the court explained that the

government had opened the Cowlitz land for white settlement, but it declined to find

that such action constituted extinguishment because the small number of settlements

that actually occurred “did not significantly disrupt the Cowlitz way of life.”

Plamondon ex rel. Cowlitz Tribe of Indians, 467 F.2d at 938. Thus, adversity was

determined not by the general fact that the land could be settled, but by looking at

what actually happened.

For the foregoing reasons, we conclude that a sovereign must affirmatively

take an action to exercise complete dominion in a manner adverse to the Indians’

right of occupancy sufficient to extinguish aboriginal title. See Santa Fe Pac. R.R.

Co., 314 U.S. at 347.

B. Spain’s General Administration of Its Water Administration System
Was Not Adverse to the Pueblos’ Aboriginal Rights.

There is no indication, let alone a clear and plain indication, that Spain

intended to extinguish any aboriginal rights of these three Pueblos. Spain’s general

25
assertion of governing authority does not indicate any intent to extinguish the

Pueblos’ water rights because, in general, Spain respected the Indians and their

possessions. See Felix S. Cohen, Spanish Origin of Indian Rights in the Law of the

United States, 31 Geo. L.J. 1, 9 (1942) (“[T]he humane principles which guide our

own law in Indian affairs all faithfully follow . . . the edicts of Spanish kings.”).

Even if we narrow our focus to Spain’s system for administering water, this

system was guided by general principles, none of which specifically mention any

Indian tribes, let alone the Pueblos of Jemez, Santa Ana, and Zia. Although Spain

possessed the right to conduct repartimientos to allocate water, it never exercised that

right as to the Pueblos here. There is no showing that Spain clearly intended to

extinguish the rights of these specific Pueblos, when nothing presented by the parties

indicates that Spain had any issues with the Pueblos’ water use. The passive

implementation of a generally applicable water administration system does not

establish Spain’s clear intent to extinguish the aboriginal water rights of these three

Pueblos.

Nor is there any evidence in the experts’ reports or testimony that Spain’s

water administration system was adverse to the Pueblos, as it never actually ended

the Pueblos’ exclusive use of water or limited their use in any way. A repartimiento

was never undertaken on the Jemez River, and there is no evidence that the Pueblos

ever decreased their water usage or were unable to increase their usage. Indeed, there

is no evidence that Spanish sovereignty had any impact on the Pueblos’ use of the

water from the Jemez River at all. Because Spain’s water administration system had

26
no impact, let alone a negative impact, on the Pueblos’ right to use water, it cannot be

said that the system was “adverse” to the Pueblos.

VI. CONCLUSION

All conquering sovereigns possess authority over their land and resources.

However, not until the sovereign exercises this authority through clear and adverse

affirmative action may it extinguish aboriginal rights. We therefore REVERSE the

district court’s order and REMAND the case to the district court for further

proceedings consistent with this opinion.

27
18-2164, 18-2167, United States v. Abouselman
TYMKOVICH, C.J., dissenting.

It is apparent to me that the resolution of this appeal is not likely to materially

advance the ultimate termination of this 37-year-old case, see 28 U.S.C § 1292(b), and

that this interlocutory appeal therefore should not have been granted. The question of

whether aboriginal water rights have been extinguished is an undeniably important aspect

of this case. But deciding that issue in a vacuum without also considering related issues

of quantification and the settled expectations of the many interested parties in this case, is

not the best way to achieve a just result. For these reasons, I respectfully dissent.

Appeals pursuant to §1292(b) should be sparingly granted. As we have observed,

“the enlargement of the right to appeal should be limited to extraordinary cases in which

extended and expensive proceedings probably can be avoided by immediate final

decisions of controlling questions encountered early in the action.” Utah State Dep't of

Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (quoting Tenth Circuit

committee report reprinted at 1958 U.S.C.C.A.N. 5255, 5262). This is not such a case.

This appeal will not avoid extended and extensive proceedings and it does not come early

in the case, but some 35 years after it was filed. Indeed, as Judge Ebel states in his

opinion, this litigation has a “long and fragmented history,” Maj. Op. at 11, which has not

been improved by the granting of this piecemeal appeal.

More to the point, this appeal addresses only two of five threshold issues that were

identified as necessary to resolve before the parties could even put together a discovery
plan.1 If an interlocutory appeal is permitted after the district court rules on each of the

remaining threshold issues, it will take the better part of a decade to even arrive at a point

where the parties can craft a plan for discovery. Going forward, this case will be much

better served by avoiding piecemeal appeals—particularly given how intertwined the

issues are, as further discussed below.

On the merits, the majority determines the Pueblos’ aboriginal water rights have

not been extinguished. But this cannot mean as a practical matter that the Pueblos now

have limitlessly expanding water rights. The Pueblos, while disclaiming an intention to

seek an expanding water right, nonetheless assert that “their aboriginal water rights

include an amount sufficient to satisfy their future needs.” Pueblos’ Reply Br. at 18

(emphasis added). This seems a matter of semantics, but in any case it is problematic to

T 1
The questions were as follows:
(1) Have the Pueblos ever possessed aboriginal water rights in connection with
their grant or trust lands, and if so, have those aboriginal water rights been
modified or extinguished in any way by any actions of Spain, Mexico, or the
United States?
Sub-issue: Did the Acts of 1866, 1870, and 1877 have any effect on the
Pueblos’ water rights and, if so, what effect?
Sub-issue: Did the Pueblo Lands Acts of 1924 and 1933 have any effect on
the Pueblos’ water rights and, if so, what effect?
Sub-issue: Did the Indian Claims Commission Act have any effect on the
Pueblos’ water rights and, if so, what effect?
(2) Does the Winans doctrine apply to any of the Pueblos’ grant or trust lands?
(3) If the Pueblos have aboriginal water rights or Winans reserved water rights,
what standards apply to quantify such rights?
(4) Do the Pueblos have Winters reserved rights appurtenant to their trust lands
and, if so, how are those rights to be measured?
(5) Are the Pueblos entitled to any riparian rights?
App. at 304.

2
decide whether the Pueblos have aboriginal water rights entitling them to an as-yet-

undefined right to expanding or future uses, without also considering the implications for

the many other water users on the Jemez, some of whose water rights date to Spanish

colonial rule (to say nothing of water users on the Rio Grande, on which other Pueblos

may claim a similar aboriginal right to expanding or future uses).

To be sure, the Pueblos disclaim any intention of seeking a limitless water right.

But even if their purported future water needs were limited to practicable irrigable

acreage, see Arizona v. California, 373 U.S. 546, 600–01 (1963), it is difficult to see how

their claimed entitlement to a quantity of water to satisfy their future homeland needs

would leave water for any other water rights holders on the Jemez.2 The majority’s

conclusion here may have serious implications for all other users of the Jemez River and,

by implication, other river systems in the Southwest—unless the district court takes into

account at least several important considerations.

First, on remand the district court may wish to consider whether, although the

imposition of Spanish law did not extinguish the Pueblos’ aboriginal water rights, it

nonetheless placed certain limits on those rights by virtue of the arrival of non-Pueblo

water users on the Jemez River. The competing experts in this case agreed that once non-

T 2
The Pueblos’ claim to expanding or future needs seems inconsistent with the
doctrine of aboriginal rights. Even assuming for purposes of argument that the doctrine
applies as fully to water as it does to land, it requires the Pueblos to show actual,
exclusive and continuous use and occupancy for a long period of time. Pueblo of Jemez
v. United States, 790 F.3d 1143, 1165 (10th Cir. 2015); United States v. Pueblo of San
Ildefonso, 513 F.2d 1383, 1394 (Ct. Cl. 1975).

3
Pueblo water users were allowed on the Jemez River, it was considered by the Spanish

crown to be a shared public resource. On behalf of the government and the Pueblos, Dr.

Cutter testified that under Spanish and Mexican law, surface interests of land were treated

as separate from interests in common public water sources. Professor Hall, testifying on

behalf of New Mexico and the non-Pueblo water users, agreed. Treating fee title to land

separately from the right to water is consistent with the doctrine of prior appropriation,

which focuses not on land ownership but on the application of water to beneficial uses.

See, e.g., Colorado v. New Mexico, 459 U.S. at 179 n.4 (water rights “do not depend on

land ownership and are acquired and maintained by actual use”). Even the Treaty of

Guadalupe Hidalgo recognized that the Pueblos’ right to water was limited to that which

was actually used.3 See New Mexico ex rel. Martinez v. City of Las Vegas, 89 P.3d 47, 60

(N.M. 2004) (rejecting the argument that the Treaty of Guadalupe-Hidalgo provided an

expanding Pueblo water right).

Second, Arizona v. California is instructive. In that case, the Supreme Court held

five tribes were entitled to a priority date back to the establishment of their respective

reservations. But the water right was based on the size of each reservation and productive

agricultural acreage—“practicable irrigable acreage”—to the extent that was “feasible

and fair.” 373 U.S. at 601. Likewise in this case, the appurtenant water right to Jemez

T 3
It might be helpful to analogize to real property. The Pueblos have no
entitlement to expanded reservation lands. Likewise, they are not entitled to expanded
water rights not tethered to historical practices.

4
River water should be the “feasible and fair” amount based on traditional native irrigation

practices.

Third, the use of water is undeniably different from the use of land, and therefore

the district court should be wary of applying precedent involving aboriginal land rights to

the question of water rights. The Supreme Court decision that first recognized the

doctrine of aboriginal rights, Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823), spoke

only of “the rightful occupants of the soil, with a legal as well as just claim to retain

possession of it, and to use it according to their own discretion.” Id. at 573–74 (emphasis

added). More recent Supreme Court cases describing aboriginal rights continue to

emphasize the applicability of the doctrine to land:

It very early became accepted doctrine in this Court that although fee title to
the lands occupied by Indians when the colonists arrived became vested in
the sovereign—first the discovering European nation and later the original
States and the United States—a right of occupancy in the Indian tribes was
nevertheless recognized. That right, sometimes called Indian title and good
against all but the sovereign, could be terminated only by sovereign act.
Once the United States was organized and the Constitution adopted, these
tribal rights to Indian lands became the exclusive province of the federal
law.

Oneida Indian Nation of N.Y. v. Oneida County, 414 U.S. 661, 667 (1974) (emphases

added). One might respond, as the Pueblos did in their reply brief, that water rights are

implied and part of the “bundle of sticks” comprising a tribe’s land rights. But such

implied rights are anathema to the doctrine of prior appropriation, in which water rights

“do not depend on land ownership and are acquired and maintained by actual use.”

5
Colorado v. New Mexico, 459 U.S. 176, 189 n.4 (1982). And as further discussed below,

the Pueblos’ assertion of “implied water rights” is inconsistent with how water was

treated under Spanish and Mexican rule.

The difference between aboriginal rights to water and aboriginal rights to land is

highlighted by this Circuit’s decision in Pueblo of Jemez v. United States, 790 F.3d 1143

(10th Cir. 2015). In that case, the Jemez Pueblo asserted aboriginal rights to what is now

the Valles Caldera National Preserve. The panel addressed the narrow question of

whether the Jemez Pueblo’s aboriginal rights to that land had been extinguished by a land

grant in 1860 to non-Puebloans. In holding that the land grant did not extinguish the

Pueblo’s aboriginal land claim, the panel recognized that “simultaneous occupancy and

use of land pursuant to fee title and aboriginal title could occur because the nature of

Indian occupancy differed significantly from the occupancy of settlers.” Id. at 1165

(emphasis added). That reasoning, however correct it may be with respect to land use,

has limited application to water use—particularly where, as here, the Jemez River is fully

appropriated. Unlike land, the use of water by one user, regardless of its purpose, is

necessarily to the exclusion of all others.4

T 4
The different characteristics of water are well-recognized. Water is a “usufruct,”
that is, a substance that is not impaired by use. See Usufruct, Black’s Law Dictionary
(11th ed. 2019). For our purposes, after it is applied to a use, it returns back to the river
system or evaporates and later returns somewhere as precipitation. And to be used
beneficially for the greatest good, water must be diverted from streams or rivers and
transported to fertile lands. No water regime ever gave one user unfettered access to all
of the water in a river merely because it flowed across land owned in fee simple.

6
 Fourth, the reality is we have no “law of ancestral Indian water rights.” See

generally Felix S. Cohen, Cohen’s Handbook of Federal Indian Law, § 4.07[2][c] (2012).

Instead, it is more a question of federal common law. See id. § 4.07[2][c], at 323; Oneida

Indian Nation, 414 U.S. at 667. And as I’ve tried to explain, that common law is a

problem of quantification, not existence. Legislation like the Pueblo Compensation Act

of 1933 recognized the problem by specifying that any compensation to Pueblos for the

fair market value of their last water rights shall not “be construed to deprive any of the

Pueblo Indians of a prior right to use of water from streams running through or bordering

on their respective pueblos for domestic, stock-water, and irrigation purposes . . . .”

Pueblo Compensation Act, 48 Stat. 108, 111 (1933). In other words, Indian water rights

devolved from an unlimited right to the stream prior to other appropriators, to a

“reasonable” (or “feasible and fair”) amount when other users lawfully accessed the

stream.

Fifth, in addressing the complicated issue of quantification on remand, the district

court should keep firmly in mind the Supreme Court’s observations in City of Sherill,

N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005). In that case, the Oneida

Indian Nation resisted the payment of property taxes to the City of Sherill on the basis

that the Oneidas recently had acquired fee title to parcels in Sherill that were once part of

the Oneida reservation. The Oneidas argued that their reacquisition of these parcels

revived their ancient sovereignty, and that therefore Sherill had no regulatory or taxing

7
authority over the parcels. In holding that the Oneida Indian Nation could not unilaterally

revive its ancient sovereignty, the Supreme Court emphasized that “longstanding

observances and settled expectations are prime considerations.” Id. at 218.

In addressing the difficult issue of quantification in this case, “longstanding

observances and settled expectations” should be carefully considered on remand. Some

of the non-Pueblo water users have held water rights on the Jemez River as far back as

the late 1700s. While such rights are undeniably junior to the rights of the Pueblos, a

quantification by the district court that grants potentially limitless expanding water rights

for the Pueblos would upset the settled expectations of the non-Pueblo water users that

had developed over the nearly two centuries before the Pueblos finally initiated this

litigation in 1983. Such settled expectations and the passage of so much time may mean

that the Pueblos’ aboriginal water rights, while not extinguished, have necessarily been

modified in such a way as to preclude the Pueblos’ expanding or future use claims.

8