Appellate Case: 18-2164 Document: 010110415622 Date Filed: 09/29/2020 Page: 1
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`FILED
`United States Court of Appeals
`Tenth Circuit
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`September 29, 2020
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`Christopher M. Wolpert
`Clerk of Court
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`PUBLISH
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`UNITED STATES COURT OF APPEALS
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`FOR THE TENTH CIRCUIT
`_________________________________
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`UNITED STATES OF AMERICA, on its
`own behalf and on behalf of the Pueblos of
`Jemez, Santa Ana, and ZIA,
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` Plaintiff - Appellant,
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`STATE OF NEW MEXICO, ex rel. State
`Engineer; JEMEZ RIVER BASIN
`WATER USERS COALITION,
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` Plaintiffs - Appellees,
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`and
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`PUEBLO OF SANTA ANA; PUEBLO OF
`JEMEZ; PUEBLO OF ZIA,
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` Plaintiff Intervenors,
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`v.
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`TOM ABOUSELMAN; DARWIN
`HOURIGAN; BOARD OF EDUCATION
`OF THE JEMEZ VALLEY PUBLIC
`SCHOOL DISTRICT; KING BROTHERS;
`NACIMIENTO COMMUNITY DITCH
`ASSOCIATION; PUBLIC LANDS
`COMMISSIONER,
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` Defendants.------------------------------
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`ALL PUEBLO COUNCIL OF
`GOVERNORS; PUEBLO OF ACOMA;
`PUEBLO OF ISLETA; PUEBLO OF
`SANDIA; PUEBLO OF LAGUNA;
`PUEBLO OF SAN FELIPE; PUEBLO OF
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`No. 18-2164
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`Appellate Case: 18-2164 Document: 010110415622 Date Filed: 09/29/2020 Page: 2
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`No. 18-2167
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`SANTO DOMINGO; PUEBLO OF ZUNI;
`PUEBLO OF SANTA CLARA; PUEBLO
`OF OHKAY OWINGEH; ASSOCIATION
`OF COMMUNITY DITCHES OF RIO
`SAN JOSE; TRI-STATE GENERATION
`AND TRANSMISSION ASSOCIATION,
`INC; EL RITO DITCH ASSOCIATION;
`LA ASOCIACION DE LAS ACQUIAS
`DEL RIO VALLECITOS, TUSAS Y OJO
`CALIENTE; RIO CHAMA ACQUIA
`ASSOCIATION; ASOCIACION DE
`ACQUITAS NORTENAS DE RIO
`ARRIBA; LA ACEQUIA DE LA
`SIERRA; RIO QUEMADO, RIO
`FRIJOLES, RIO EN MEDIO AND
`SANTA CRUZ STEAM SYSTEMS
`COMMUNITY DITCH ASSOCIATION,
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` Amici Curiae.
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`–––––––––––––––––––––––––––––––––––
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`STATE OF NEW MEXICO, ex rel. State
`Engineer; JEMEZ RIVER BASIN
`WATER USERS COALITION,
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` Plaintiffs - Appellees,
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`UNITED STATES OF AMERICA, on its
`own behalf and on behalf of the Pueblos of
`Jemez, Santa Ana, and ZIA,
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` Plaintiff,
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`PUEBLO OF JEMEZ; PUEBLO OF
`SANTA ANA; PUEBLO OF ZIA,
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` Plaintiff Intervenors - Appellants,
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`v.
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`TOM ABOUSELMAN; DARWIN
`HOURIGAN; BOARD OF EDUCATION
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`2
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`Appellate Case: 18-2164 Document: 010110415622 Date Filed: 09/29/2020 Page: 3
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`OF THE JEMEZ VALLEY PUBLIC
`SCHOOL DISTRICT; KING BROTHERS;
`NACIMIENTO COMMUNITY DITCH
`ASSOCIATION; PUBLIC LANDS
`COMMISSIONER,
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` Defendants.
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`ALL PUEBLO COUNCIL OF
`GOVERNORS; PUEBLO OF ACOMA;
`PUEBLO OF ISLETA; PUEBLO OF
`LAGUNA; PUEBLO OF OHKAY
`OWINGEH; PUEBLO OF SAN FELIPE;
`PUEBLO OF SANDIA; PUEBLO OF
`SANTA CLARA; PUEBLO OF SANTO
`DOMINGO; PUEBLO OF ZUNI;
`ASSOCIATION OF COMMUNITY
`DITCHES OF RIO SAN JOSE; TRI-
`STATE GENERATION AND
`TRANSMISSION ASSOCIATION, INC.;
`EL RITO DITCH ASSOCIATION; LA
`ASOCIACION DE LAS ACEQUIAS DEL
`RIO VALLECITOS, TUSAS Y OJO
`CALIENTE; RIO CHAMA ACEQUIA
`ASSOCIATION; ASOCIACION DE
`ACQQUIAS NORTENAS DE RIO
`ARRIBA; LA ACEQUIA DE LA
`SIERRA; RIO QUEMADO, RIO
`FRIJOLES, RIO EN MEDIO AND
`SANTA CRUZ STREAM SYSTEMS'
`COMMUNITY DITCH ASSOCIATION,
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` Amici Curiae.
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`_________________________________
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`Appeal from the United States District Court
`for the District of New Mexico
`(D.C. No. 6:83-CV-01041-MV-JHR)
`_________________________________
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`Mary Gabrielle Sprague, Attorney, Department of Justice (Jeffrey Bossert Clark,
`Assistant Attorney General; Eric Grant, Deputy Assistant Attorney General; Elizabeth
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`3
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`Appellate Case: 18-2164 Document: 010110415622 Date Filed: 09/29/2020 Page: 4
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`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.
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`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
`Zia.
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`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
`New Mexico.
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`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.
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`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
`Plaintiffs Intervenors-Appellants.
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`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.
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`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.
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`Appellate Case: 18-2164 Document: 010110415622 Date Filed: 09/29/2020 Page: 5
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`_________________________________
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`Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.
`_________________________________
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`EBEL, Circuit Judge.
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`_________________________________
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`The Pueblos of Jemez, Santa Ana, and Zia have resided along the Jemez River
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`in northern New Mexico since time immemorial; they resided there as their lands
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`passed from Spanish sovereignty, to Mexican sovereignty, and finally to the United
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`States. Almost forty years ago, the United States initiated a water-rights adjudication
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`for the Jemez River Basin, claiming water rights on behalf of the Pueblos. Before us
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`today is an interlocutory appeal addressing a discrete purely legal issue from that
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`ongoing, decades-long litigation: “[W]hether the Pueblos’ aboriginal water rights
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`were extinguished by the imposition of Spanish authority without any affirmative
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`act.” (App’x 276.)
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`Exercising our jurisdiction under 28 U.S.C. § 1292(b), we hold that a
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`sovereign must affirmatively act to extinguish aboriginal water rights. Therefore, we
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`REVERSE the district court’s determination below and REMAND the case for
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`further proceedings consistent with this opinion.
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`I. PROCEDURAL HISTORY
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`These are consolidated interlocutory appeals from a district court order
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`determining a single issue within a thirty-seven-year-old case. The appellants are the
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`Pueblos of Jemez, Santa Ana, and Zia (“the Pueblos”), as well as the United States,
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`on its own behalf and on behalf of the Pueblos (collectively “Appellants”).1 The
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`appellees are the Jemez River Basin Water Users’ Coalition (“the Coalition”) and the
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`State of New Mexico (collectively “Appellees”).
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`This case originated in federal district court in 1983 as an action to allocate
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`water rights in the Jemez River in New Mexico. This litigation presents a myriad of
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`issues, most of which have not yet been resolved by the district court as they are
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`being litigated in stages. For the first stage, each side engaged their own expert on
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`Spanish law, both of whom drafted reports and testified at a three-day evidentiary
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`hearing in front of the magistrate judge. The magistrate judge made proposed
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`findings of fact and issued a recommended disposition, which the district court
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`adopted. The court found that the Pueblos had aboriginal water rights; however, it
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`went on to conclude that the Pueblos’ aboriginal water rights were extinguished by
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`Spain’s assertion of sovereignty over the region in the 1500s. Because this was a
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`critical ruling that would dispose of many of the remaining issues in this case, the
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`parties requested and the district court agreed to certify that discrete issue to us for
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`interlocutory appeal.
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`II.
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`JURISDICTION
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`The United States and the Pueblos followed the proper procedure to invoke
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`this court’s jurisdiction under 28 U.S.C. § 1292(b), which permits interlocutory
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`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.
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`review of an otherwise unappealable order “[w]hen a district judge . . . [is] of the
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`opinion that such order involves a controlling question of law as to which there is
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`substantial ground for difference of opinion and that an immediate appeal from the
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`order may materially advance the ultimate termination of the litigation.”
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`A. Certified Question
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`“Interlocutory appeals originate from the district court’s order itself, not the
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`specific question certified by the district court or the specific question framed by the
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`appellant. An appellate court can and should address a different legal question if it
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`controls the disposition of the certified order.” Paper, Allied-Indus., Chem. &
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`Energy Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d 1285, 1291 (10th Cir.
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`2005) (internal citation omitted); see Yamaha Motor Corp., U.S.A. v. Calhoun, 516
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`U.S. 199, 205 (1996) (explaining that “the appellate court may address any issue
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`fairly included within the certified order because it is the order that is appealable”
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`(quotations omitted)). However, “[t]he court of appeals may not reach beyond the
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`certified order to address other orders made in the case.” Yamaha Motor Corp., 516
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`U.S. at 205. Thus, “the correct test for determining if an issue is appropriate for
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`interlocutory review is (1) whether that issue was raised in the certified order; and
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`(2) whether the issue can control the disposition of the order.” Paper, Allied-Indus.,
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`Chem. & Energy Workers, 428 F.3d at 1291.
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`This case has a long procedural history, and as the arguments raised on appeal
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`indicate, there are still many open issues. Almost none of these issues, however, are
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`Appellate Case: 18-2164 Document: 010110415622 Date Filed: 09/29/2020 Page: 8
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`appropriate for our interlocutory review. To determine which issues are
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`appropriately before us, we must look to the certified order.
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`This litigation is proceeding piecemeal. When settlement negotiations fell
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`through in 2012 and trial preparation actively began, the parties and the court agreed
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`that there were five threshold legal issues that needed to be decided before the parties
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`could properly prepare for trial. Thus, the litigation continued with the five issues
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`being briefed, argued, and decided in stages.
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`This appeal arises from the first stage, in which the parties briefed and argued
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`the first issue (which included three sub-issues), and the second issue.2 However, the
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`district court’s order decided only the first issue:
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`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
`United States?
`The district court, adopting the magistrate judge’s findings and
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`recommendations, determined that the Pueblos did, at one point, possess aboriginal
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`water rights to the Jemez River in connection with their aboriginal title. No party
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`disputes this determination.
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`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.
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`After finding that the Pueblos had established aboriginal water rights, the
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`district court then determined that, during the time of Spanish sovereignty, the
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`Spanish crown extinguished those rights, stating:
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`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.
`(App’x 287.)
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`In doing so, the district court deemed the first issue’s three sub-issues were
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`mooted by its ruling that Spain had extinguished the Pueblos’ water rights.3 Along
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`the same lines, the second issue asks whether the Winans doctrine is applicable.4
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`United States v. Winans, 198 U.S. 371, 381 (1905) (recognizing aboriginal rights
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`reserved to the tribe and not granted in a treaty). Because Winans rights are
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`essentially recognized aboriginal rights, the second issue was resolved by the court’s
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`finding that the Pueblos’ aboriginal rights had been extinguished by Spain. Thus,
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`because neither the resolutions of the sub-issues nor the resolution of the second
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`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
`trust lands?
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`issue could control the disposition of the district court’s order, none of these issues is
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`appropriate for interlocutory review.
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`In finding that Spain extinguished the Pueblos’ aboriginal water rights, the
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`district court’s certified order explicitly found that “Spain allowed the Pueblos to
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`continue their use of water, and did not take any affirmative act to decrease the
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`amount of water the Pueblos were using.” (App’x 287 (emphasis added).). Because
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`our jurisdiction is controlled by the certified order presented to us, see Yamaha
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`Motor Corp., 516 U.S. at 205, we accept this conclusion by the district court for
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`purposes of our analysis.
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`When certifying this ruling for our review, the district court again noted that
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`“[t]he issue of whether the Pueblos’ aboriginal water rights were extinguished by the
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`imposition of Spanish authority without any affirmative act was raised in the Court’s
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`Order.” (App’x 276 (emphasis added).) Moreover, both of the Appellants’ petitions
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`for permission to appeal framed the issue as extinguishment of aboriginal water
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`rights without affirmative action. Although we look to the district court’s certified
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`order, and “not the specific question certified by the district court or the specific
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`question framed by the appellant,” Paper, Allied-Indus., Chem. & Energy Workers,
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`428 F.3d at 1291, our task is made easier here because the same question is presented
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`by all of them.
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`Thus, the controlling question of law in this appeal is whether aboriginal water
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`rights can be extinguished by the imposition of sovereign authority without any
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`affirmative act.
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`B. Issues Not Properly Before This Court
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`In light of this litigation’s long and fragmented history, and the arguments
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`made in this appeal, we find it prudent explicitly to mention a few specific issues that
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`are not before us.
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`First, the quantification of the Pueblos’ water rights is not before us. While
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`this is an important question in the overall litigation, the current quantification of any
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`remaining aboriginal water rights was not raised in the district court’s certified order
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`and could in no way control its disposition because the order found that there were no
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`existing aboriginal water rights. Moreover, the proper standard for quantifying any
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`such rights is the subject of the third of the district court’s five stated issues, which
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`have not been brought before us by this interlocutory appeal. While this question
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`may be before us one day, today is not that day.
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`Second, and relatedly, there are many types of water rights; here, we consider
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`only aboriginal rights. The Pueblos may claim other types of water rights in this
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`litigation, but those were not before the court below in this limited proceeding, and
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`they are not before us either.
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`Third, no actions taken by Mexico or the United States are before us.
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`Although those actions were before the district court, the district court determined
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`that the Pueblos’ aboriginal water rights were extinguished by Spain before either
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`Mexico or the United States took sovereignty over the Pueblos’ land. Thus, as
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`explained above, any actions taken by Mexico or the United States were mooted by
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`that determination.
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`None of the above-mentioned issues was raised by the certified order, and thus
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`they are not properly before us for consideration on interlocutory review. In sum, we
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`have jurisdiction to address only the controlling question of law presented by the
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`order below: Whether, as a matter of law, a sovereign can extinguish aboriginal
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`rights to water by the mere imposition of its authority over such water without any
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`affirmative act.
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`III. STANDARD OF REVIEW
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`When faced with a question of law, our review is de novo; when faced with a
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`question of fact, our review is for clear error. Highmark Inc. v. Allcare Health
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`Mgmt. Sys., Inc., 572 U.S. 559, 563 (2014). However, “[o]ur review of mixed
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`questions of law and fact will be ‘under the clearly erroneous or de novo standard,
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`depending on whether the mixed question involves primarily a factual inquiry or the
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`consideration of legal principles.’” Roberts v. Printup, 595 F.3d 1181, 1186 (10th
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`Cir. 2010) (quoting Estate of Holl v. Comm’r, 54 F.3d 648, 650 (10th Cir.1995)).
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`“Where a mixed question primarily involves the consideration of legal principles,
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`then a de novo review by the appellate court is appropriate.” Osage Nation v. Irby,
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`597 F.3d 1117, 1122 (10th Cir. 2010).
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`The question of whether Spain extinguished the Pueblos’ aboriginal water
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`rights is ordinarily a mixed question of fact and law, as it requires the application of
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`facts to the legal standard for extinguishment.5 Here, however, the district court
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`determined that Spain extinguished the Pueblos’ aboriginal water rights by the
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`imposition of Spanish law. Thus, the issue here is the extent and impact of Spanish
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`law. A court’s determination about foreign law “must be treated as a ruling on a
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`question of law,” rather than as a ruling on a question of fact. Fed. R. Civ. P. 44.1;
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`see Grimm v. Comm’r, 894 F.2d 1165, 1166 (10th Cir. 1990) (applying de novo
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`review to the lower court’s interpretation of Philippine law). As such, the district
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`court’s determination that the imposition of Spanish law extinguished the Pueblos’
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`aboriginal water rights is reviewed de novo.
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`IV. BACKGROUND
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`Before turning to the discrete question before us, we provide an overview of
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`both Spanish sovereignty in the 1500s and aboriginal title.
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`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
`rights.
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`A. Spanish Sovereignty and the Pueblos6
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`Spain arrived in the Jemez River Basin in 1598, bringing with it its concept of
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`regalía, the royal prerogative. This was “the political theory of the colonial period
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`. . . that held that the crown exercised supreme power over the administration,
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`licensing, and adjudication of certain spheres of activity and kinds of resources.”
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`(App’x 382.) The natural resources that fell within the Spanish crown’s regalía
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`“included lands, fields, woodlands, pasturage, rivers, and public waters,” which were
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`known as “realengas.” (Id.) As to the realengas, the crown could “grant, with
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`whatever limitation it might deem to be convenient, private or communal domain to
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`individuals, towns and villages.” (Id. 383.) “It bears noting, too, that while the
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`crown insisted in principle on the right of regalía to intervene judicially to allocate
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`water, it did not always do so, especially when there existed no conflict that required
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`adjudication.” (Id.) The crown bestowed its prerogative to local authorities “to
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`oversee the distribution of unused or unoccupied lands and other resources in the
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`New World.” (Id.) The direction given to local authorities in the distribution of the
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`realengas “typically called for Indian property and resources to be respected.” (Id.)
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`The Spanish protection of Indian rights can be traced all the way back to the
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`codicil of Queen Isabella’s will, drafted in 1504, “in which she admonishes her
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`husband and soon-to-be heirs . . . to make sure that they protect the Indians and their
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`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.)
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`persons and their possessions.” (Id. 609.) Spain also issued a number of informal
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`and formal laws, which were combined to create the Recopilación de Indias, “a
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`compilation of laws issued by the crown and laws viewed broadly; Royal cedulas,
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`letters, instructions, so on and so forth,” and applied to the Spanish colonies. (Id.
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`610.) A number of laws within the Recopilación de Indias address the distribution or
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`combining of lands, and it is repeatedly stated that, in undertaking these actions,
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`Indians should be left their land and any resources that they may need. (Id. 372.)
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`Hence, the Spanish crown was protective of Indian property rights.
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`When Spain arrived in what is now Mexico, and throughout the years of
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`Spanish sovereignty in the region, “the Spaniards continued to consider Indians as
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`original owners of their property, as well as to recognize their native government.”
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`(Id.; id. 380 (“[T]here is no documentary evidence that Spanish magistrates forced
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`Pueblos to allot lands and water within their communities in a particular way.”)). In
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`sum, there was “a special, sometimes preferential, status for Indians under Spanish
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`rule.” (Id. 388 (quoting William Taylor, Land and Water Rights in the Viceroyalty of
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`New Spain, 50 N.M. Hist. Rev. 189, 191 (1975).)
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`It was within Spain’s regalía, “that is the prerogative of the crown, to ensure
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`effective use of water. That didn’t mean that it always exercised its prerogative, but
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`it did have that prerogative.” (Id. 617.) There were two main principles guiding
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`Spain’s control of water. First, public waters were held in common and shared by
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`everyone. (Id. 631.) Second, “one could not use public waters to the detriment of
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`other users.” (Id. 632.) Spain ensured the effective use of water in a number of
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`ways, including a process called a “repartimiento7 de aguas,” similar in concept to the
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`water adjudication underlying this appeal. (Id. 329.) “The repartimiento de aguas
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`might take several forms, and it occurred only when there was more than one user of
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`a source of water.” (Id.) Without conflict, a formal repartimiento would not take
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`place; “[s]uch was the situation in the Jemez Valley watershed with respect to the
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`Pueblos of Jemez, Zia, and Santa Ana.” (Id.)
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`When a repartimiento was undertaken, a government official would apply six
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`factors to each party claiming water—(1) prior use, (2) need, (3) purpose of use,
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`(4) legal rights, (5) injury to third parties, and (6) equity and the common good—and
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`then allocate the water accordingly. (Id. 636.) While twenty-two repartimientos
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`were undertaken in central Mexico, there was only one known repartimiento in New
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`Mexico, which took place in Taos in 1823, during the time of Mexican sovereignty.
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`(Id. 617.) “No repartimientos of water were ever made by Spanish or Mexican
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`authorities regarding the Jemez Valley waters used by Jemez, Zia, and Santa Ana.
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`Thus, the governments of Spain and Mexico took no action to intervene in the uses
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`that these Pueblos made of their water supply; nor did Spain or Mexico act to reduce
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`or modify such use.” (Id. 395.)
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`B. Aboriginal Title
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`Aboriginal title “refers to land claimed by a tribe by virtue of its possession
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`and exercise of sovereignty rather than by virtue of letters of patent or any formal
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`7 “Repartimiento” translates to “distribution.”
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`conveyance.” 1 Cohen's Handbook of Federal Indian Law § 15.04 (2019).8 The
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`concept of aboriginal title, sometimes called “Indian title” or “native title,” comes
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`from a recognition that the property rights of indigenous people persist even after
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`another sovereign assumes authority over the land. See Uintah Ute Indians of Utah
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`v. United States, 28 Fed. Cl. 768, 784 (1993). Aboriginal title was recognized by all
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`European sovereigns and the United States, and “is considered as sacred as the fee
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`simple of the whites.” Mitchel v. United States, 34 U.S. 711, 746 (1835); see
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`Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. 543, 574 (1823).
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`Whether a tribe had aboriginal title is a question of fact; a tribe must prove that
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`it had “actual, exclusive and continuous use and occupancy for a long time.” Uintah
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`Ute Indians of Utah, 28 Fed. Cl. at 784. Once established, however, aboriginal title
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`remains until it is extinguished, and “[a]s against any but the sovereign, original
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`Indian title was accorded the protection of complete ownership.” United States v.
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`Alcea Band of Tillamooks, 329 U.S. 40, 46 (1946).
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`The district court found that the Pueblos had established aboriginal rights. No
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`party challenges that finding on appeal, so we focus our analysis on whether those
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`rights were extinguished. See supra n.6.
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`Extinguishing aboriginal rights is complicated; aboriginal rights can only be
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`extinguished by the sovereign. See Oneida Indian Nation v. Cty. of Oneida (“Oneida
`
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`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–
`9 (1956).
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`I”), 414 U.S. 661, 667 (1974). A sovereign can extinguish aboriginal title “by treaty,
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`by the sword, by purchase, by the exercise of complete dominion adverse to the right
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`of occupancy, or otherwise.” Santa Fe Pac. R.R. Co., 314 U.S. at 347. No matter the
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`method used, the sovereign’s intent to extinguish must be clear and unambiguous;
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`“an extinguishment cannot be lightly implied in view of the avowed solicitude of the
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`Federal Government for the welfare of its Indian wards.” Id. at 354.
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`Moreover, “if there is doubt whether aboriginal title has been validly
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`extinguished by the United States, any ‘doubtful expressions, instead of being
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`resolved in favor of the United States, are to be resolved in favor of’ the Indians.”
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`Pueblo of Jemez v. United States, 790 F.3d 1143, 1162 (quoting Santa Fe Pac. R.R.
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`Co., 314 U.S. at 354). “[T]he actual act (or acts) of extinguishment must be plain
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`and unambiguous. In the absence of a clear and plain indication in the public records
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`that the sovereign intended to extinguish all of the rights in their property, Indian title
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`continues.” Lipan Apache Tribe v. United States, 180 Ct. Cl. 487, 492 (1967)
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`(quotations and alteration omitted) (quoting Santa Fe Pac. R.R. Co., 314 U.S. at 353).
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`The leading case on extinguishment is United States v. Santa Fe Pacific
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`Railroad Co., 314 U.S. 339 (1941). There, the United States (as guardians for the
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`Walapai Tribe) brought suit to enjoin the Railroad from interfering with the
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`Walapais’ aboriginal title. The Railroad asserted that it had full title to the land,
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`unencumbered by the Walapais’ aboriginal title, pursuant to a land grant in an 1866
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`congressional act which stated that the “United States shall extinguish, as rapidly as
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`may be consistent with public policy and the welfare of the Indians, and only by their
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`voluntary cession, the Indian title to all lands falling under the operation of this act.”
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`Id. at 344. After determining that the grant to the Railroad did not itself extinguish
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`the Walapais’ title, the court addressed whether the Walapais’ title had been
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`extinguished prior to the 1866 grant. Before doing so, the court reiterated the United
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`States’ exclusive right to extinguish aboriginal title, “whether it be done by treaty, by
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`the sword, by purchase, by the exercise of complete dominion adverse to the right of
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`occupancy, or otherwise.” Id. at 347.
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`The court looked to a number of congressional acts to determine if those acts
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`extinguished the Walapais’ title. The court first looked to the Act of February 27,
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`1851, which extended the Indian Trade and Intercourse Act of June 30, 1834, to
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`cover the tribes in Arizona and New Mexico. Id. Because the 1851 Act “plainly
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`indicate[d] that in 1851 Congress desired to continue in these territories the
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`unquestioned general policy of the Federal government to recognize such r