USA For Jemez, Santa, et al v. Abousleman, et al
Filing
4506
MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs. Related document(s): 4476 Brief, 4475 Brief. (cab)
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, on its
own behalf and on behalf of the
PUEBLOS OF JEMEZ, SANTA ANA, and ZIA,
and
STATE OF NEW MEXICO, ex rel.
State Engineer,
Plaintiffs,
No. 6:83-cv-01041-KWR-JMR
JEMEZ RIVER ADJUDICATION
and
THE PUEBLOS OF JEMEZ, SANTA ANA, and ZIA,
Plaintiffs-in-Intervention,
v.
TOM ABOUSLEMAN, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER REGARDING ISSUES 1 AND 2
Plaintiffs seek an adjudication of the rights to the use of waters of the Jemez River stream
system. See N.M. Stat. Ann. § 72-4-19 (upon adjudication of the water rights, a decree shall be
prepared which declares, “as to the water right adjudged to each party, the priority, amount,
purpose, periods and place of use, and as to water used for irrigation, except as otherwise
provided in this article, the specific tracts of land to which it shall be appurtenant, together with
such other conditions as may be necessary to define the right and its priority”).
This case was stayed for about five years, from 2007 until early in 2012, while the United
States, the Pueblos of Jemez, Santa Ana and Zia, the State of New Mexico and the Jemez River
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 2 of 26
Basin Water Users Coalition (“Coalition”) (collectively “the Parties”) pursued settlement
negotiations. The Parties returned to litigation after the negotiations broke down in 2012. The
Parties identified five threshold legal issues to be addressed before the Court could determine the
Pueblos' water rights:
Issue No. 1:
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?
Sub-issue:
Did the Acts of 1866, 1870 and 1877 have any effect on the
Pueblos’ water rights and, if so, what effect?
Sub-issue:
Did the Pueblo Lands Acts of 1924 and 1933 have any effect on
the Pueblos’ water rights and, if so, what effect?
Sub-issue:
Did the Indian Claims Commission Act have any effect on the
Pueblos’ water rights and, if so, what effect?
Issue No. 2:
Does the Winans doctrine 1 apply to any of the Pueblos’ grant or trust
lands?
Issue No. 3:
If the Pueblos have aboriginal water rights or Winans reserved water
rights, what standards apply to quantify such rights?
Issue No. 4:
Do the Pueblos have Winters reserved rights 2 appurtenant to their trust
lands and, if so, how are those rights to be measured?
1
The Winans doctrine is discussed below.
Winters reserved rights refer to the water rights arising under the implied reservation doctrine
first announced in Winters v. United States, 207 U.S. 564 (1908).
2
Winters rights spring from government reservations of land for Indians. The
scope and nature of Winters rights are a function of the purposes of the
reservation. These purposes are usually the government’s--especially for
reservations established after 1871, when the government declined to enter into
bilateral treaties, because the defining characteristic of Winters rights is that they
reserve water for new uses, as reserving land for the Indians was to make the
“nomadic and uncivilized” tribes into pastoral agrarians. Fulfilling this goal
required water. The Winters doctrine supplied the necessary water through the
2
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 3 of 26
Issue No. 5:
Are the Pueblos entitled to any riparian rights?3
Doc. 4237 at 2-3, filed April 13, 2012; Doc. 4239 at 2-3, filed April 13, 2012.
After a three-day evidentiary hearing, United States Magistrate Judge William P. Lynch
having considered the briefs of the parties, the testimony and expert reports of the expert witness
for the United States and Pueblos, Charles R. Cutter, Ph.D., and the expert witness for the State,
Professor G. Emlen Hall, and relevant law, entered his Proposed Findings and Recommended
Disposition Regarding Issues 1 and 2 recommending that “the Court find that the Pueblos
possessed aboriginal water rights prior to the Spanish occupation of New Mexico, but conclude
that the Spanish crown exercised complete dominion and control over New Mexico in a manner
adverse to the Pueblos and thus extinguished the Pueblos’ aboriginal water rights.” Doc. 4383
at 1, filed October 4, 2016.
United States District Judge Martha Vázquez adopted the Judge Lynch’s findings and
recommendations regarding Issue No. 1 stating that the Spanish crown extinguished the Pueblos’
aboriginal rights by exercising complete dominion over the determination of the right to use
public waters and intended to extinguish the Pueblos’ right to increase their use of public waters
without restriction. See Doc. 4397, filed September 30, 2017. Judge Vázquez later granted the
Pueblos’ and the United States’ motions to certify the Court’s September 30, 2017, Order for
interlocutory appeal. See Doc. 4421, filed September 11, 2018. In December 2020, the Tenth
government’s implied intent to reserve, along with the arid land, sufficient water
to transform the Indians from hunters and gatherers into farmers.
2 Waters and Water Rights § 37.02(a)(1) (3d ed. 2011).
3
The United States and the Pueblos later indicated they are not asserting that the Pueblos are
entitled to riparian rights. See Mem. Op. and Order at 3, Doc. 4293, filed December 20, 2012
(stating the Court will not determine whether the Pueblos are entitled to riparian rights).
3
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 4 of 26
Circuit Court of Appeals reversed the Court's determination regarding Issue No. 1. See Mandate,
Doc. 4429, filed December 28, 2020.
The Court ordered the Parties to file briefs regarding the schedule for addressing the
issues remaining due to the Tenth Circuit’s decision. See Doc. 4441, filed June 2, 2021. The
Pueblos of Jemez and Zia, the United States, the State of New Mexico and the Jemez River
Basin Water Users Coalition ("Coalition") stated they had been in settlement negotiations for
several years, have achieved substantial progress, believe it would be counterproductive to
settlement efforts to prepare legal briefs during negotiations and expected that they can complete
a settlement document by early 2022 for submission to New Mexico's Congressional delegation
for introduction in the first half of 2022. The Court granted a stay of litigation until February 22,
2022, with initial supplemental briefs due on March 1, 2022. See Doc. 4452, filed October 28,
2021. The Court later extended the stay and reset supplemental briefing on Issues No. 1 and No.
2 to be completed in November 2022. See Doc. 4470, filed June 3, 2022.
In its opening supplemental brief on Issues 1 and 2, the Pueblo of Santa Ana notified the
Court that:
The Pueblos of Jemez and Zia have negotiated a settlement of their claims, that
must be approved by Congress, and they have entered into an agreement with the
State and the non-Indian Coalition that they would not seek to change their
positions in the settlement, regardless of the outcome of this case. They are thus
not participating actively in this phase of this proceeding.
Doc. 4475 at 1, n.1, filed September 7, 2022.
THE TENTH CIRCUIT’S DECISION
The Tenth Circuit began by providing an overview of Spanish sovereignty:
Spain arrived in the Jemez River Basin in 1598, bringing with it its concept of
regalía, the royal prerogative. This was “the political theory of the colonial period
4
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 5 of 26
... that held that the crown exercised supreme power over the administration,
licensing, and adjudication of certain spheres of activity and kinds of resources.”
(App'x 382.) The natural resources that fell within the Spanish crown's regalía
“included lands, fields, woodlands, pasturage, rivers, and public waters,” which
were known as “realengas.” (Id.) As to the realengas, the crown could “grant,
with whatever limitation it might deem to be convenient, private or communal
domain to individuals, towns and villages.” (Id. 383.) “It bears noting, too, that
while the crown insisted in principle on the right of regalía to intervene judicially
to allocate water, it did not always do so, especially when there existed no conflict
that required adjudication.” (Id.) The crown bestowed its prerogative to local
authorities “to oversee the distribution of unused or unoccupied lands and other
resources in the New World.” (Id.) The direction given to local authorities in the
distribution of the realengas “typically called for Indian property and resources to
be respected.” (Id.)
....
It was within Spain's regalía, “that is the prerogative of the crown, to ensure
effective use of water. That didn't mean that it always exercised its prerogative,
but it did have that prerogative.” (Id. 617.) There were two main principles
guiding Spain's control of water. First, public waters were held in common and
shared by everyone. (Id. 631.) Second, “one could not use public waters to the
detriment of other users.” (Id. 632.) Spain ensured the effective use of water in a
number of ways, including a process called a “repartimiento de aguas,” similar in
concept to the water adjudication underlying this appeal. (Id. 329.) “The
repartimiento de aguas might take several forms, and it occurred only when there
was more than one user of a source of water.” (Id.) Without conflict, a formal
repartimiento would not take place; “[s]uch was the situation in the Jemez Valley
watershed with respect to the Pueblos of Jemez, Zia, and Santa Ana.” (Id.)
When a repartimiento was undertaken, a government official would apply six
factors to each party claiming water—(1) prior use, (2) need, (3) purpose of use,
(4) legal rights, (5) injury to third parties, and (6) equity and the common good—
and then allocate the water accordingly. (Id. 636.) ... “No repartimientos of water
were ever made by Spanish or Mexican authorities regarding the Jemez Valley
waters used by Jemez, Zia, and Santa Ana. Thus, the governments of Spain and
Mexico took no action to intervene in the uses that these Pueblos made of their
water supply; nor did Spain or Mexico act to reduce or modify such use.” (Id.
395.)
United States v. Abouselman,4 976 F.3d 1146, 1154-55 (2020).
4
“The correct spelling is ‘Abousleman.’” New Mexico’s Response at 2 n.1, Doc. 4485, filed
5
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 6 of 26
The Tenth Circuit also provided an overview of aboriginal title:
Aboriginal title “refers to land claimed by a tribe by virtue of its possession and
exercise of sovereignty rather than by virtue of letters of patent or any formal
conveyance.” 1 Cohen's Handbook of Federal Indian Law § 15.04 (2019). The
concept of aboriginal title, sometimes called “Indian title” or “native title,” comes
from a recognition that the property rights of indigenous people persist even after
another sovereign assumes authority over the land. See Uintah Ute Indians of
Utah v. United States, 28 Fed. Cl. 768, 784 (1993). Aboriginal title was
recognized by all European sovereigns and the United States, and “is considered
as sacred as the fee simple of the whites.” Mitchel v. United States, 34 U.S. 9 Pet.
711, 746, 9 L.Ed. 283 (1835); see Johnson & Graham's Lessee v. M'Intosh, 21
U.S. 8 Wheat. 543, 574, 5 L.Ed. 681 (1823).
Whether a tribe had aboriginal title is a question of fact; a tribe must prove that it
had “actual, exclusive and continuous use and occupancy for a long time.” Uintah
Ute Indians of Utah, 28 Fed. Cl. at 784. Once established, however, aboriginal
title remains until it is extinguished, and “[a]s against any but the sovereign,
original Indian title was accorded the protection of complete ownership.” United
States v. Alcea Band of Tillamooks, 329 U.S. 40, 46, 67 S.Ct. 167, 91 L.Ed. 29
(1946).
....
Extinguishing aboriginal rights is complicated; aboriginal rights can only be
extinguished by the sovereign. See Oneida Indian Nation v. Cty. of Oneida
(“Oneida I”), 414 U.S. 661, 667, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). A sovereign
can extinguish aboriginal title “by treaty, by the sword, by purchase, by the
exercise of complete dominion adverse to the right of occupancy, or otherwise.”
Santa Fe Pac. R.R. Co., 314 U.S. at 347, 62 S.Ct. 248. No matter the method
used, the sovereign's intent to extinguish must be clear and unambiguous; “an
extinguishment cannot be lightly implied in view of the avowed solicitude of the
Federal Government for the welfare of its Indian wards.” Id. at 354, 62 S.Ct. 248.
Moreover, “if there is doubt whether aboriginal title has been validly extinguished
by the United States, any ‘doubtful expressions, instead of being resolved in favor
of the United States, are to be resolved in favor of’ the Indians.” Pueblo of Jemez
v. United States, 790 F.3d 1143, 1162 (quoting Santa Fe Pac. R.R. Co., 314 U.S.
at 354, 62 S.Ct. 248). “[T]he actual act (or acts) of extinguishment must be plain
and unambiguous. In the absence of a clear and plain indication in the public
records that the sovereign intended to extinguish all of the rights in their property,
Indian title continues.” Lipan Apache Tribe v. United States, 180 Ct. Cl. 487, 492
October 21, 2022.
6
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 7 of 26
(1967) (quotations and alteration omitted) (quoting Santa Fe Pac. R.R. Co., 314
U.S. at 353, 62 S.Ct. 248).
Abouselman, 976 F.3d at 1155-56.
After discussing federal court decisions that have addressed the extinguishment of
aboriginal rights, the Tenth Circuit stated:
In all cases addressing extinguishment courts have pointed to specific sovereign
action that was directed to a right held by an Indian tribe. They have then looked
at the actual adverse impact of that directed action on the tribal right at issue.
Only when that review has shown a sovereign intent to extinguish an Indian right,
have courts found that an extinguishment was effectuated. An intent to extinguish
can only be found when there is an affirmative sovereign action focused at a
specific right that is held by an Indian tribe that was intended to, and did in fact,
have a sufficiently adverse impact on the right at issue. Plamondon ex rel. Cowlitz
Tribe of Indians, 467 F.2d at 938 (the court looked at the fact that Congress
opened the Cowlitz land for white settlement, but it concluded that the small
number of settlers—the actual adverse impact—was insufficient to extinguish).
Thus, a sovereign cannot extinguish aboriginal rights without affirmatively acting
in a manner adverse to the specific aboriginal rights at issue.
Abouselman, 976 F.3d at 1158.
The Tenth Circuit concluded that “a sovereign must
affirmatively take an action to exercise complete dominion in a manner adverse to the Indians’
right of occupancy sufficient to extinguish aboriginal title.” Abouselman, 976 F.3d at 1155-58.
The Tenth Circuit then explained why Spain’s general administration of its water
administrations system was not adverse to the Pueblos’ aboriginal rights:
There is no indication, let alone a clear and plain indication, that Spain intended to
extinguish any aboriginal rights of these three Pueblos. Spain's general assertion
of governing authority does not indicate any intent to extinguish the Pueblos’
water rights because, in general, Spain respected the Indians and their
possessions. See Felix S. Cohen, Spanish Origin of Indian Rights in the Law of
the United States, 31 Geo. L.J. 1, 9 (1942) (“[T]he humane principles which guide
our own law in Indian affairs all faithfully follow ... the edicts of Spanish kings.”).
Even if we narrow our focus to Spain's system for administering water, this
system was guided by general principles, none of which specifically mention any
Indian tribes, let alone the Pueblos of Jemez, Santa Ana, and Zia. Although Spain
7
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 8 of 26
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, when nothing presented by the
parties indicates that Spain had any issues with the Pueblos’ water use. The
passive implementation of a generally applicable water administration system
does not establish Spain's clear intent to extinguish the aboriginal water rights of
these three Pueblos.
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. A repartimiento
was never undertaken on the Jemez River, and 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. Because Spain's water
administration system had no impact, let alone a negative impact, on the Pueblos’
right to use water, it cannot be said that the system was “adverse” to the Pueblos.
Abouselman, 976 F.3d at 1160.
Sovereignty of Mexico and the United States
The Tenth Circuit summarized Spain’s sovereignty but did not summarize the
sovereignty of Mexico and the United States because:
Third, no actions taken by Mexico or the United States are before us. Although
those actions were before the district court, the district court determined that the
Pueblos’ aboriginal water rights were extinguished by Spain before either Mexico
or the United States took sovereignty over the Pueblos’ land. Thus, as explained
above, any action taken by Mexico or the United States were mooted by that
determination.
None of the above-mentioned issues was raised by the certified order, and thus
they are not properly before us for consideration on interlocutory review.
Abouselman, 976 F.3d at 1153.
Mexico took over sovereignty from Spain “by virtue of the Treaty of Cordova, which was
August 21, 1821.” Cutter Tr. 54. The treaty between Spain and the new Mexican government,
and the Mexican declaration of independence, reaffirmed the principles of the Plan of Iguala.
8
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 9 of 26
See United States v. Ritchie, 58 U.S. 525, 538 (1854). The Plan of Iguala declared that “all the
inhabitants of New Spain, without distinction, whether Europeans, Africans, or Indians, are
citizens of this monarchy,” and that “the person and property of every citizen will be respected
and protected by the [Mexican] government.” Id. “The laws governing land and water rights
during the Mexican period remained substantially the same as during the Spanish colonial era.”
Cutter Report at 71; see also Cutter Tr. at 57 (“the rules in place under the Spanish regime
continued under the Mexican regime”). Mexico ruled the area until it ceded the territory to the
United States in the Treaty of Guadalupe Hidalgo. See 9 Stat. 922 (1848).
“In the Treaty of Guadalupe Hidalgo, the United States agreed to protect rights
recognized by prior sovereigns.” New Mexico v. Aamodt, 537 F.2d 1102, 1108-1109 (10th Cir.
1976).
Scope of the Tenth Circuit’s Opinion
The Tenth Circuit stated:
In sum, we have jurisdiction to address only the controlling question of law
presented by the order below: Whether, as a matter of law, a sovereign can
extinguish aboriginal rights to water by the mere imposition of its authority over
such water without any affirmative act.
Abouselman, 976 F.3d at 1153. After concluding that the sovereign may extinguish aboriginal
rights only after it exercises its authority over its land and resources through clear and adverse
affirmative action, the Tenth Circuit remanded the case to this Court “for further proceedings
consistent with this opinion.” Abouselman, 976 F.3d at 1160.
The Court has reviewed the record, including the evidence and arguments presented to
Judge Lynch, and makes the following determinations.
ABORIGINAL WATER RIGHTS
9
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 10 of 26
The first part of Issue No. 1 asks: “Have the Pueblos ever possessed aboriginal water
rights in connection with their grant or trust lands?” “The district court, adopting the magistrate
judge’s findings and recommendations, determined that the Pueblos did, at one point, possess
aboriginal water rights to the Jemez River in connection with their aboriginal title. No party
disputes this determination.” Abouselman, 976 F.3d at 1152.
Extinguishment and Modification
The second part of Issue No. 1 asks: “have those aboriginal water rights been modified or
extinguished in any way by any actions of Spain, Mexico or the United States?” In addition to
arguing whether the aboriginal water rights have been modified or extinguished, the Parties also
discuss the quantification of those rights. This Order only considers whether the aboriginal
water rights have been modified or extinguished. The Court will consider quantification when it
addresses Issue No. 3: “If the Pueblos have aboriginal water rights or Winans reserved water
rights, what standards apply to quantify such rights?”
The Coalition and the State contend that two Spanish land grants to non-Pueblos
extinguished the Pueblos’ aboriginal rights arguing that Spain’s grants of land to non-Pueblos,
with the implied right to use water from the Jemez River, were affirmative acts that were adverse
to the Pueblos’ aboriginal rights because the Pueblos no longer had the unilateral right to expand
their use of the water from the Jemez River. See Coalition’s Response at 12-17, Doc. 4484, filed
October 21, 2022; State’s Response at 23-26, Doc. 4485, filed October 21, 2022.
The Spanish land grants did not, by themselves, extinguish aboriginal title, if any, to the
water of the Jemez River used by the non-Pueblos because those grants did not decrease the
Pueblos’ water usage and did not make the Pueblos unable to increase their usage. See Pueblo of
10
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 11 of 26
Jemez v. United States, 790 F.3d 1143, 1170 (10th Cir. 2015) (holding that the United States’
grant of land to private landowners “did not by itself extinguish aboriginal title of the Jemez
Pueblo” but also holding there was no evidence that private landowners’ use of the land was
inconsistent with tribe’s occupancy of the land) (emphasis added).
The Court also concludes that Mexico did not extinguish the Pueblos’ aboriginal water
rights. The record shows that:
“No repartimientos of water were ever made by Spanish or Mexican authorities
regarding the Jemez Valley waters used by Jemez, Zia, and Santa Ana. Thus, the
governments of Spain and Mexico took no action to intervene in the uses that
these Pueblos made of their water supply; nor did Spain or Mexico act to reduce
or modify such use.”
Abouselman, 976 F.3d at 1155 (quoting Dr. Cutter’s opinion). The State and the Coalition point
to no evidence in the record that Mexico exercised its authority through clear and adverse
affirmative action to decrease the Pueblos’ use of water or to prevent the Pueblos from
increasing their use of water.
The Pueblo of Santa Ana and the United States contend the Treaty of Guadalupe Hidalgo
did not extinguish the Pueblos’ aboriginal water rights because the Treaty protected the Pueblos’
rights as they existed at the time. See United States’ Supp. Opening Brief at 22-24, Doc. 4476;
Pueblo of Santa Ana’s Supp. Reply Brief at 17-18, Doc. 4489.
The Court concludes that the United States, through the 1848 Treaty of Guadalupe
Hidalgo in which it agreed to protect the rights of Pueblo and non-Pueblo Mexican citizens,
extinguished the Pueblos’ aboriginal water rights, if any, to the water used by non-Pueblo
Mexican citizens.
Only the sovereign may extinguish aboriginal title, whether “by treaty, by the
sword, by purchase, by the exercise of complete dominion adverse to the right of
11
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 12 of 26
occupancy, or otherwise.” Santa Fe, 314 U.S. at 347, 62 S.Ct. 248.
Extinguishment may also result indirectly through “white settlement and use,
authorized by the federal government both statutorily and in fact.” Jemez I,
790 F.3d at 1166 (citing Pueblo of San Ildefonso, 513 F.2d at 1393). But “[n]o
matter the method used, the sovereign's intent to extinguish must be clear and
unambiguous.” United States v. Abouselman, 976 F.3d 1146, 1156 (10th Cir.
2020).
Pueblo of Jemez v. United States, 63 F.4th 881, 891 (10th Cir. 2023) (entered after completion of
briefing by the Parties) (emphasis added). Spain and Mexico allowed non-Pueblos to use the
water for approximately 250 years, from about 1598 until 1848, when, in the Treaty of
Guadalupe Hidalgo, the United States agreed to protect non-Pueblos’ rights recognized by Spain
and Mexico.
Although the Treaty of Guadalupe Hidalgo did not explicitly state it was
terminating the Pueblos’ aboriginal rights to any of the water of the Jemez River that Spain and
Mexico allowed the non-Pueblos to use, the United States’ intent to extinguish the Pueblos’
aboriginal rights to the fraction of the flow used by non-Pueblos, given that the amount of the
total flow of the Jemez River is finite, is clear and unambiguous. See Abouselman, 976 F.3d at
1155 (noting that a main principle guiding Spain’s control of water was that “one could not use
public waters to the detriment of other users” and that a repartimiento, similar in concept to a
water adjudication, occurred only when there was a conflict between users thus indicating that
Spain recognized the limited amount of water available in the Jemez River). The non-Pueblos’
use of that water is inconsistent with the Pueblos’ use of that water.
First Sub-issue to Issue 1: Did the Acts of 1866, 1870 and 1877 have any effect on the
Pueblos’ water rights, and if so, what effect?
The Act of 1866 is titled “An Act granting the Right of Way to Ditch and Canal Owners
over the Public Lands, and for other Purposes.” Act of July 26, 1866, 14 Stat. 251. The Act of
1866 declared the mineral lands of the public domain to be free and open to exploration and
12
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 13 of 26
occupation by citizens and other persons. See Act of 1866, Sec. 1. The Act of 1870 amended
the Act of 1866. See Act of July 9, 1870, 16 Stat. 217. The Act of 1866 as amended by the Act
of 1870, codified at 43 U.S.C. § 661, provides:
Whenever, by priority of possession, rights to the use of water for mining,
agricultural, manufacturing, or other purposes, have vested and accrued, and the
same are recognized and acknowledged by the local customs, laws, and the
decisions of courts, the possessors and owners of such vested rights shall be
maintained and protected in the same; and the right of way for the construction of
ditches and canals for the purposes herein specified is acknowledged and
confirmed . . .
All patents granted, or preemption or homesteads allowed, shall be subject to any
vested and accrued water rights, or rights to ditches and reservoirs used in
connection with such water rights, as may have been acquired under or
recognized by this section.
43 U.S.C. § 661. The Act of 1877 provided for the sale of desert lands in New Mexico and other
States and Territories. See Act of March 3, 1877, 19 Stat. 377, codified at 43 U.S.C. § 321. The
Act of 1877 states:
It shall be lawful for any citizen of the United States, or [other certain persons] to
file a declaration . . . that he intends to reclaim a tract of desert land not exceeding
one-half section, by conducting water upon the same, within the period of three
years thereafter: Provided, however, That the right to the use of water by the
person so conducting the same, on or to any tract of desert land of three hundred
and twenty acres shall depend upon bona fide prior appropriation; and such right
shall not exceed the amount of water actually appropriated, and necessarily used
for the purpose of irrigation and reclamation; and all surplus water over and above
such actual appropriation and use, together with the water of all lakes, rivers, and
other sources of water supply upon the public lands and not navigable, shall
remain and be held free for the appropriation and use of the public for irrigation,
mining, and manufacturing purposes subject to existing rights . . .
43 U.S.C. § 321.
The Acts of 1866, 1870 and 1877 did not extinguish the Pueblos’ aboriginal water rights;
they granted a right of way to vested water rights holders and stated those rights would be
13
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 14 of 26
protected. None of the Parties contend that the Acts of 1866, 1870 and 1877 directly affected the
Pueblos’ aboriginal rights. The Coalition expressed its concern that the Acts of 1866, 1870 and
1877:
recognized and protected the Pueblos’ actual, existing use of water, just as they
recognized and protected the actual, existing use of water by the Non-Pueblo
parciantes within the Spanish land grants . . . The Coalition has never taken the
position that the Pueblos’ actual use of water as of 1848 was not protected by the
Treaty and confirmed under those Acts. The same is true of acequia members . . .
Recognition of any right in the Pueblos to commence new uses of water with a
prior right would displace uses previously vested in the Coalition’s predecessors
and is precisely the harm to which the Acts of 1866, 1870 and 1877 Acts were
directed.
Doc. 4484 at 25-27. The Coalition’s concern relates to quantification of the Pueblos’ rights
which the Court will address in Issue No. 3.
Second Sub-issue to Issue 1: Did the Pueblo Lands Acts of 1924 and 1933 have any effect on
the Pueblos’ water rights, and if so, what effect?
The purpose of the Pueblo Lands Act of June 7, 1924, was “t[t]o quiet title to the lands
within Pueblo Indian land grants, and for other purposes.” 43 Stat. 636. The Act of 1924 made
the United States liable for the fair market value of those tracts of lands and water rights that
could have been recovered for the Indians by the United States by seasonable prosecution. See
43 Stat. 638 § 6(c). The Pueblo Compensation Act of May 31, 1933, authorized appropriations
to pay in part the liability of the United States to the Indian Pueblos. See 48 Stat. 108. The Act
of 1933 also stated: “Nothing herein contained shall in any manner be construed to deprive any
of the Pueblo Indians of a prior right to the use of water from streams running through or
bordering on their respective pueblos . . . .” 48 Stat. 111 § 9.
The Tenth Circuit discussed the Pueblo Lands Acts of 1924 and 1933:
14
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 15 of 26
The decision in United States v. Joseph [94 U.S. 614 (1876)] placing the Pueblos
outside the protection of federal laws resulted in the acquisition and occupation by
non-Indians of land within the Pueblos. The United States did nothing to protect
the Pueblos. The Sandoval [231 U.S. 28 (1913)] and Candelaria [271 U.S. 432
(1925)] decisions overturning Joseph caused uncertainty as to the titles of both the
Indians and the non-Indians. The 1924 Act, 43 Stat. 636, was enacted to quiet the
title to lands within the Pueblo Indian Land Grants. It established the ‘Pueblo
Lands Board,’ and directed it to investigate, determine and report the lands within
the exterior boundaries of the Pueblos, the titles to which had been extinguished
in accordance with the provisions of the Act.
In the 1933 Act, Congress approved compensation for the Pueblos in excess of
that recommended by the Lands Board. The Committee Report says that this was
done because of an error of the Lands Board. H.Rep.No.123, p. 3, infra. Private
counsel for the Pueblos vigorously supported the increase in the awards. The State
argues that the increase was to pay the Pueblos for whatever reserved rights they
might have had to water.
The error of the Lands Board had nothing to do with reserved rights. The error
was a failure to recognize that, when the claims of non-Indians were sustained,
the Pueblos lost both lands and the water rights appurtenant thereto. Litigation
brought pursuant to the 1924 Act had resulted in decisions that appurtenant water
went with the land. Congress increased the awards to include the value of
appurtenant water.
The Committee Reports which preceded the passage of the 1933 Act support this
conclusion. For practical purposes the Senate and House Reports are identical.
See H.Rep.No.123, 73d Cong., 1st Sess. and S.Rep.No.73 at the same session.
After referring to the mentioned court decisions, the House Report reads, pp. 3—
4:
‘The Indian has, accordingly, lost, under court decrees, under the
doctrine of res adjudicata, certain lands with the water rights
appurtenant thereto, for which loss section 6 of the act of June 7,
1924, clearly provided that he should be compensated. The present
bill does no more than bring the awards up to an amount which the
appraisers appointed by the Board found to be the value of this
land and the water rights appurtenant thereto.’
....
The question of the water rights of the Pueblos for use on the land which they
retained was raised in the congressional hearings. Senators Bratton and Cutting of
New Mexico asserted that the Pueblos were entitled to no preferential right.
15
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 16 of 26
Congressman Leavitt of Montana stated, Hearings Before the House Committee
on Indian Affairs on H.R. 9071, 72d Cong., 1st Sess., at 122, that:
‘(W)e have got to be careful in our wording of the act of Congress
that we do not extinguish an Indian right that has been long
existent by a present act of Congress.’
A representative of the Secretary of the Interior proposed an amendment which he
characterized as recognizing for the Indians a prior right to the use of water for
domestic, stockwater and irrigation purposes for lands remaining in Indian
ownership. The proposal became s 9 of the 1933 Act and reads:
‘Nothing herein contained shall in any manner be construed to
deprive any of the Pueblo Indians of a prior right to the use of
water from streams running through or bordering on their
respective pueblos for domestic, stockwater, and irrigation
purposes for the lands remaining in Indian ownership, and such
water rights shall not be subject to loss by nonuse or abandonment
thereof as long as title to said lands shall remain in the Indians.’
New Mexico v. Aamodt, 537 F.2d 1102, 1109-1110 (10th Cir. 1976).
The Coalition contends “The 1924 and 1933 Acts only recognized the Pueblos’ actual
uses” and the legislative history makes clear “that Congress rejected any notion that the Pueblos
subject thereto had some kind of ‘expanding’ water right with first priority.” Doc. 4484 at 28;
Doc. 4361 at 43-69 (discussing the legislative history and concluding the Acts “recogniz[ed]
only appurtenant water rights acquired under the doctrine of prior appropriation in the Pueblos
and non-Indians alike” and “did not recognize a right in the Pueblos to expand a prior right”); see
also Doc. 4363 at 15-18 (State of New Mexico stating “The only effect of the Acts on the
Pueblos’ water rights was to determine which water rights had been extinguished and vested in
non-Indians on lands within their grant lands, and to compensate the Pueblos for those losses;”
“Section 9 of the 1933 Act protected the Pueblos’ existing water rights appurtenant to thenirrigated lands remaining in their ownership;” and “with respect to those lands, [the Pueblos]
16
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 17 of 26
would get a first priority, but there was no expanding water right”).
The Court concludes that the Acts of 1924 and 1933 did not directly affect the Pueblos’
water rights remaining in Pueblo ownership because there is no language in the Acts indicating
that Congress intended to extinguish or limit the Pueblos’ water rights. See Doc. 4380 at 46
(Transcript of hearing before U.S. Magistrate Judge William P. Lynch at 363-366, April 1, 2014,
expert witness for the State Professor G. Emlen Hall testifying that there is no language in the
Act of 1924 that affirmatively acts to limit Pueblo water rights to lands actually irrigated
between 1846 and 1924, the Act only refers to water in terms of valuating the water lost for
purposes of compensation).
Third Sub-issue to Issue 1: Did the Indian Claims Commission Act have any effect on the
Pueblos’ water rights, and if so, what effect?
Congress enacted the Indian Claims Commission Act “To create an Indian Claims
Commission, to provide for the powers, duties, and functions thereof, and for other purposes.”
Indian Claims Commission Act, Act of August 13, 1946, 60 Stat. 1049, c. 959 (“ICCA”)
(formerly codified as amended at 25 U.S.C. §§ 70-70v; now repealed). ICCA directed the
Commission to “hear and determine [various] claims [in five categories] against the United
States on behalf of any Indian tribe, band, or other identifiable group of American Indians”
including “claims arising from the taking by the United States, whether as the result of a treaty of
cession or otherwise, of lands owned or occupied by the claimant without the payment for such
lands of compensation agreed to by the claimant.” 60 Stat. 1050. “The payment of any claim,
after its determination in accordance with this Act, shall be a full discharge of the United States
of all claims and demands touching any of the matters involved in the controversy.” 60 Stat.
1055.
17
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 18 of 26
None of the Parties asserted in their initial briefs on Issue No. 1, filed in 2014, that ICCA
extinguished or modified the Pueblos’ water rights. See Opening Brief of Pueblos of Santa Ana,
Zia and Jemez and the United States, on Issues 1 and 2 at 9, Doc. 4362, filed August 19, 2014
(“Neither the Indian Claims Commission Act nor any proceedings brought under the Act to
which the any of the three Pueblos who are parties herein were party, had any effect on the
Pueblos’ water rights associated with their Aboriginal Lands”) (citation omitted); State of New
Mexico’s Opening Brief on Issues 1 and 2 at 12, Doc. 4363, filed August 19, 2014 (“The Indian
Claims Commission Act and the actions of the Indian Claims Commission neither affected nor
determined the rights of the Pueblos to water from common sources.”); Coalition’s Opening
Brief on Issues 1 and 2 at 76-77, Doc. 4361, filed August 19, 2014 (stating ICCA “established a
deadline and process for asserting aboriginal claims” and “any Pueblo aboriginal title surviving
the change of sovereigns was extinguished in the Pueblo grant lands by the Acts of 1854, 1858
and 1869 [evaluating claims to land under the laws, customs and usages of Spain and Mexico
and confirming land claims] . . . Any claims the Pueblos may have had under the 1924 and 1933
Acts have already been resolved and compensation awarded ... various federal actions in the first
half of the 20th Century . . . extinguished tribal aboriginal title on those lands. Any other claims
were either heard and determined by the Indian Claims Commission or are now barred by the
ICCA”); Coalition’s Response Brief on Issues 1 and 2 at 33, Doc. 4365, filed October 20, 2014
(stating ICCA “does not support the US/Pueblos’ claims of aboriginal water rights”).
In its Supplemental Brief on Issues 1 and 2, filed in 2022, the Pueblo of Santa Ana stated
“neither the Indian Claims Commission Act nor any proceedings under it extinguished or
modified any of these Pueblos’ aboriginal water rights.” Doc. 4475 at 15, filed September 7,
18
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 19 of 26
2022. In its Response, also filed in 2022, to the Pueblo of Santa Ana’s Supplemental Brief, the
Coalition does not discuss the effect of ICCA on the Pueblos’ water rights. See Coalition’s
Response to Opening Supplemental Briefs of the United States and the Pueblo of Santa Ana on
Issues 1 and 2 at 1, Doc. 4484, filed October 21, 2022 (referring the Court to its Opening,
Response and Reply Briefs filed in 2014).
The Court concludes that the Indian Claims Commission Act did not have any effect on
the Pueblos’ water rights. The purpose of ICCA was to provide compensation to Indians for
claims against the United States as determined by the Indian Claims Commission. There is no
language in ICCA showing an intent to extinguish or modify the Pueblos’ water rights.
WINANS DOCTRINE
Issue No. 2 asks: “Does the Winans doctrine apply to any of the Pueblos’ grant or trust
lands?” Because the Court’s initial determination that the Pueblos’ aboriginal rights had been
extinguished by Spain mooted Issue No. 2, the Tenth Circuit did not address whether the Winans
doctrine applies to any of the Pueblos’ lands.
Winans arose from a “suit brought to enjoin [non-Indians] from obstructing certain
Indians of the Yakima Nation . . . from exercising fishing rights and privileges on the Columbia
River . . . claimed under the provisions of the treaty between the United States and the Indians,
made in 1859.” United States v. Winans, 198 U.S. 371, 377 (1905). The defendants in Winans
acquired land adjacent to the Columbia River from the United States and placed in the river in
front of their lands devices for taking fish, called fishing wheels for which licenses were granted
to them by the State of Washington. See Winans, 198 U.S. at 379. The Winans defendants
contended that they had the power to exclude the Indians from the river by reason of their
19
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 20 of 26
ownership of the land bordering the river. See Winans, 198 U.S. at 379. The Circuit Court of the
United States for the District of Washington agreed with the defendants “decid[ing] that the
Indians acquired no rights but what any inhabitant of the territory or state would have. Indeed,
acquired no rights but such as they would have without the treaty.” Winans, 198 U.S. at 380.
The Supreme Court of the United States reversed the lower court’s decision explaining:
[Under the treaty, the Indians] cede[d] . . . to the United States all their right, title,
and interest in and to the lands and country occupied and claimed by them,”
[reserving a portion of those land for the use and occupation of the Indians].
....
[The treaty guaranteed] the right to all citizens of the United States to enter upon
and occupy as settlers any lands not actually occupied and cultivated by said
Indians at this time, and not included in the reservation.
....
[The treaty secured to the Indians] “the right of taking fish at all usual and
accustomed places, in common with citizens of the territory.” At the time the
treaty was made the fishing places were part of the Indian country, subject to the
occupancy of the Indians, with all the rights such occupancy gave. The object of
the treaty was to limit the occupancy to certain lands, and to define rights outside
of them.
....
The right to resort to the fishing places in controversy was a part of larger rights
possessed by the Indians . . . the treaty was not a grant of rights to the Indians, but
a grant of right from them, a reservation of those not granted . . . There was an
exclusive right of fishing reserved within certain boundaries. There was a right
outside of those boundaries reserved ‘in common with citizens of the territory.’
As a mere right, it was not exclusive in the Indians. Citizens might share it, but
the Indians were secured in its enjoyment by a special provision of means for its
exercise. They were given ‘the right of taking fish at all usual and accustomed
places . . . .
Winans, 198 U.S. at 377-381.
“Winans rights are essentially recognized aboriginal rights.” Abouselman, 976 F.3d at
1152.
However, they deviate from aboriginal rights in that they are governmentally
20
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 21 of 26
recognized; their abrogation therefore requires constitutional compensation.5 But
proof of their scope is essentially identical to that required to prove the existence
of an aboriginal claim. Thus, the scope of a Winans right is dependent on actual
use over an extended period of time, although it is not a function of the extent of
land title.
Winans rights preserve pre-existing uses, rather than establishing new uses. Their
priority dates are therefore not related to the establishment of a land reservation
but date from pre-white settlement, or “time immemorial.” The quantity of
Winans water rights reserved is not fixed on practicably irrigable acreage but is
instead a “needs-based” test. Winans rights are unusual in that they commonly are
nonconsumptive. A Winans right for hunting and fishing purpose “consists of the
right to prevent other appropriators from depleting the streams waters below a
protected level in any area where the non-consumptive right applies.” Winans
rights also include water to support gathering rights as well as hunting, fishing,
and trapping rights. This includes sufficient water to support “productive habitat.”
2 Waters and Water Rights § 37.02(a)(2) (2023) (some footnotes omitted).
The Pueblo of Santa Ana and the United States assert that that the Winans doctrine
applies the Pueblos’ aboriginal water rights because Congress expressly recognized those rights
by Section 7 of the Act of February 27, 1851, 9 Stat. 574, 587, and by Section 9 of the Pueblo
Compensation Act of 1933, 48 Stat. 108, 111. See Doc. 4475 at 24; Doc. 4362 at 43-44.
Section 7 of the Act of February 27, 1851, states:
And be it further enacted, That all the laws now in force, regulating trade and
intercourse with the Indian tribes, or such provisions of the same as may be
applicable, shall be, and the same are hereby, extended over the Indian tribes in
the Territories of New Mexico and Utah.
9 Stat. 574, 587. The United States Supreme Court stated that Section 7 of the Act of February
27, 1851, extended the Indian Trade and Intercourse Act of June 30, 1834, 4 Stat. 729, over ‘the
Indian tribes in the Territories of New Mexico and Utah’ and:
See Felix Cohen, Handbook of Federal Indian Law 1121–22, 975–82, 974–75 (2005 ed.).
Aboriginal title that is not recognized by subsequent treaty, statute, or agreement may be
terminated by Congress without payment of just compensation. Tee-Hit-Ton Indians v. United
States, 348 U.S. 272 (1955).
21
5
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 22 of 26
The Act of 1851 obviously did not create any Indian right of occupancy which did
not previously exist. But it plainly indicates that in 1851 Congress desired to
continue in these territories the unquestioned general policy of the Federal
government to recognize such right of occupancy. As stated by Chief Justice
Marshall in Worcester v. Georgia, supra, 6 Pet. at page 557, 8 L.Ed. 483, the
Indian trade and intercourse acts ‘manifestly consider the several Indian nations
as distinct political communities, having territorial boundaries, within which their
authority is exclusive, and having a right to all the lands within those boundaries,
which is not only acknowledged, but guarantied by the United States.’
United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 347-348 (1941) (emphasis added).
Section 9 of the Pueblo Compensation Act of 1933, states:
Nothing herein contained shall in any manner be construed to deprive any of the
Pueblo Indians of a prior right to the use of water from streams running through
or bordering on their respective lands remaining in Indian ownership, and such
water rights shall not be subject to loss by nonuse or abandonment thereof as long
as title to said lands shall remain in the Indians.
48 Stat. 108, 111.
The Coalition and the State contend that the Winans doctrine does not apply because
there is no treaty or agreement between the Pueblos and the United States that specifically
recognizes or reserves any Pueblo aboriginal right. See Doc. 4361 at 80 (Coalition); Doc. 4363
at 19 (State of New Mexico). Both the Coalition and the State quote dicta from the Court’s 2004
Opinion that states: “Here there is no treaty or agreement between the Pueblos and the United
States that fairly specifically recognizes the Pueblos’ aboriginal rights.” Doc. 4361 at 80; Doc.
4363 at 18; see 2004 Opinion at 28, Doc. 4051 (denying motion for summary judgment seeking a
ruling that the Winans doctrine does not apply to Pueblo grant lands and stating the Parties will
be allowed to raise the issue of the applicability of the Winans doctrine to Pueblo grant lands
following discovery). The Coalition and the State also argue the Winans doctrine does not
support the Pueblos’ claims to expanding aboriginal water rights for future uses of water. See
22
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 23 of 26
Doc. 4484 at 7-11; Doc. 4485 at 11-12. The Court will address the quantification of aboriginal
and Winans water rights in Issue No. 3.
The Court concludes that the Winans doctrine applies to the Pueblos’ aboriginal water
rights. While the water rights in Winans were reserved by the Indians in a treaty with the United
States, the State and the Coalition have not shown that that governmental recognition of
aboriginal water rights must occur in a treaty between the subject Indians and the United States.
See Abouselman, 976 F.3d at 1152 (“Winans rights are essentially recognized aboriginal rights”).
The Tenth Circuit explained, and this Court has concluded above, that the Pueblos had aboriginal
rights and that neither Spain nor Mexico extinguished those aboriginal rights. While the Treaty
of Guadalupe Hidalgo and Section 7 of the Act of February 27, 1851 do not specifically mention
water rights, they expressly recognize the Pueblos’ existing rights, which include aboriginal
water rights. See New Mexico v. Aamodt, 537 F.2d 1102, 1109-1110 (10th Cir. 1976) (“In the
Treaty of Guadalupe Hidalgo, the United States agreed to protect rights recognized by prior
sovereigns”); United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 347-348 (1941) (stating the
Act of February 27, 1851 “plainly indicates that in 1851 Congress desired to continue in these
territories the unquestioned general policy of the Federal government to recognize such right of
occupancy”); see also Section 9 of the Pueblo Compensation Act of 1933 (stating “Nothing
herein contained shall in any manner be construed to deprive any of the Pueblo Indians of a prior
right to the use of water from streams running through or bordering on their respective lands
remaining in Indian ownership”).
CHARLOTTE MITCHELL’S BRIEF AND MOTION
Charlotte Mitchell is a claimant in this case. See Entry of Appearance for Defendants
23
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 24 of 26
James and Charlotte Mitchell by attorney Lana E. Marcussen, Doc. 3460, filed July 2, 1996; but
also see Pueblo of Santa Ana’s Supplemental Reply Brief at 2 n.1, Doc. 4490, filed November
21, 2022 (stating Ms. Mitchell “is not shown as having any water rights adjudicated to her in the
Addendum to the Partial Final Judgment and Decree on Non-Pueblo, Non-Federal Proprietary
Water Rights issued on December 1, 2000 (Doc. 3948)).
Ms. Mitchell filed a Supplemental Response Brief on Issues No. 1 and No. 2 which
discusses the history of federal Indian law and policy and concludes:
The federal government is without authority to remove the jurisdiction of the
State of New Mexico over the waters of the Rio Grande or over the Indian
country that makes up the Santa Ana Pueblo as a federal Indian reservation.
Therefore, the decision in United States v. Winans is no longer good law . . . This
court should deny the existence of any federal reserved right in land or water.
Doc. 4481 at 24, filed October 14, 2022; Notice of Errata, Doc. 4483, filed October 20, 2022
(attaching a corrected Response Brief with the only corrections being the addition of citations
and the initials of the trial court judge).
The Court declines to consider Ms. Mitchell’s Response because the issues currently
before the Court relate to the Pueblo of Santa Ana’s aboriginal rights and whether those rights
have been recognized by the United States; Issues 1 and 2 do not related to reserved rights. See
Pueblo of Santa Ana’s Reply Brief at 2 n.1 (stating the Pueblo of Santa Ana “has not claimed
any federally reserved rights in this phase of this litigation (regarding Issues 1 and 2), and that
Winans does not deal with reserved rights”); United States Reply Brief at 19, Doc. 4489, filed
November 21, 2022 (stating Ms. Mitchell’s Response “does not address any issues regarding
extinguishment of aboriginal rights by Spain and Mexico or the United States and its contention
that Winans is no longer good law is specious;” “the only discussion in [Ms. Mitchell’s
24
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 25 of 26
Response] related to Issues 1 and 2 is the contention that Winans was allegedly overruled by
Oklahoma v. Castro-Huerta, 142 S.Ct. 2486 (2022) . . . Castro Huerta addressed a discrete issue
relating to criminal jurisdiction on Indian lands and did not in any fashion address issues
pertaining to the body of federal law dealing with federal Indian reserved water rights and Indian
aboriginal water rights”); Oklahoma v. Castro-Huerta, 142 S.Ct. 2486, 2504-05 (2022) (“We
conclude that the Federal Government and the State [of Oklahoma] have concurrent jurisdiction
to prosecute crimes committed by non-Indians against Indians in Indian country”).
Counsel for Charlotte Mitchell also filed a motion stating:
On November 4th, 2022, the United States Supreme Court accepted Arizona v.
Navajo Nation, Docket. No. 21-1484 and Navajo Nation v. Haaland, Docket No.
22-51 as consolidated to be heard this term. The questions presented in these
cases overlap Issues No. 1 and Issue 2 in this case. Arizona v. Navajo Nation
questions the federal reserved rights doctrine while the Navajo Nation sues the
Secretary of the Interior to determine whether the federal Indian trust relationship
is in any way enforceable by the tribe. Counsel for Charlotte Mitchell thinks it is
important for this Court to be aware of these overlapping cases set for oral
argument on March 20, 2023. The opening brief filed on December 19, 2022 by
the United States on behalf of the Secretary of the Interior disclaims any
enforceable Indian trust relationship that requires raising a Winter's doctrine claim
for any Indian tribe in the Colorado River watershed. The brief before the
Supreme Court does argue in contrast to the brief filed by the United States in this
case regarding the Pueblo Indians on the Rio Grande. Counsel also participated in
the filing of an amicus brief for the Citizen's Equal Rights Foundation in support
of neither party in these consolidated cases.
Motion to Take Judicial Notice, Doc. 4494, filed February 13, 2023.
The Court denies Ms. Mitchell’s Motion to Take Judicial Notice because Ms. Mitchell
has not shown that the United States’ brief before the United States Supreme Court has a direct
relationship to whether the Pueblos’ aboriginal rights have been extinguished and whether
Congress has recognized the Pueblos’ aboriginal water rights, or that notice of the United States’
brief before the United States Supreme Court will materially advance the resolution of this case.
25
Case 6:83-cv-01041-KWR-JMR Document 4506 Filed 09/28/23 Page 26 of 26
See Bruce v. City and County of Denver, 57 F.4th 738, 741 n.3 (10th Cir. 2023) (“In ruling on a
motion to dismiss, a federal court may take judicial notice of another court's publicly filed
records if they have a direct relation to matters at issue. See Tal v. Hogan, 453 F.3d 1244, 1265
n.24 (10th Cir. 2006); see also St. Louis Baptist Temple, Inc. v. F.D.I.C., 605 F.2d 1169, 1172
(10th Cir. 1979). Furthermore, “the documents may only be considered to show their contents,
not to prove the truth of matters asserted therein.” Tal, 453 F.3d at 1265 n.24 (quotation marks
and brackets omitted).”). Charlotte Mitchell’s Motion to Take Judicial Notice, Doc. 4494, filed
February 13, 2023, is DENIED.
IT IS SO ORDERED.
_________________________________
UNITED STATES DISTRICT JUDGE
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?