10th Circuit Decides Water Rights Case 400 Years in the Making
Appellate decision might set precedent regarding Native water rights

by Avery Martinez
The Byron White courthouse in Denver

In ruling on a 37-year-old case, the 10th Circuit Court of Appeals examined over 200 years of law dealing with the sovereignty of three different nations on the American continent to determine whether aboriginal water rights of three small pueblos in New Mexico were extinguished by Spanish sovereignty more than 400 years ago.

The main question of the appeal was whether or not a sovereign could eliminate aboriginal rights simply by its imposition of authority without any affirmative act to remove the rights — and the panel of the 10th Circuit judges held it cannot. The court held that a sovereign must affirmatively act to eliminate aboriginal water rights, reversing the district court’s ruling and remanding the case for further proceedings.

The opinion was before Chief Judge Timothy Tymkovich, who wrote the dissent, and judges David Ebel, who wrote the majority opinion, and Harris Hartz.

The legal dispute began in 1983, when the U.S. began a water-rights adjudication for the Jemez River Basin and claimed water rights on behalf of three pueblos — Jemez, Santa Ana and Zia. The three pueblos reside along the Jemez River in New Mexico and have been there “since time immemorial” throughout Spanish, Mexican and finally U.S. sovereignty, according to the opinion.

The court and parties agreed on five threshold legal issues needing to be decided before the parties could properly prepare for trial. The district court’s order decided only a single issue: Did the pueblos ever possess aboriginal water rights in connection with their grant or trust lands, and have those rights been modified or extinguished by any actions of Spain, Mexico or the U.S.?

The district court found that the pueblos did have aboriginal water rights, however, it concluded that the pueblos’ rights were “extinguished by Spain’s assertion of sovereignty over the region in the late 1500s,” the opinion states.

The interlocutory appeal addressed the issue of whether the pueblos’ “aboriginal water rights were extinguished by the imposition of Spanish authority without an affirmative act.

In determining whether those rights were extinguished, the court detailed the main principles that guided Spain’s control of water: First, public waters were held in common and shared by all, and second, a person couldn’t use public waters to “the detriment of other users,” according to the opinion. The Spanish also included a “repartimiento de aguas” similar in concept to water adjudication. In central Mexico, 22 such repartimientos were undertaken, but only one known repartimiento took place in New Mexico, and in 1823 under Mexican sovereignty. The opinion notes that no such repartimiento was exercised as to the pueblos.

In turn, the opinion defines aboriginal title as referring to the land claimed by a tribe by virtue of its possession and exercise of sovereignty instead of letters of patent or any formal conveyance. The concept of aboriginal title, also known as “Indian” or native title, comes from recognition that property rights of indigenous people persist even after another sovereign assumes authority.

The opinion also notes that throughout Spanish sovereignty in what is today Mexico, the Spaniards “continued to consider Indians as original owners of their property” and recognize native government. In turn, there was a sometimes-preferential status for natives under Spanish rule. There is no documentary evidence the Spanish magistrates forced pueblos to allot lands and water within their communities in a particular way.

“Extinguishing aboriginal rights is complicated,” the opinion states, and can only be extinguished by the sovereign. The title can be extinguished by “treaty, by the sword, by purchase, by the exercise of complete dominion adverse to other right of occupancy, or otherwise” and must be clear and unambiguous.

The court pointed to Lipan Apache Tribe v. United States which held that with an absence of “clear and plain indication” in public record of the sovereign intending to extinguish all of the rights in their property, “Indian title continues.”

The opinion states there is no indication, and no clear and plain indication, that Spain intended to extinguish the aboriginal rights of the 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.”

In addition, there was no evidence in the expert reports or testimony that Spain’s water administration system was adverse to the pueblos, and never ended the exclusive use of water or limited use in any way, according to the opinion.

THE DISSENT

Tymkovich, in his dissent, wrote that while the question of whether the water rights were extinguished or not is an important aspect of the case, “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.”

The dissent notes that the majority determined the pueblos’ aboriginal water rights haven’t been extinguished, but this can’t mean, as a practical matter, that the Pueblos now have limitlessly expanding water rights. The dissent points to their assertion that their aboriginal water rights include “an amount sufficient to satisfy their future needs,” and notes the pueblos disclaim of any intention seeking limitless right.

First, the district court may wish to consider whether the imposition of Spanish law placed certain limits on those aboriginal water rights “by virtue of the arrival of non-Pueblo water users on the Jemez River,” according to the dissent.

“… the reality is we have no ‘law of ancestral Indian water rights,’” the dissent states. Instead, this is a question of federal common law. The dissent also notes that use of water is different from the use of land, and the court should be wary of applying precedent involving aboriginal land rights to the question of water rights.

Further, the competing experts in the case agreed that once non-pueblo users were allowed on the river, the Spanish crown considered the river  “shared public resources,” according to the dissent. The dissent mentions that some non-pueblo water users have held rights on the Jemez River going back to the 1700s, and while junior to the rights of the pueblos, this decision could upset the settled expectations of non-pueblo users, which have developed over the nearly two centuries before the pueblo litigation in 1983.

“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,” the dissent states.

 

This article appeared in the Oct. 5 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.