By Christina J. Bruff
On September 29, 2020, the Tenth Circuit Court of Appeals addressed the question whether the U.S. District Court in New Mexico was correct in holding that the mere fact the government of Spain exercised sovereign control over the area where the Jemez Indian Pueblo had been located at the time of the exercise of sovereign control, without more, destroyed the aboriginal water rights of the Jemez, Santa Ana and Zia Indian Pueblos. The Court of Appeals reversed and ruled in favor of the Jemez River Pueblo Indian tribes concluding their water rights were not extinguished by the colonial Spanish crown. [United States on Behalf of the Pueblos of Jemez, Santa Ana and Zia v. Abouselman, ___F.3d___, Case No. 18-2164 (10th Cir. Sept. 29, 2020).]
Background
The case arose from an interlocutory appeal from a Memorandum Opinion and Order of the U.S. District Court for the District of New Mexico that held 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. Abouselman, ___F.Supp.3d___, Case No. 83-cv-1041 (D. N.M. September 30, 2017). That Memorandum Opinion and Order was significant for what it concluded the Pueblos did not have rather than what they do have in terms of water rights.
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. For almost 40 years, 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 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. United States, 207 U.S. 564 (1908); United States v. Winans, 198 U.S. 371 (1905). New Mexico’s Indian Pueblos are unique based on the fact that their lands were not divided by the United States into reservations, therefore, they cannot claim water rights under Winters.
The Tenth Circuit’s Decision
Parameters of the Court’s Decision
The Tenth Court of Appeals was careful to make clear that the only discrete question it was deciding was whether the appellants were correct in insisting that the mere presence of Spanish sovereignty was insufficient to destroy the aboriginal rights of the Pueblo. The Court of Appeals made it clear that it was not deciding three sub-issues including whether: 1) “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?” See, Op. at 9 fn. 3. The Court of Appeals also made clear that its decision provided no holding as to the proper standard for quantifying the aboriginal rights of the Pueblos. Nor does the opinion any other kinds of water rights the Pueblos may have. Nor did it decide any issues vis a vis the aboriginal water rights of the Pueblos that may have been taken by either Mexico or the United States. Op. at 11.
The Court of Appeals succinctly stated the narrow, discrete question it was deciding:
. . .[w]hether, as a matter of law, a sovereign can extinguish aboriginal rights to water by the mere imposition of its authority over such water without an affirmative act. Op. at 12.
Finally, the court pointed out that all parties to the appeal had agreed that the Jemez Pueblo had at one time had aboriginal water rights. Op. at 8. Therefore, the sole question was whether the actions of Spain were so clear an affirmative act as to extinguish those aboriginal rights.
Looking to the Actions of Spain
The Court then evaluated the actions taken by the Spanish crown vis-a-vis Indian Pueblos. It evaluated the expert reports below and concluded, inter alia, that:
. . .the direction given to local authorities in the distribution of the realengas (communal grants of land) ‘typically called for Indian property and resources to be respected’ Op. at 14.
The Court of Appeals pointed out that this respect or the native peoples was a part of history dating back to the early history of Spain. It then referenced the Recopilacion de Indias, which stated that the Indians should be left their land any resources they may need. Op. at 15 Given the Recopilacion, “there is no documentary evidence that Spanish magistrates forced Pueblos to allot lands and water within their communities in a particular way.” Id. Finally, the court concluded that while there was no doubt that the Spanish had the prerogative to direct that water be used in a particular way, that did not mean that it always exercised that prerogative to control Pueblo water use. Op. at 15. The court also noted that while the Spanish government could allow local government officials to issue repartimiento de aguas (comparable to a modern-day adjudication procedure) there was no evidence that such a process was employed by Spain involving the Jemez, Santa Ana, or Zia Pueblos or any Pueblo during the Spanish period. The only one that occurred was during the Mexican period, and therefore, no repartimiento purported to reduce or modify Pueblo use of water. Op. at 16. The court then found that if there is a dispute between the United States and the Indians “(the rights) are to be resolved in favor of the Indians.” Op. at 18. Finally, the court pointed out that the policy of the federal government to respect Indian rights of occupancy could only be interfered with or determined by the United States. Op. at 21 citing Santa Fe Pac. R.R. Co., 314 U.S. 339 (1941).
Spain’s Intent Requires Looking to Affirmative Actions
The Court went on to conclude as a matter of law that:
. . .an intent to extinguish can only be found when there is an affirmative sovereign action focused at a specific rights 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. Op. at 22 citing Plamondon ex rel. Cowlitz Tribe of Indians v. United States, 467 F.2d 395 (Ct. Cl. 1972).
Based upon all of the above analyses of Spanish law and the Indian tribe cases, the court concluded that:
. . .[w]ithout an affirmative adverse act, there is neither directed sovereign action from which a court may find a clear and plain indication that the sovereign intended to extinguish sovereign title. Op. at 25.
The court went on to conclude that:
. . .[t]he passive implementation of a generally applicable water administration system (as was employed by Spain) does not establish Spain’s clear intent to extinguish the aboriginal water rights of these three Pueblos. Op. at 26.
Not finding any affirmative action demonstrating more than that described above, the case was reversed. Op. at 27.
The Dissent
The dissenting judge opined that the interlocutory appeal was improper because the majority did not at the same time decide issues pertaining to quantification of the aboriginal water right, which would have significant implications for all other interested parties. There was a stated concern in the dissent that the Opinion might create the impression that the aboriginal water right could be an ever-expanding right. The dissent further referenced New Mexico ex rel. City of Las Vegas, 89 P.3d 47, 60 (N.M. 2004), which concluded that the Treaty of Guadalupe Treaty did not provide for an expanding Pueblo water right. Finally, the dissent recommended the approach taken in Arizona v. California, 373 U.S. 546 (1963) limiting the water right to a fixed amount based on practically irrigable acreage. The dissent cautioned against the impact of the Opinion on the expectations of some non-Pueblo water users what have established water rights dating back to the late 1700s.
Conclusion and Implications
The majority Opinion from the Tenth Circuit is being lauded as a correct interpretation of Spanish law as applied to Pueblo Indian water rights. The Opinion reaffirms the principle that many have long argued that Spanish law did not modify Pueblo water rights entitlements unless there was an affirmative action making it clear that was the Spanish crown’s intent. The Court did not speculate as to the quantification of the Pueblos’ aboriginal water right and remanded the case to the U.S. District Court for further proceedings consistent with its Opinion. The Tenth Circuit’s Opinion is available online at: https://www.ca10.uscourts.gov/opinions/18/18-2164.pdf
