Court ruling aids pueblo water rights

Jemez River decision reestablishes aboriginal water rights for 3 pueblos

BY THERESA DAVIS

JOURNAL STAFF WRITER

When Spanish conquistadors established settlements in what is now New Mexico, they likely had no idea their actions would be cited centuries later in legal arguments over water rights.

On Tuesday, the 10th Circuit Court of Appeals issued an opinion in United States v. Abousleman, overturning a District Court ruling that Spain and Mexico had extinguished aboriginal water rights for the pueblos of Santa Ana, Zia and Jemez in the Jemez River Basin.

It’s a big step in a decades-long legal battle to define and quantify pueblo water rights, said Rich-

ard Hughes, a Santa Fe lawyer representing Santa Ana Pueblo in the case.

“I view it as a major advance in the area of Indian water rights law,” Hughes said. “It’s a ruling unique to the pueblo context, but nonetheless an extremely important development in Indian water law.”

Tribal reservations established by the U.S. government have “Winters” water rights, named for a 1908 Supreme Court case.

But pueblos in New Mexico are unique. Pueblo land was not divided into reservations by the United States, so pueblos cannot claim Winters rights.

Instead, pueblos have “aboriginal water rights,” acquired by continuous and exclusive occupancy and use of the land.

Hughes compared tribal property rights to a bundle of sticks.

“For example, there’s the right to develop minerals, to grant easements, to lease land, and the right to use water — that’s by far one of the most important of the sticks in the bundle,” he said. “Other courts have held that an aboriginal title to land includes a right to the use of pertinent water sources to fulfill the needs of the tribal occupants.”

The Abousleman case was originally filed in 1983 by the U.S. government, which claimed non-Indian parties were infringing on pueblo water rights along the Jemez River.

Settlement negotiations fell through in 2012.

In 2016, a district judge found that the three pueblos had aboriginal water rights. But the court held that when Spain extended sovereignty over the area in 1598, the water administration system extinguished those rights.

The pueblos and the U.S. Department of Justice appealed that ruling.

Tuesday’s opinion overturns the ruling by concluding there is no evidence that the Spanish crown or the Mexican government forced pueblos to change how they allocated water.

The Spanish government used a process called repartimiento de aguas to solve water disputes in its territories. But a repartimiento never took place on the Jemez River, indicating that neither Spain nor Mexico took issue with pueblo water use.

“Nor is there any evidence in the experts’ reports or testimony that Spain’s water administration system was adverse to the Pueblos, as it never actually ended the Pueblos’ exclusive use of water or limited their use in any way,” the Tuesday opinion says. “… There is no evidence that the Pueblos ever decreased their water usage or were unable to increase their usage. Indeed, there is no evidence that Spanish sovereignty had any impact on the Pueblos’ use of the water from the Jemez River at all.”

A dissenting opinion by Judge Timothy Tymkovich accompanies Tuesday’s majority opinion. Tymkovich took issue with the court making a decision about aboriginal water rights before quantifying how much water those rights would allocate to the Jemez River pueblos.

“It is problematic to decide whether the Pueblos have aboriginal water rights entitling them to an as-yet-undefined right to expanding or future uses, without also considering the implications for the many other water users on the Jemez, some of whose water rights date to Spanish colonial rule, to say nothing of water users on the Rio Grande, on which other Pueblos may claim a similar aboriginal right to expanding or future uses,” Tymkovich wrote.

In the recent Aamodt litigation settlement involving other northern New Mexico pueblos, the court held that aboriginal water rights include the right to sufficient water for present and future needs.

“Eventually, we’ll get to the issue of the measure of aboriginal water rights, which will be a hard-fought and complex period in litigation,” Hughes said. “If that (District Court) ruling had stood and we had continued based on that ruling, we’d be totally at sea. We would have had to prove what water they were using in the 1800s, and that would have left us high and dry, as it’s extremely difficult to reconstruct tribal water use for that time.”

Theresa Davis is a Report for America corps member covering water and the environment for the Albuquerque Journal.