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United States of America v. Pueblo of Santa Aana; Pueblo of Jemez; Pueblo of Zia, et al.
Case Number: 18-2164
Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of New Mexico
Plaintiff's Attorney: Mary Gabrielle Sprague, Attorney, Department of Justice (Jeffrey Bossert Clark,
Assistant Attorney General; Eric Grant, Deputy Assistant Attorney General; Elizabeth 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.
Defendant's Attorney: 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
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
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
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.
Description: Santa Fe, New Mexico Indian water law attorneys
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,
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
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.
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
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
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.
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.
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
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
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
explained above, any actions taken by Mexico or the United States were mooted by
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
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
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.
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
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.)
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
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.”
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–
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
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
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).
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.
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
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
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
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
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
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
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
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
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.
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.
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
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.
decide whether the Pueblos have aboriginal water rights entitling them to an as-yetundefined
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).
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.
River water should be the “feasible and fair” amount based on traditional native irrigation
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
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.”
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.
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[c] (2012).
Instead, it is more a question of federal common law. See id. § 4.07[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
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
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.
Outcome: 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.