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United States v. Abouselman.

No. 18-2164 & 2167. D.N.M. Judge Ebel. Pueblo Water Rights—Aboriginal Water Rights—Extinguishment By Sovereign Authority—Interlocutory Appeal.

September 28, 2020


This litigation began in 1983 as an action to allocate water rights of the Pueblos of Jemez, Santa Ana, and Zia in the Jemez River in New Mexico. The litigation presents a myriad of issues that are being litigated in stages. This appeal is from the district court’s determination that the Pueblos’ aboriginal water rights were extinguished by Spain’s assertion of sovereignty over the region in the 1500s. Because this is a critical ruling that could dispose of many remaining issues, the issue was certified and accepted for interlocutory appeal. The controlling question is whether aboriginal water rights can be extinguished by the imposition of sovereign authority without any affirmative act.

It is undisputed that the Pueblos possessed aboriginal water rights to the Jemez River in connection with their aboriginal title. In finding that the aboriginal water rights were extinguished, the district court 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. The Tenth Circuit held that aboriginal rights can only be extinguished by a sovereign’s affirmative act. An intent to extinguish can only be found when there is affirmative sovereign action focused at a specific right held by an Indian tribe that was intended to have, and had, a sufficiently adverse impact on the right at issue. Here, while Spain had the authority to undertake water rights adjudications in the case of conflicts, no such adjudication was ever made by Spanish or Mexican authorities regarding the Jemez Valley waters used by the Pueblos. Accordingly, there was no indication that Spain intended to extinguish any aboriginal rights of the three Pueblos. Further, there was no evidence that the Pueblos ever decreased their water usage or were unable to increase their usage.

The order was reversed and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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