(concurring in part and dissenting in part):
I fully concur in Parts I, II, III and IV of the majority opinion.
I agree with much of the factual chronology and legal rationale set forth in Parts V, VI, VII and VIII of the majority opinion, but must respectfully dissent from some important conclusions and the ultimate disposition.
In my view, the recent Supreme Court decision in Cappaert v. United States, -U.S.-, 96 S.Ct. 2062, 48 L.Ed.2d 523 (44 U.S.L.W. 4756, 1976) supports my contention that the Congress was fully cognizant of the broad scope and reach of the so-called Winters Doctrine following the overruling of United States v. Joseph, 94 U.S. 614, 24 L.Ed. 295 (1876) by United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913). The Congress was well aware during deliberations and hearings held prior to enactments of the Pueblo Lands Acts of 1924 and 1933 that the Winters Doctrine was fully applicable to all of the lands in Pueblo ownership or possession which were granted-confirmed by the United States on December 22,1858, pursuant to 11 Stat. 374. The legislative footprints confirm that the Congress was aware that under the Winters Doctrine the “upstream” good faith non-Indian owners of lands and appurtenant *1114water rights on the Nambe-Pojoaque River System would suffer the dire economic consequences so lucidly stated in Cappaert, supra. Recognition that Winters Doctrine water rights reserved by the United States for Indians are prior to all non-Indian upstream users generated Congressional enactments of the Pueblo Lands Acts of 1924 and 1933 in order to temper, at least in part, the disastrous effects of the doctrine on the “good faith” non-Indian settlers, both downstream and upstream, by effecting a compromise. The 1933 Act accomplished that by subjecting the Pueblos’ otherwise Winters Doctrine water rights on the stream system as of May 31,1933 to the New Mexico appropriation laws. In my view Section 9 of the 1933 Act is critical and pivotal in “spelling out” this compromise when considered in conjunction with the legislative history of the two acts. Otherwise, much of that section is meaningless. For example, Winters rights cannot be lost by nonuse or abandonment unless so decreed by the Congress. The Congress did not attempt to impede the Pueblos to uses of the waters on other lands in their ownership to other than Winters Doctrine rights after May 31,1933, in my interpretive view.
There are approximately 900 non-Indian parties involved in this suit who own lands adjacent to the Nambe System and who depend upon the waters for their economic survival. The “priority” issue which the Congress in 1933 left to the courts for ultimate disposition is now — almost 43 years later — exactly the issue which must be ultimately determined in this litigation. I suggest that unlike any other litigation heretofore presented involving Indian v. non-Indian water uses and priorities — whether under the Winters Doctrine or rights derived under prior sovereigns — this case does, in fact, evidence that the Congress specifically and directly did do equity and did “balance [the] competing interests” by means of enactment of the Lands Board Acts of 1924 and 1933.
Before “tracking” the language of the 1924 and 1933 Acts and the legislative history of each, some basic rules relative thereto may be helpful. Congress possesses a paramount power over the property of the Indians by reason of its exercise of guardianship over their interests. Thus, plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one not subject to the control of the judicial department of the government. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903); Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041 (1899). Congress possesses full administrative power over tribal property and if injury is occasioned to the Indians’ property as a result thereof, relief must be sought solely by an appeal to the Congress, not to the courts. Cherokee Nation v. Hitchcock, 187 U.S. 294, 23 S.Ct. 115, 47 L.Ed. 183 (1902). The propriety or justification of action by the Federal Government relative to Indian lands and properties is a political rather than a judicial question and that power is plenary. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974); United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941), rehearing denied, 314 U.S. 716, 62 S.Ct. 476, 86 L.Ed. 570 (1942); Sisseton and Wahpeton Bands of Sioux Indians v. United States, 277 U.S. 424, 48 S.Ct. 536, 72 L.Ed. 939 (1928); Buttz v. Northern Pacific Railroad, 119 U.S. 55, 7 S.Ct. 100, 30 L.Ed. 330 (1886).
While doubtful expressions in statutes are to be resolved in favor of the Indians, still effect of legislation which proves disastrous to the Indians does not justify the courts from departing from the terms of the acts as written; the responsibility for justice or wisdom of legislation rests with Congress and the fact that its effect deals harsh consequences to the Indians cannot influence the courts, whose sole province is that of enforcing, not making the laws. United States v. First National Bank, 234 U.S. 245, 34 S.Ct. 846, 58 L.Ed. 1298 (1914); Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306 (1886); Native American Church of North America v. Na*1115vajo Tribal Council, 272 F.2d 131 (10th Cir. 1959).
It is within the power of Congress to provide that the laws of a state shall extend over and apply to Indian country and activities thereon, where they clearly do not interfere with federal policies concerning the lands. Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965); Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962).
Finally, for “guideline” purposes in viewing the purposes and effects of the 1924 and 1933 Acts, I deem it important to observe that federal courts must promote not only the statutory language but also the congressional intent underlying a statute. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Reference to the legislative history is of utmost importance in this case. And, in this regard, we should bear in mind that “when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination’.” United States v. American Trucking Ass’ns, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940).
The Pueblo Lands Act of 1924
The Pueblo Lands Act of June 7,1924, 43 Stat. 636, 68th Congress, Session I, Chap. 331, S. 2932, Public. No. 253, created a three-member Board and machinery to determine title disputes within the Pueblo grants as between the Pueblo Indians and the non-Indians who occupied and held lands under claim of conveyance from the Indians.
The purpose of the 1924 Act was to make awards to the Pueblos from the United States through the Lands Board for those lands which the Board determined the Pueblos had been divested of title to non-Indian settlers due to negligence on the part of the United States government. The theory was that the United States should pay for the losses sustained by the Pueblo Indians which it might have and should have prevented. This could not include those lands, the title to which passed from Pueblo ownership to non-Indian ownership under prior sovereigns. Obviously, in such cases the United States was not at fault.
The Board was to investigate and file reports designed to determine whether the lands within each Pueblo could be recovered for the Indians by suits to be brought by the Attorney General in the nature of quiet title relative to Indian lands, the Indian title to which the report determined not to have been extinguished. Non-Indian occupants and claimants were expressly authorized to raise a special statute of limitations in defense. Section 16 of the Act provided that the Board was to separately report relative to the extent, source and character of any water right appurtenant to the lands held in possession by the non-Indian claimants; whether the lands or water rights could be or could have been at any time recovered for the Indians by action of the United States; the fair market value of the land and water rights; and a proviso that the United States shall be liable and the Board shall award compensation to the Pueblo Tribes within the exterior boundaries of whose lands such tract or tracts of land are situate or to which water rights shall have been appurtenant to the extent of any loss suffered by the Indians thereby.
The Act spoke clearly to the loss of Pueblo water rights in relation to their fair market value as appurtenant to the lands which were not recoverable. The Land Board determined and reported a per acre value not to exceed $35.00 to the Pueblo in relation to lands lost because of the negligence of the United States; and that the Pueblo water rights (those applicable to lands remaining in Indian ownership) were “superior” to the “secondary” rights appurtenant to lands in non-Indian ownership. While the Board did not make specific reference to the Winters Doctrine, it seems certain that the Board equated the Pueblos’ “superior” water rights to the Winters Doctrine. To that extent, then, without using the term “priority” as such, the Board did *1116reject the traditional rule applicable in the western states that a conveyance of land results in the conveyance of the water right appurtenant thereto. To this extent, the Board was — in effect — later “overruled” by the Congress. However, priority rights were not resolved.
The 1924 Act also provided that all sums of money appropriated by the Congress to any Pueblo or to any Indians were to be used for the purpose of purchasing “lands and water rights to replace those . lost ... or for purchase or construction of reservoirs, irrigation works”, etc., for the benefit of the lands held by the Pueblos.
The Interval Between the 1924 Act and the 1933 Act
The Pueblos complained that the $35.00 per acre awards were arbitrarily low. They pointed to certain appraisals made by the Board’s own appraisers that certain of their lands were worth $100.00 per acre. Many contentions, disputes and arguments relative to the nature of the water rights of the Pueblos on the one hand and that of the “good faith” white settlers on the other, in terms of priority use, persisted and festered.
In Pueblo de San Juan v. United States, 47 F.2d 446 (10th Cir. 1931), cert. denied, 284 U.S. 626, 52 S.Ct. 11, 76 L.Ed. 533 (1931), this Court affirmed the decree of the United States District Court for the District of New Mexico which had confirmed an award of the Pueblo Lands Board made under the 1924 Act wherein the Board found that of the 17,584.77 acres in the San Juan Pueblo Grant, the Indian title to 3,449.72 acres and the water rights appurtenant thereto had been extinguished; that 1,020.63 acres thereof could be recovered for the Indians by a suit seasonably brought by the United States; that $60,758.94 was the value of such lands, exclusive of improvements placed thereon; and that the loss suffered by the Indians was $29,090.53. An award in that amount was made. The Pueblos claimed that the award was insufficient and on appeal they contended: (1) that an award should have been made for all the lands and water rights as to which the Board found the Indian title to have been extinguished, and (2) that the award for the loss of lands and water rights considered was inadequate. On appeal this Court first confronted the contention that it was impossible for the Pueblos, under the laws of Spain, Mexico or the United States, to have lawfully alienated its lands and that, therefore, all of it could have been recovered by seasonable prosecution of actions by the United States. This Court stated:
. Furthermore, during the time the lands were under the sovereignty of Spain, lawful conveyances could have been made by the pueblo with the approval of the sovereign; and, during the time such lands were under the sovereignty of Mexico, there is strong basis for the proposition that the pueblo had authority to convey without the approval of the sovereign.
The act declares that upon review “the report of the board shall be prima facie evidence of the facts .
. subject, however, to be rebutted by competent evidence” . 47 F.2d at 447.
In relation to the Pueblo contention that the method employed by the Board in arriving at the value of the land, which it concluded could have been recovered by seasonable prosecution of a suit by the United States was erroneous, this Court held that the Pueblos had not offered any competent evidence in opposition to the Board’s finding. [47 F.2d 446 at 447]. Further, this Court held that the “good faith” white settlers (who occupied some 3,449.72 acres) owned both the surface estate and the water rights, declared to be appurtenant to the lands. No reference was made relative to priorities. The matter was not then at issue.
Congressional Report No. 492, April 24, 1924, Senate Calendar No. 522, accompanying S. 2932, 68th Congress, after detailed *1117historical recitation leading to the Sandoval opinion, observed in part that “Up to the time of the Sandoval case ... it had been assumed by both the Territorial and State Courts of New Mexico, that the Pueblos had the right to alienate their property . as a result . . . conflicts as to title and right of possession arose . . hearings disclosed that there 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”.
Senate Report No. 678, Calendar No. 720, 72nd Congress, 1st Session, May 9, 1932, submitted by Senator Bratton from the Committee on Indian Affairs accompanying S. 2914 (enacted May 31, 1933), stated, in pertinent part:
“ . . . the object of the pending bill . . . is to compensate the Indians . . . and the non-Indians . for the fair market value of the lands and appurtenant water rights lost by each We recommend the . bill . . . with larger figures of compensation to Indians and non-Indians . that the troublesome question of land titles and right of possession to such land and appurtenant water rights may be finally disposed of . the departure of the . . . Board . from the purpose of the Act of . 1924, was defended ... by reference to an erroneous theory that the Indians had not lost the water rights appurtenant to the lands and hence were not entitled to an award therefore. . The Act of Jutie 7, 1924, and the pending bill do not bear upon any question of priority of water rights between Indians and non-Indians . . . The question of priority of water rights will necessarily be one for judicial determination, and this amendment (Section 19) is designed and intended to leave the matter to the courts for future action.” [Emphasis supplied].
Report No. 820, House of Representatives, 72nd Congress, 1st Session, March 16, 1932, was submitted by Mr. Chavez for the House Committee on Indian Affairs to accompany H.R. 9071. This report, too, states that priority of the respective water rights is to be left for judicial determination. The report relates that at that time Indian awards made by the Board had aggregated $620,904.58. Attached to the report was a memo to the Secretary of the Interior from C. J. Rhoads, then Commissioner of the Office of Indian Affairs, dated March 14, 1932, wherein he stated, inter-alia:
“In the matter of water rights also a difference of treatment has occurred. In the board’s findings efforts were made to preserve to the Indians in the lands that they retain priority water rights for their needs, and this factor entered into the board’s findings of value of the lands and water lost to the Indians. The reservation of a water priority was in many cases specific, was filed with the court, and should be protected. In this bill, however, all water which, in the opinion of the proponents of this bill, is appurtenant to the land is taken to pass with the land, and omitting as it does all reference to water priority for the remaining Indian lands, a higher valuation for the water lost is included in the . . present-day appraisals than was used by the board. Thus the act of . . 1924, has been interpreted one way by the board and this bill proposes to interpret it another way and to supplement or set aside the board’s findings thereby making a total of $761,954.88 additional, exclusive of the amount found due the Laguna pueblo.” [Emphasis supplied].
Report No. 123, House of Representatives, 73rd Congress, 1st Session, Report of Mr. Chavez to accompany H.R. 4014, May 10,1933, Committee on Indian Affairs, contained these recitals of interest:
“The Act of June 7,1924, was passed in an effort to correct a condition which had arisen through the loss of possession by said Indians of 5,545 parcels of land claimed by non-Indians who had settled upon and gained equitable or moral rights thereto, involving 98,000 acres. Congress, by said Act of 1924, following the principles announced in the Sandoval *1118case . . . assumed the liability . to award compensation to the pueblo within whose boundaries such tracts of land are situated, or to which water rights are appurtenant to the extent of any loss suffered by said Indians through failure of the United States seasonably to prosecute any right of the United States or of said Indians.” [Emphasis supplied].
Accompanying the above report is a letter from then Secretary of the Interior Harold L. Ickes, dated May 9, 1933, addressed to Senator Wheeler, Chairman of the Committee on Indian Affairs which reviewed the background leading to the Act of 1924. This letter includes these observations:
“The Act of June 7, Í924, was an attempt to compromise legal rights, vested in the Indians, with moral and possibly equitable rights which had become vested in non-Indians through lapse of time; and the act established the responsibility, resting upon the United States Government, to compensate Indians and whites under certain conditions defined in the Act.”
“The Pueblos were to be paid compensation . . . amounting to the market value ... of such lands where the Pueblo title was divested . this compensation . . . to be expended to procure new lands and waters to replace those surrendered or taken, thus enabling the Pueblos to reestablish their .economic independence.”
“The bill (See. 2) authorizes . an increase of compensation (to the several pueblos) ... of $761,954.88 . the supplemental compensation . . . when added to the compensation heretofore appropriated, is the value, less improvements, of the lands and their appurtenant waters as found by the appraisers of the . . . Board.”
“Section 9 provides, with respect to the lands now in Pueblo ownership, that the Indians prior rights to water shall not be subject to loss through nonuse or abandonment." [Emphasis supplied].
Report No. 73, United States Senate, 73rd Congress, 1st Session, May 15,1933, by Senator Bratton, Committee on Indian Affairs, to accompany S. 691:
Accompanying this report is a letter from then Secretary of the Department of the Interior, Mr. Ickes, dated May 9, 1933, which states in part:
“Section 6 provides for election by the Pueblos as to whether they will accept the amended compensation totals as in final settlement, or will reject the settlement through . . . suits . within one year after approval of the act litigation . . . affecting the ownership of these Pueblo lands, will be forever ended.”
“Section 9 provides, with respect to the lands now in Pueblo ownership, that the Indians prior rights to water shall not be subject to loss through nonuse or abandonment.”
“Section 5 contains language designed to facilitate and safeguard the purchase of lands and waters for the Pueblos through the expenditure of their compensation awards . . . ”
There were many other documentaries, reports, hearings and debates. The question as to whether the non-Indians had obtained water rights with priorities on an equal measuring standard to that of the Pueblos was hotly debated. Senators Brat-ton and Cutting of New Mexico took a strong position, concurred in by the Pueblos (who were represented by independent counsel) that the Pueblos were not entitled to any preference over the non-Indian settlers and that all were subject to the appropriation laws of New Mexico.
One must necessarily ask at this juncture: In view of the determination by the Lands Board, acting pursuant to the 1924 Act, that no appraisals [and, of course, no awards] were to be made relative to water rights in use on lands occupied by the “good faith” white settlers — because the Board considered them to be “secondary” to the “superior” water rights held by the Pueblos applicable to lands remaining in Pueblo ownership — what did the Pueblos lose justi*1119fying additional appropriations under the 1933 Act? There is no doubt, in my view, that the 1933 Act rejected the Board’s determination made under the 1924 Act that the Pueblos had not “lost” these water rights, for which they were granted additional compensation. Under these circumstances, how can it be said that the Pueblos “lost” any water rights — in the all-important sense of priority — notwithstanding the additional compensation paid for the loss if, as the majority opinion holds, all Pueblo water rights now in use or which may hereafter be placed in use on Pueblo lands are not subject to the appropriation laws of New Mexico but are Winters Doctrine rights? If this be so, no compromise was effected and the Pueblos were compensated for the loss of water rights which are “inferior” in terms of priority to all water rights they retained.
It is significant that it was well recognized that at least 80 percent of the lands within the exterior boundaries of the Pueblo grants had been acquired by the white settlers (thus alienated from Indian title) in good faith.
The Pueblo Lands Act of 1933
The Pueblo Lands Act of May 31,1933,48 Stat. 108, 73rd Congress, 1st Session, Chap. 45, H.R. 4014, Public No. 28, authorized to be appropriated sums to the Indian Pueblos “for the purchase of lands and water rights to replace those which have been divested from said pueblo under the Act of June 7, 1924, or for the purchase or construction of reservoirs, irrigation works, or other pertinent improvements upon or for the benefit of the lands of said pueblos”.
Sec. 2 provided:
“In addition to the awards made by the Pueblo Lands Board, the following sums . are, authorized to be appropriated:”
See. 9 provided:
“Nothing herein contained shall in any manner be construed to deprive any of the Pueblo Indians of a prior right to the use of water from streams running through or bordering on their respective pueblos for domestic, stock-water, and irrigation purposes for the lands remaining in Indian ownership, and such water rights shall not be subject to loss by nonuse or abandonment thereof as long as title to said lands shall remain in the Indians.” [Emphasis supplied].
In my judgment, unlike the view of the majority, Section 9 becomes critical and pivotal in the disposition of the “priorities” dispute involved in this litigation.
The appellants argue that: (a) the 1933 Act clearly established Winters Doctrine water rights for the Pueblo Tribes and repudiated the contention that the Pueblo Lands Act of 1924 adopted the doctrine of prior appropriation to limit the water rights of the Indian Pueblos; (b) Section 9 of the 1933 Act established for all of the Pueblos the protection of priority to all lands remaining in Indian ownership relative to the water needed for “domestic, stock-water, and irrigation purposes” not to be lost by “nonuse or abandonment ... as long as title to said lands shall remain in the Indians”; and (c) had Congress intended that the Pueblos’ rights be defined by the doctrine of prior appropriation, it would have stated that their rights were limited to lands previously or presently irrigated, subject to forfeiture with respect to lands not under irrigation.
Appellees counter, contending that the entire logic of the 1933 Act was directed to Congressional recognition of the correctness of the Pueblos’ long-time contention that they were entitled to additional monetary compensation precisely because the Board, in its report submitted under the 1924 Act, had erroneously relied on the Winters Doctrine theory in determining that the Pueblos’ water rights on lands remaining in Indian ownership were “superior” to the “secondary” water rights of the.white settlers. They point out that Senators Bratton and Cutting believed, just as did representatives of the Pueblos, that the Pueblos had lost lands and appurtenant water rights (which Senator Bratton described as in many instances worth more than the land in this arid region) to white settlers who had dealt *1120in good faith. Appellees contend that these white occupants whose title was ultimately affirmed, were unquestionably relegated to the New Mexico law of prior appropriation — beneficial use and that the Pueblos were, by reason of the. full compensation paid for their lands and water rights lost (which they opted for), likewise fully subject to the appropriation law of New Mexico. Furthermore, appellees contend that the various reports and letters leading to the 1933 Act demonstrate that Section 9 was intended simply to prevent the loss through forfeiture or abandonment of the ancient water rights appurtenant to the lands remaining in Pueblo ownership, and that the entire logic of the 1933 Act was a recognition of the contention pressed by the Pueblos and their attorneys before the Congress that they were entitled to additional compensation precisely because the Board had relied on the “erroneous theory” of the applicability of the Winters Doctrine in its report under the 1924 Act.
Disposition
The detailed review I have made has not been undertaken for the purpose of deciding questions not raised or resolved by the District Court. Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). My purpose, rather, has been that of detailing facts and circumstances which I deem relevant in order to focus on the difficult issues in conflict. I must reject the District Court’s broad sweeping “across the board” finding that the Pueblos are subject to the doctrine of prior appropriation and beneficial use under the laws of New Mexico. I would set the judgment aside and remand for further proceedings.
I conclude that in light of the facts and circumstances leading to the May 31, 1933 Act the Congress and the Pueblos determined that in consideration of additional appropriation of public funds the Pueblos’ Winters Doctrine rights then in “use” or which had been in use on the reserved lands for irrigation purposes as of May 31, 1933, were subject to the prior appropriation-beneficial use laws of New Mexico, thus placing those lands and water rights on the same footing as those of the non-Indian “good faith” settlers then owning lands and appurtenant water rights, both downstream and upstream from the Pueblo lands; subject, however, to the proviso that at no future time could the Pueblos’ water rights be lost by non-use or abandonment. I am fully cognizant of the difficult problem involving the determination of priorities relative to the various uses, many of which “track” to the Spanish and/or Mexican rules. I do not construe Section 9 of the 1933 Act to subject those “new” uses — that is, Pueblo Indian uses made on lands after May 31, 1933, not previously irrigated — to the same restriction. Those uses, in my opinion, are not subject to the “compromise” above referred to. They enjoy the full benefit of the Winters Doctrine. Those uses are “superior” to all upstream non-Indian users based upon the Pueblos’ right to apply water to those lands in an amount necessary “ . . . to irrigate all the practicably irrigable acreage [not otherwise irrigated prior to May 31, 1933] on the reservations”. Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963).
I would remand with instructions that the District Court conduct such further proceedings deemed necessary and to make findings of fact and conclusions of law detailing the relationship — in terms of specific lands, the appurtenant water rights, their uses and priority — on the entire Nambe-Pojoaque River System between the Pueblos and the non-Indian land owners (1) as of May 31, 1933, and (2) from and after May 31, 1933.