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Court weighs tribes’ aboriginal water claims for Jemez River

September 30, 2020 GMT

ALBUQUERQUE, N.M. (AP) — A decades-long battle over a northern New Mexico river has taken another turn, as a panel of federal appellate judges has reversed a lower court ruling by determining that the aboriginal rights of Indigenous communities were not extinguished by Spain when it took control centuries ago of what is now the American Southwest.

The question before the 10th U.S. Circuit Court of Appeals was whether the mere extension of Spanish authority over the territory was enough to extinguished the water rights of the Jemez, Zia and Santa Ana pueblos.

In a split ruling published Tuesday, a three-judge panel found that Spain did not take any formal action — such as reducing or altering water use — and therefore never extinguished the pueblos’ rights to the Jemez River.

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Parties in the case have argued that settling that point could affect the outcome of the litigation.

While the court acknowledged that there still were numerous legal issues to be decided before the parties can prepare for trial, Judge Timothy M. Tymkovich wrote in a dissenting opinion that other factors should have been considered to avoid piecemeal appeals on issues that are intertwined.

He warned that while the majority determined the pueblo’s rights were not extinguished, it does not mean the pueblos now have limitlessly expanding water rights. He pointed to an 1848 treaty with the U.S. government that recognized the pueblos’ right to water was limited to that which was actually used.

“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,” he wrote.

The case began in 1983 as an action to allocate water rights along the Jemez River. As part of the proceedings, the parties had experts on Spanish law draft reports and testify. Under the lower court’s determination, Spain’s assertion of sovereignty over the region in the 1500s effectively extinguished the pueblo’s aboriginal water rights.

Citing Spain’s concept of regalía, or the royal prerogative, the majority opinion stated that when Spain arrived in the New World it bestowed its prerogative to local authorities to oversee the distribution of unused or unoccupied lands and other resources. The direction given to local authorities typically called for Indigenous property and resources to be respected, and there was no documentary evidence that Spanish magistrates forced pueblos to allot lands or water within their communities in a particular way.

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The court record also suggested that Spain’s control of water was guided by two main principles — that public waters were held in common and shared by everyone and that no one could use public waters to the detriment of other users. If there were conflicts, Spanish authorities would allocate water in process known as “repartimiento de aguas.”

“Although Spain possessed the right to conduct repartimientos to allocate water, it never exercised that right as to the pueblos here. There is no showing that Spain clearly intended to extinguish the rights of these specific pueblos,” the ruling stated.

Tymkovich said the district court will have to weigh the rights of non-pueblo users — some of which date back to the late 1700s and were in place for nearly two centuries before the pueblos began their legal challenge.

“Such settled expectations and the passage of so much time may mean that the pueblos’ aboriginal water rights, while not extinguished, have necessarily been modified in such a way as to preclude the pueblos’ expanding or future use claims,” he wrote.