On September 29, 2020, the Pueblos of Santa Ana, Jemez, and Zia secured a major victory from the Tenth Circuit Court of Appeals in United States v. Abousleman, No. 18-2164, which overturned the District Court's ruling that the Pueblos' aboriginal water rights in the Jemez River Basin had been completely extinguished by Spain's exercise of dominion over water in New Mexico.
Based on a careful review of federal case law, the Tenth Circuit ruled that the Pueblos' aboriginal water rights could only be extinguished by a “clear and adverse affirmative action” by the sovereign. The Court further found that there was no indication or evidence that Spain intended to extinguish any aboriginal rights of the three Pueblos. The Opinion is available here. Rothstein Donatelli represents the Pueblo of Santa Ana in this case. Partner Richard Hughes and associate Reed Bienvenu prepared the brief for the Pueblos, and Hughes argued the case in the court of appeals.
This decision is an important win for the Pueblos, the United States, and for all pueblos in New Mexico. Not only does it undo the District Court's incorrect determination that the Pueblos' aboriginal water rights had been fully extinguished by the mere existence of Spanish control over New Mexico, it also clarifies the high threshold that must be met for a finding of extinguishment: the sovereign must not only take an affirmative action, but the intent of the sovereign to extinguish aboriginal title must be clear and plain.
The Abousleman case is a general stream adjudication of the Jemez River Basin that began in 1983. It is hoped that the Tenth Circuit's ruling will allow the parties to move on to the next phase of this case, which will include quantifying the Pueblos' water rights.
Further coverage of the decision can be found here: