On September 30, 2017, the U.S. District Court for the District of New Mexico issued a Memorandum Opinion and Order holding that the Pueblos of Santa Ana, Zia and Jemez do not have aboriginal water rights. [Memorandum Opinion and Order Overruling Objections to Proposed Findings and Recommended Disposition Regarding Issues 1 and 2 [Doc. 4397], United States on behalf of Pueblos of Jemez v. Abousleman] The Memorandum Opinion is the latest in the adjudication battleground over Pueblo Water Rights. [United States on behalf of Pueblos of Jemez v. Abousleman, ___F.Supp.3d___, Case No. 83-cv-1041 MV/WPL (D. N.M. Sept. 30, 2017). [Jemez River Adjudication]]

Background

The history of the Pueblos’ Water Rights in New Mexico is complex and beyond the scope of this brief update, however a few highlights from the Aamodt Adjudication wherein the federal District Court and Tenth Circuit have sought to provide legal contours to Pueblo Water Rights are worth noting. The oldest case on the federal docket and the West’s longest running adjudication is State of New Mexico v. Aamodt, No. 66cv06639 (D. N.M. filed April 20, 1966). 537 F.2d 1102 (10th Cir. 1976) (Aamodt I). In addition to the northern New Mexico Pueblos of Nambe, Pojoaque, Tesuque and San Ildefonso, the general stream adjudication covers all waters of the Pojoaque Basin, a tributary of the Rio Grande just north of the City of Santa Fe. The case has gone through multiple twists and turns, including an early significant ruling by the late U.S. District Court Judge Edwin Mechem that the Indian Pueblos had quantifiable water rights that were prior to those of the other acequia water users on the tributaries, and such water rights could be expanded over time as Pueblo needs increased. That unreported decision ultimately formed the basis of a Settlement among the Pueblos and non-Indians and the County of Santa Fe. That Settlement was accepted by the Congress of the United States and funded in part. The underlying assumption of the Aamodt decision and the Settlement was that the Pueblos held a Pueblo Indian water right under Spanish and Mexican law that remained viable and enforceable under the Treaty between Mexico and the United States. Treaty of Guadalupe Hidalgo, Feb. 2, 1948 United States-Mexico, 9 Stat. 922 (1948).

In New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976) (Aamodt I) the Tenth Circuit rejected New Mexico’s argument that the doctrine of prior appropriation should be applied to the Pueblos: “[T]he water rights of the Pueblos are not subject to the laws of New Mexico.” Id. at 1112. The issue of what law does apply had been the central focus of the remand to the District Court of New Mexico since then. Over the years, attorneys for the Pueblos and the United States argued priority and quantity are based on aboriginal rights to possess the land and use its waters for Pueblo purposes. See generally, Winters v. U.S., 207 U.S. 564 (1908).

The court later set forth the legal nature of Pueblo water rights. New Mexico ex rel. Reynolds v. Aamodt, 618 F. Supp. 993 (D. N.M. 1985) (Aamodt II) (rejecting practically irrigable acreage as measure for water rights on Pueblo lands and providing for historically irrigated acreage (HIA) as a measure of aboriginal water rights with an immemorial priority date). Id. at 1005-1010. Attempting to answer some of the questions posed by the Tenth Circuit, a ruling by Senior Judge Mechem in early 2001 tied future water use to the northern New Mexico Pueblos to actual use between 1846 and 1924, roughly 200 acre-feet per year:

• Aboriginal domestic water rights are quantified by the water actually used by the Pueblos between 1846 and 1924. Unless governed by replacement or Winters right rules, domestic rights acquired after 1924 are defined by state law standards and requirements. Mem. Op. at 9, New Mexico ex rel. Reynolds v. Aamodt, No. 66-cv-6639 (January 31, 2001).

The Pueblo Indian Water right has been premised in part upon an analogy between the aboriginal water right theory of Indian reserved water rights under which Tribes that were in possession of lands prior to creation of a federal reservation could trace their priority date back to their aboriginal possession, and prior to the time that the right was confirmed by a federal treaty with the Tribes or by a Congressional act creating a federal reservation for the tribe. In other words, their water right was based upon their aboriginal possession and not subsequent federal actions. cf. Winters v. U.S., 207 U.S. 564 (1908); U.S. v. Winans, 198 U.S. 371 (1905).

This is a complex topic that has occupied thousands of pages of legal briefs. However, in summary, the Pueblo Indians were in possession of lands when the Spanish arrived and remained in possession during the Mexican period. When the United States formally acquired the territory where the Pueblos had been in possession, there was no formal treaty with the Pueblos. Rather, there was a treaty between the United States and Mexico. Under that Treaty, the Pueblos’ entitlements were those of Mexican citizens, and there was a commitment that their existing property rights would be preserved. The question for the court to decide was: what was the nature of the “property” in water that was retained by the Pueblos under the Treaty? The Pueblos ultimately received title to their lands under a quitclaim deed from the United States, but there were no formal actions taken vis-a-vis the Pueblos that were comparable to those taken by the United States in the case of the nomadic tribes. cf. Arizona v. California, 373 U.S. 546 (1963).

Analysis

The Jemez River is a small tributary of the Rio Grande. The Jemez River Basin is the source of water for the Jemez, Zia and Santa Ana Pueblos. These Pueblos residing along the small Jemez River have been involved in the Jemez River Adjudication relating to that tributary. United States District Court Judge Martha Vazquez was called upon in the context of the Adjudication to determine whether Spanish occupation of the lands where the Indian Pueblos resided long prior the Treaty of Guadalupe Hidalgo had extinguished any aboriginal rights to water held by the Pueblos. Expert witnesses were called on the topic. The Magistrate Judge in the case concluded that Spanish possession both as a matter of law and actual physical force extinguished this aboriginal water right. Judge Vazquez affirmed the Proposed Findings and Recommended Disposition of the United States Magistrate Judge William Lynch. She reasoned as follows:

• Spanish law plainly provided that the waters were to be common to both the Spaniards and the Pueblos, and that the Pueblos did not have the right to expand their use of water if it were to the detriment of others. Memorandum Opinion and Order Overruling Objections to Proposed Findings and Recommended Disposition Regarding Issues 1 and 2 at 7 [Doc. 4397], United States on behalf of Pueblos of Jemez v. Abousleman, No. 83-cv-1041 (D. N.M. September 30, 2017).

The Proposed Findings and Recommended Disposition

In the Proposed Findings and Recommended Disposition Regarding whether the Pueblos ever possessed aboriginal or Pueblo Water Rights in connection with their grant or trust lands, the court noted that aboriginal title is a question of fact:

• Establishing aboriginal water rights requires proof that the Pueblos made actual, exclusive, and continuous use of water for a long time. [citations omitted]. Proposed Findings and Recommended Disposition Regarding Issues 1 and 2 at 11 [Doc. 4383], United States on behalf of Pueblos of Jemez v. Abousleman, No. 83-cv-1041 (D. N.M. October 4, 2016).

The court found that the Pueblos did indeed possess aboriginal water rights in conjunction with their lands prior to the arrival of the Spanish, but then the court turned to the issue of whether the Pueblos’ aboriginal water rights had been:

• . . .modified or extinguished in any way by any actions of Spain, Mexico or the United States. Id. The parties did not dispute that aboriginal title can be extinguished in various ways, including exercise of complete dominion adverse to the aboriginal right.

The court relied on Spain’s imposition of a legal system to administer the use of public waters as:

• . . .a plain and unambiguous indication that the Spanish crown extinguished the Pueblos’ right to increase their use of public water without restriction and as such is an exercise of complete dominion adverse to the Pueblos’ aboriginal right to use water. Id. at 13.

Finally, the court found that the Winans Doctrine (U.S. v. Winans, 198 U.S. 371 (1905) does not apply to the Pueblos’ lands because, inter alia, Spain extinguished the Pueblos’ aboriginal water rights, and therefore, the Doctrine governing aboriginal water rights with a priority date of “time immemorial” could not apply.

Conclusion and Implications

It is important to note that the Memorandum Opinion and Order by Judge Vazquez is significant for what it concludes the Pueblos do not have rather than what they do have. It decides only that these Pueblos do not have an aboriginal water right in the traditional sense of U.S. v. Winans, 198 U.S. 371 (1905). The Memorandum Opinion and Order makes no determinations as to any of the other issues. An interesting parallel logic between the past and the present is contained in the language of the court. Under the New Mexico Constitution, all waters are controlled by the state but belong to the public for any use that the state determines to be beneficial to the state as a whole. In the Jemez Adjudication, the court applied a comparable rationale in determining why, after Spain took control over Pueblo lands, the Pueblo’s rights to water ceased to be exclusively for them based upon their aboriginal possession. Judge Vasquez concluded that “Spain insisted on its exclusive right and power to determine the rights to public shared waters.” Mem. and Order at 6. The extent of the “shared waters” controlled by the Pueblos will no doubt be determined by a host of factors to be analyzed by the court later in the Adjudication. But what we do know from this decision is that the Pueblo aboriginal water rights doctrine will not be the sole lodestone for that determination.

(Christina J. Bruff)