United States v. Abouselman ( 2020 )


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  •                                                                          FILED
    United States Court of Appeals
    PUBLISH                     Tenth Circuit
    UNITED STATES COURT OF APPEALS             September 29, 2020
    Christopher M. Wolpert
    FOR THE TENTH CIRCUIT                   Clerk of Court
    _________________________________
    UNITED STATES OF AMERICA, on its
    own behalf and on behalf of the Pueblos of
    Jemez, Santa Ana, and ZIA,
    Plaintiff - Appellant,
    STATE OF NEW MEXICO, ex rel. State
    Engineer; JEMEZ RIVER BASIN
    WATER USERS COALITION,
    Plaintiffs - Appellees,
    and
    PUEBLO OF SANTA ANA; PUEBLO OF
    JEMEZ; PUEBLO OF ZIA,
    Plaintiff Intervenors,
    v.                                                    No. 18-2164
    TOM ABOUSELMAN; DARWIN
    HOURIGAN; BOARD OF EDUCATION
    OF THE JEMEZ VALLEY PUBLIC
    SCHOOL DISTRICT; KING BROTHERS;
    NACIMIENTO COMMUNITY DITCH
    ASSOCIATION; PUBLIC LANDS
    COMMISSIONER,
    Defendants.------------------------------
    ALL PUEBLO COUNCIL OF
    GOVERNORS; PUEBLO OF ACOMA;
    PUEBLO OF ISLETA; PUEBLO OF
    SANDIA; PUEBLO OF LAGUNA;
    PUEBLO OF SAN FELIPE; PUEBLO OF
    SANTO DOMINGO; PUEBLO OF ZUNI;
    PUEBLO OF SANTA CLARA; PUEBLO
    OF OHKAY OWINGEH; ASSOCIATION
    OF COMMUNITY DITCHES OF RIO
    SAN JOSE; TRI-STATE GENERATION
    AND TRANSMISSION ASSOCIATION,
    INC; EL RITO DITCH ASSOCIATION;
    LA ASOCIACION DE LAS ACQUIAS
    DEL RIO VALLECITOS, TUSAS Y OJO
    CALIENTE; RIO CHAMA ACQUIA
    ASSOCIATION; ASOCIACION DE
    ACQUITAS NORTENAS DE RIO
    ARRIBA; LA ACEQUIA DE LA
    SIERRA; RIO QUEMADO, RIO
    FRIJOLES, RIO EN MEDIO AND
    SANTA CRUZ STEAM SYSTEMS
    COMMUNITY DITCH ASSOCIATION,
    Amici Curiae.
    –––––––––––––––––––––––––––––––––––
    No. 18-2167
    STATE OF NEW MEXICO, ex rel. State
    Engineer; JEMEZ RIVER BASIN
    WATER USERS COALITION,
    Plaintiffs - Appellees,
    UNITED STATES OF AMERICA, on its
    own behalf and on behalf of the Pueblos of
    Jemez, Santa Ana, and ZIA,
    Plaintiff,
    PUEBLO OF JEMEZ; PUEBLO OF
    SANTA ANA; PUEBLO OF ZIA,
    Plaintiff Intervenors - Appellants,
    v.
    TOM ABOUSELMAN; DARWIN
    HOURIGAN; BOARD OF EDUCATION
    2
    OF THE JEMEZ VALLEY PUBLIC
    SCHOOL DISTRICT; KING BROTHERS;
    NACIMIENTO COMMUNITY DITCH
    ASSOCIATION; PUBLIC LANDS
    COMMISSIONER,
    Defendants.
    ALL PUEBLO COUNCIL OF
    GOVERNORS; PUEBLO OF ACOMA;
    PUEBLO OF ISLETA; PUEBLO OF
    LAGUNA; PUEBLO OF OHKAY
    OWINGEH; PUEBLO OF SAN FELIPE;
    PUEBLO OF SANDIA; PUEBLO OF
    SANTA CLARA; PUEBLO OF SANTO
    DOMINGO; PUEBLO OF ZUNI;
    ASSOCIATION OF COMMUNITY
    DITCHES OF RIO SAN JOSE; TRI-
    STATE GENERATION AND
    TRANSMISSION ASSOCIATION, INC.;
    EL RITO DITCH ASSOCIATION; LA
    ASOCIACION DE LAS ACEQUIAS DEL
    RIO VALLECITOS, TUSAS Y OJO
    CALIENTE; RIO CHAMA ACEQUIA
    ASSOCIATION; ASOCIACION DE
    ACQQUIAS NORTENAS DE RIO
    ARRIBA; LA ACEQUIA DE LA
    SIERRA; RIO QUEMADO, RIO
    FRIJOLES, RIO EN MEDIO AND
    SANTA CRUZ STREAM SYSTEMS'
    COMMUNITY DITCH ASSOCIATION,
    Amici Curiae.
    _________________________________
    Appeal from the United States District Court
    for the District of New Mexico
    (D.C. No. 6:83-CV-01041-MV-JHR)
    _________________________________
    Mary Gabrielle Sprague, Attorney, Department of Justice (Jeffrey Bossert Clark,
    Assistant Attorney General; Eric Grant, Deputy Assistant Attorney General; Elizabeth
    3
    Ann Peterson, Attorney; William B. Lazarus, Attorney; James B. Cooney, Attorney, with
    her on briefs), Washington, D.C., for Plaintiff-Appellant United States of America.
    Richard W. Hughes, Rothstein Donatelli LLP (Reed C. Bienvenu, Rothstein Donatelli
    LLP; David R. Yepa, VanAmberg, Rogers, Yepa, Abeita & Gomez, LLP, Albuquerque,
    N.M.; Joseph D. Little, Zia Pueblo, N.M., with him on briefs), Santa Fe, N.M. for
    Plaintiffs Intervenors-Appellants Pueblo of Jemez, Pueblo of Santa Ana, and Pueblo of
    Zia.
    Arianne Singer, Special Assistant Attorney General, Office of the State Engineer
    (Gregory C. Ridgley, Special Assistant Attorney General, Office of the State Engineer;
    Brett J. Olsen, Special Assistant Attorney General, Abramowitz, Frank & Olsen, LLC,
    Albuquerque, N.M., with her on brief), Santa Fe, N.M., for Plaintiff-Appellee the State of
    New Mexico.
    Larry C. White (John W. Utton, Utton & Kery, PA, with him on brief), Santa Fe, N.M.
    for Plaintiff-Appellee Jemez River Basin Water Users Coalition.
    Reid Peyton Chambers and Vanessa Ray Hodge, Sonosky, Chambers, Sachse, Mielke
    and Brownell, L.L.P., Albuquerque, N.M.; Ann Berkley Rodgers and Peter C. Chestnut,
    Chestnut Law Offices, P.A., Albuquerque, N.M.; Susan G. Jordan, Jordan Law Firm
    L.L.C., Santa Fe, N.M.; Jane Marx, Albuquerque, N.M.; Jessica R. Aberly, Aberly Law
    Firm, Albuquerque, N.M.; and Scott W. Williams, Curtis G. Berkey, and Aviva L.
    Simon, Berkey Williams LLP, Berkeley, CA, filed an amicus curiae brief for All Pueblo
    Council of Governors; Pueblo of Acoma; Pueblo of Isleta; Pueblo of Sandia; Pueblo of
    Laguna; Pueblo of San Felipe; Pueblo of Santo Domingo; Pueblo of Zuni; Pueblo of
    Santa Clara; and Pueblo of Ohkay Owingeh on behalf of Plaintiff-Appellant and
    Plaintiffs Intervenors-Appellants.
    Mary E. Humphrey and Connie Odé, Humphrey & Odé, P.C., El Prado, N.M.; Seth
    Fullerton, Katz, Herdman, MacGillivray & Fullerton, PC, Santa Fe, N.M.; and Adán E.
    Trujillo, Chimayó, N.M. filed an amicus curiae brief for El Rito Ditch Association; La
    Asociación de Las Acequias del Rio Vallecitos; Tusas y Ojo Caliente; Rio Chama
    Acequia Association; Asociación de Acequias Norteñas de Rio Arriba; La Acequia de la
    Sierra; and Rio Quemado, Rio Frijoles, Rio En Medio and Santa Cruz Steam Systems’
    Community Ditch Association on behalf of Plaintiffs-Appellees.
    Sunny J, Nixon and Shannon M. Sherrell, Rodey, Dickason, Sloan, Akin & Robb, P.A.,
    Santa Fe, N.M., and Rebecca Dempsey, Cuddy & McCarthy, LLP, Santa Fe, N.M., filed
    an amicus curiae brief for Tri-State Generation and Transmission Association, Inc. and
    Association of Community Ditches of the Rio San José on behalf of Plaintiffs-Appellees.
    4
    _________________________________
    Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.
    _________________________________
    EBEL, Circuit Judge.
    _________________________________
    The Pueblos of Jemez, Santa Ana, and Zia have resided along the Jemez River
    in northern New Mexico since time immemorial; they resided there as their lands
    passed from Spanish sovereignty, to Mexican sovereignty, and finally to the United
    States. Almost forty years ago, the United States initiated a water-rights adjudication
    for the Jemez River Basin, claiming water rights on behalf of the Pueblos. Before us
    today is an interlocutory appeal addressing a discrete purely legal issue from that
    ongoing, decades-long litigation: “[W]hether the Pueblos’ aboriginal water rights
    were extinguished by the imposition of Spanish authority without any affirmative
    act.” (App’x 276.)
    Exercising our jurisdiction under 28 U.S.C. § 1292(b), we hold that a
    sovereign must affirmatively act to extinguish aboriginal water rights. Therefore, we
    REVERSE the district court’s determination below and REMAND the case for
    further proceedings consistent with this opinion.
    I.   PROCEDURAL HISTORY
    These are consolidated interlocutory appeals from a district court order
    determining a single issue within a thirty-seven-year-old case. The appellants are the
    Pueblos of Jemez, Santa Ana, and Zia (“the Pueblos”), as well as the United States,
    5
    on its own behalf and on behalf of the Pueblos (collectively “Appellants”).1 The
    appellees are the Jemez River Basin Water Users’ Coalition (“the Coalition”) and the
    State of New Mexico (collectively “Appellees”).
    This case originated in federal district court in 1983 as an action to allocate
    water rights in the Jemez River in New Mexico. This litigation presents a myriad of
    issues, most of which have not yet been resolved by the district court as they are
    being litigated in stages. For the first stage, each side engaged their own expert on
    Spanish law, both of whom drafted reports and testified at a three-day evidentiary
    hearing in front of the magistrate judge. The magistrate judge made proposed
    findings of fact and issued a recommended disposition, which the district court
    adopted. The court found that the Pueblos had aboriginal water rights; however, it
    went on to conclude that the Pueblos’ aboriginal water rights were extinguished by
    Spain’s assertion of sovereignty over the region in the 1500s. Because this was a
    critical ruling that would dispose of many of the remaining issues in this case, the
    parties requested and the district court agreed to certify that discrete issue to us for
    interlocutory appeal.
    II.   JURISDICTION
    The United States and the Pueblos followed the proper procedure to invoke
    this court’s jurisdiction under 28 U.S.C. § 1292(b), which permits interlocutory
    1
    The United States and the Pueblos separately petitioned this court for review;
    both petitions were granted, and the cases were consolidated into one. The case
    below is currently stayed pending the outcome of this appeal.
    6
    review of an otherwise unappealable order “[w]hen a district judge . . . [is] of the
    opinion that such order involves a controlling question of law as to which there is
    substantial ground for difference of opinion and that an immediate appeal from the
    order may materially advance the ultimate termination of the litigation.”
    A. Certified Question
    “Interlocutory appeals originate from the district court’s order itself, not the
    specific question certified by the district court or the specific question framed by the
    appellant. An appellate court can and should address a different legal question if it
    controls the disposition of the certified order.” Paper, Allied-Indus., Chem. &
    Energy Workers Int’l Union v. Cont’l Carbon Co., 
    428 F.3d 1285
    , 1291 (10th Cir.
    2005) (internal citation omitted); see Yamaha Motor Corp., U.S.A. v. Calhoun, 
    516 U.S. 199
    , 205 (1996) (explaining that “the appellate court may address any issue
    fairly included within the certified order because it is the order that is appealable”
    (quotations omitted)). However, “[t]he court of appeals may not reach beyond the
    certified order to address other orders made in the case.” Yamaha Motor 
    Corp., 516 U.S. at 205
    . Thus, “the correct test for determining if an issue is appropriate for
    interlocutory review is (1) whether that issue was raised in the certified order; and
    (2) whether the issue can control the disposition of the order.” Paper, Allied-Indus.,
    Chem. & Energy 
    Workers, 428 F.3d at 1291
    .
    This case has a long procedural history, and as the arguments raised on appeal
    indicate, there are still many open issues. Almost none of these issues, however, are
    7
    appropriate for our interlocutory review. To determine which issues are
    appropriately before us, we must look to the certified order.
    This litigation is proceeding piecemeal. When settlement negotiations fell
    through in 2012 and trial preparation actively began, the parties and the court agreed
    that there were five threshold legal issues that needed to be decided before the parties
    could properly prepare for trial. Thus, the litigation continued with the five issues
    being briefed, argued, and decided in stages.
    This appeal arises from the first stage, in which the parties briefed and argued
    the first issue (which included three sub-issues), and the second issue.2 However, the
    district court’s order decided only the first issue:
    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?
    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.
    2
    The remaining threshold issues, which the parties have not fully briefed or
    argued to the district court, and which accordingly we do not decide, are (1) if the
    Pueblos have aboriginal water rights or Winans reserved water rights, what standards
    apply to quantify such rights; (2) do the Pueblos have Winters reserved rights
    appurtenant to their trust lands and, if so, how are those rights to be measured; and
    (3) are the Pueblos entitled to any riparian rights.
    8
    After finding that the Pueblos had established aboriginal water rights, the
    district court then determined that, during the time of Spanish sovereignty, the
    Spanish crown extinguished those rights, stating:
    Although 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 circumstances cited by the expert for the United States and Pueblos
    plainly and unambiguously indicate Spain’s intent to extinguish the Pueblos’
    right to increase their use of public waters without restriction and that Spain
    exercised complete dominion over the determination of the right to use public
    waters adverse to the Pueblos’ pre-Spanish aboriginal right to use water.
    (App’x 287.)
    In doing so, the district court deemed the first issue’s three sub-issues were
    mooted by its ruling that Spain had extinguished the Pueblos’ water rights.3 Along
    the same lines, the second issue asks whether the Winans doctrine is applicable.4
    United States v. Winans, 
    198 U.S. 371
    , 381 (1905) (recognizing aboriginal rights
    reserved to the tribe and not granted in a treaty). Because Winans rights are
    essentially recognized aboriginal rights, the second issue was resolved by the court’s
    finding that the Pueblos’ aboriginal rights had been extinguished by Spain. Thus,
    because neither the resolutions of the sub-issues nor the resolution of the second
    3
    The three sub-issues are (1) did the Acts of 1866, 1870 and 1877 have any
    effect on the Pueblos’ water rights and, if so, what effect; (2) did the Pueblo Lands Acts
    of 1924 and 1933 have any effect on the Pueblos’ water rights and, if so, what effect; and
    (3) did the Indian Claims Commission Act have any effect on the Pueblos’ water rights
    and, if so, what effect.
    4
    Issue No. 2: Does the Winans doctrine apply to any of the Pueblos’ grant or
    trust lands?
    9
    issue could control the disposition of the district court’s order, none of these issues is
    appropriate for interlocutory review.
    In finding that Spain extinguished the Pueblos’ aboriginal water rights, the
    district court’s certified order explicitly 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.” (App’x 287 (emphasis added).). Because
    our jurisdiction is controlled by the certified order presented to us, see Yamaha
    Motor 
    Corp., 516 U.S. at 205
    , we accept this conclusion by the district court for
    purposes of our analysis.
    When certifying this ruling for our review, the district court again noted that
    “[t]he issue of whether the Pueblos’ aboriginal water rights were extinguished by the
    imposition of Spanish authority without any affirmative act was raised in the Court’s
    Order.” (App’x 276 (emphasis added).) Moreover, both of the Appellants’ petitions
    for permission to appeal framed the issue as extinguishment of aboriginal water
    rights without affirmative action. Although we look to the district court’s certified
    order, and “not the specific question certified by the district court or the specific
    question framed by the appellant,” Paper, Allied-Indus., Chem. & Energy 
    Workers, 428 F.3d at 1291
    , our task is made easier here because the same question is presented
    by all of them.
    Thus, the controlling question of law in this appeal is whether aboriginal water
    rights can be extinguished by the imposition of sovereign authority without any
    affirmative act.
    10
    B. Issues Not Properly Before This Court
    In light of this litigation’s long and fragmented history, and the arguments
    made in this appeal, we find it prudent explicitly to mention a few specific issues that
    are not before us.
    First, the quantification of the Pueblos’ water rights is not before us. While
    this is an important question in the overall litigation, the current quantification of any
    remaining aboriginal water rights was not raised in the district court’s certified order
    and could in no way control its disposition because the order found that there were no
    existing aboriginal water rights. Moreover, the proper standard for quantifying any
    such rights is the subject of the third of the district court’s five stated issues, which
    have not been brought before us by this interlocutory appeal. While this question
    may be before us one day, today is not that day.
    Second, and relatedly, there are many types of water rights; here, we consider
    only aboriginal rights. The Pueblos may claim other types of water rights in this
    litigation, but those were not before the court below in this limited proceeding, and
    they are not before us either.
    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
    11
    explained above, any actions 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. 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.
    III.   STANDARD OF REVIEW
    When faced with a question of law, our review is de novo; when faced with a
    question of fact, our review is for clear error. Highmark Inc. v. Allcare Health
    Mgmt. Sys., Inc., 
    572 U.S. 559
    , 563 (2014). However, “[o]ur review of mixed
    questions of law and fact will be ‘under the clearly erroneous or de novo standard,
    depending on whether the mixed question involves primarily a factual inquiry or the
    consideration of legal principles.’” Roberts v. Printup, 
    595 F.3d 1181
    , 1186 (10th
    Cir. 2010) (quoting Estate of Holl v. Comm’r, 
    54 F.3d 648
    , 650 (10th Cir.1995)).
    “Where a mixed question primarily involves the consideration of legal principles,
    then a de novo review by the appellate court is appropriate.” Osage Nation v. Irby,
    
    597 F.3d 1117
    , 1122 (10th Cir. 2010).
    The question of whether Spain extinguished the Pueblos’ aboriginal water
    rights is ordinarily a mixed question of fact and law, as it requires the application of
    12
    facts to the legal standard for extinguishment.5 Here, however, the district court
    determined that Spain extinguished the Pueblos’ aboriginal water rights by the
    imposition of Spanish law. Thus, the issue here is the extent and impact of Spanish
    law. A court’s determination about foreign law “must be treated as a ruling on a
    question of law,” rather than as a ruling on a question of fact. Fed. R. Civ. P. 44.1;
    see Grimm v. Comm’r, 
    894 F.2d 1165
    , 1166 (10th Cir. 1990) (applying de novo
    review to the lower court’s interpretation of Philippine law). As such, the district
    court’s determination that the imposition of Spanish law extinguished the Pueblos’
    aboriginal water rights is reviewed de novo.
    IV.    BACKGROUND
    Before turning to the discrete question before us, we provide an overview of
    both Spanish sovereignty in the 1500s and aboriginal title.
    5
    Whether the Pueblos established aboriginal rights is a question of fact.
    United States v. Santa Fe Pac. R.R. Co., 
    314 U.S. 339
    , 345 (1941) (“Occupancy
    necessary to establish aboriginal possession is a question of fact to be determined as
    any other question of fact.”). As such, we will only set aside the district court’s
    finding if it is clearly erroneous. Ornelas v. United States, 
    517 U.S. 690
    , 694 n.3
    (1996). Because no party challenges the district court’s finding—and because this
    finding is supported by the record—this finding is not clearly erroneous, and we
    move forward with our review accepting that the Pueblos possessed aboriginal water
    rights.
    13
    A. Spanish Sovereignty and the Pueblos6
    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
    . . . 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.)
    The Spanish protection of Indian rights can be traced all the way back to the
    codicil of Queen Isabella’s will, drafted in 1504, “in which she admonishes her
    husband and soon-to-be heirs . . . to make sure that they protect the Indians and their
    6
    We, like the court below, reviewed both experts’ reports and testimony as to
    the legal principles in place during the time of Spanish sovereignty. Also like the
    court below, we “assume that the US/Pueblos’ expert, Dr. Cutter, is correct and have
    resolved all factual questions in favor of Dr. Cutter’s opinion.” (App’x 298.)
    14
    persons and their possessions.” (Id. 609.) Spain also issued a number of informal
    and formal laws, which were combined to create the Recopilación de Indias, “a
    compilation of laws issued by the crown and laws viewed broadly; Royal cedulas,
    letters, instructions, so on and so forth,” and applied to the Spanish colonies. (Id.
    610.) A number of laws within the Recopilación de Indias address the distribution or
    combining of lands, and it is repeatedly stated that, in undertaking these actions,
    Indians should be left their land and any resources that they may need. (Id. 372.)
    Hence, the Spanish crown was protective of Indian property rights.
    When Spain arrived in what is now Mexico, and throughout the years of
    Spanish sovereignty in the region, “the Spaniards continued to consider Indians as
    original owners of their property, as well as to recognize their native government.”
    (Id.;
    id. 380
    (“[T]here is no documentary evidence that Spanish magistrates forced
    Pueblos to allot lands and water within their communities in a particular way.”)). In
    sum, there was “a special, sometimes preferential, status for Indians under Spanish
    rule.” (Id. 388 (quoting William Taylor, Land and Water Rights in the Viceroyalty of
    New Spain, 50 N.M. Hist. Rev. 189, 191 (1975).)
    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
    15
    ways, including a process called a “repartimiento7 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.) While twenty-two repartimientos
    were undertaken in central Mexico, there was only one known repartimiento in New
    Mexico, which took place in Taos in 1823, during the time of Mexican sovereignty.
    (Id. 617.) “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.)
    B. 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
    7
    “Repartimiento” translates to “distribution.”
    16
    conveyance.” 1 Cohen's Handbook of Federal Indian Law § 15.04 (2019).8 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. 711
    , 746 (1835); see
    Johnson & Graham’s Lessee v. M’Intosh, 
    21 U.S. 543
    , 574 (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 (1946).
    The district court found that the Pueblos had established aboriginal rights. No
    party challenges that finding on appeal, so we focus our analysis on whether those
    rights were extinguished. 
    See supra
    n.6.
    Extinguishing aboriginal rights is complicated; aboriginal rights can only be
    extinguished by the sovereign. See Oneida Indian Nation v. Cty. of Oneida (“Oneida
    8
    The Supreme Court frequently cites to Mr. Cohen’s work and has referred to
    him as “an acknowledged expert in Indian law.” Squire v. Capoeman, 
    351 U.S. 1
    , 8–
    9 (1956).
    17
    I”), 
    414 U.S. 661
    , 667 (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
    . 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.
    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
    ). “[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 (1967)
    (quotations and alteration omitted) (quoting Santa Fe Pac. R.R. 
    Co., 314 U.S. at 353
    ).
    The leading case on extinguishment is United States v. Santa Fe Pacific
    Railroad Co., 
    314 U.S. 339
    (1941). There, the United States (as guardians for the
    Walapai Tribe) brought suit to enjoin the Railroad from interfering with the
    Walapais’ aboriginal title. The Railroad asserted that it had full title to the land,
    unencumbered by the Walapais’ aboriginal title, pursuant to a land grant in an 1866
    congressional act which stated that the “United States shall extinguish, as rapidly as
    may be consistent with public policy and the welfare of the Indians, and only by their
    18
    voluntary cession, the Indian title to all lands falling under the operation of this act.”
    Id. at 344.
    After determining that the grant to the Railroad did not itself extinguish
    the Walapais’ title, the court addressed whether the Walapais’ title had been
    extinguished prior to the 1866 grant. Before doing so, the court reiterated the United
    States’ exclusive right to extinguish aboriginal title, “whether it be done by treaty, by
    the sword, by purchase, by the exercise of complete dominion adverse to the right of
    occupancy, or otherwise.”
    Id. at 347.
    The court looked to a number of congressional acts to determine if those acts
    extinguished the Walapais’ title. The court first looked to the Act of February 27,
    1851, which extended the Indian Trade and Intercourse Act of June 30, 1834, to
    cover the tribes in Arizona and New Mexico.
    Id. Because the 1851
    Act “plainly
    indicate[d] that in 1851 Congress desired to continue in these territories the
    unquestioned general policy of the Federal government to recognize such right of
    occupancy,” the court determined that it did not extinguish the Walapais’ title.
    Id. at 348.
    The court also looked to the two acts from 1854 and 1870, which established
    the Surveyor General of New Mexico and directed him “to ascertain the origin,
    nature, character, and extent of all claims to lands under the laws, usages, and
    customs of Spain and Mexico[,] and to make a report on all such claims as originated
    before the cession of the territory to the United States.”
    Id. at 349.
    Because only
    Congress has the authority to extinguish title, however, the court determined that the
    only extinguishment could have come from congressional action taken based on the
    19
    Surveyor General’s report.
    Id. at 350.
    Because the court was “not advised that
    Congress took any such action,” the Walapais’ title was not extinguished.
    Id. at 351.
    The court also looked to see if the creation of reservations or forcible removal
    extinguished the Walapais’ title. In 1865, Congress established the Colorado River
    reservation, and suggested that various tribes, the Walapais included, should settle
    there.
    Id. at 351–52.
    After the Walapais refused this offer, they were forcibly
    removed (without congressional mandate) to the reservation in 1874.
    Id. at 354.
    They left it the following year and returned to their old country.
    Id. at 355.
    The
    court concluded that “[n]o forfeiture can be predicated on an unauthorized attempt to
    effect a forcible settlement on the reservation unless we are to be insensitive to the
    high standards for fair dealing in light of which laws dealing with Indian rights have
    long been read.”
    Id. at 355–56.
    It was not until 1881, when the tribe requested that the government create a
    reservation for them, that any of the Walapais’ aboriginal rights were extinguished.
    A reservation was created, and “[t]here was an indication that the Indians were
    satisfied with the proposed reservation. A few of them thereafter lived on the
    reservation; many of them did not. While suggestions recurred for the creation of a
    new and different reservation, this one was not abandoned.”
    Id. at 357
    (footnotes
    omitted). The court therefore concluded that the reservation’s “creation at the
    request of the Walapais and its acceptance by them amounted to a relinquishment of
    any tribal claims to lands which they might have had outside that reservation.”
    Id. at 357
    –58 
    (footnoted omitted).
    20
    Santa Fe Pacific established that 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.” 314 U.S. at 347
    . However, in so establishing,
    the court placed great emphasis on “the policy of the federal government from the
    beginning to respect the Indian right of occupancy, which could only be interfered
    with or determined by the United States.”
    Id. at 345
    (quoting Cramer v. United
    States, 
    261 U.S. 219
    , 227 (1923)). The court admonished, “it would take plain and
    unambiguous action to deprive the Walapais of the benefits of that policy.”
    Id. at 346.
    For “an extinguishment cannot be lightly implied in view of the avowed
    solicitude of the Federal Government for the welfare of its Indian wards.”
    Id. V.
       DISCUSSION
    The controlling question of law in this appeal is whether, as a matter of law, a
    sovereign can extinguish aboriginal rights by the mere imposition of its authority and
    without any affirmative adverse act. We hold that it cannot.
    A. Extinguishing Aboriginal Rights Requires an Affirmative Act
    Courts have addressed the extinguishment of aboriginal rights numerous times.
    They have addressed extinguishment by treaty, see, e.g., Oregon Dep't of Fish &
    Wildlife v. Klamath Indian Tribe, 
    473 U.S. 753
    , 770 (1985) (analyzing an 1864 treaty
    ceding land to the United States to determine whether hunting and fishing rights were
    retained); extinguishment by purchase, see, e.g., Mitchel v. United States, 
    34 U.S. 711
    (1835) (holding that a tribe’s aboriginal rights were extinguished when Spain
    21
    ratified the sale of tribal land by the tribe); and extinguishment by congressional act,
    see, e.g., Alaska v. Native Vill. of Venetie Tribal Gov't, 
    522 U.S. 520
    , 524 (1998)
    (explaining that the Alaska Native Claims Settlement Act “completely extinguished
    all aboriginal claims to Alaska land”); see also United States v. Gemmill, 
    535 F.2d 1145
    , 1148–49 (9th Cir. 1976) (holding that “a series of federal actions subsequent to
    1851”—which “has included expulsion by force, inconsistent use, and voluntary
    payment of [a] compensation agreement”—“clearly demonstrates that the Pit River
    Indian title has been extinguished”); Plamondon ex rel. Cowlitz Tribe of Indians v.
    United States, 
    467 F.2d 935
    , 937 (Ct. Cl. 1972) (“We need not decide whether taken
    singly, the change in congressional intent, the establishment of [a reservation which
    included the Cowlitz], or the Presidential proclamation of March 20, 1863, would be
    sufficient to extinguish Cowlitz title. We agree with the Commission that all three
    together are clearly sufficient.”).
    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
    22
    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.
    Santa Fe Pacific requires a sovereign to exercise complete dominion, not
    merely to possess complete 
    dominion. 314 U.S. at 347
    . As the Supreme Court
    recognized, all conquering sovereigns possess complete dominion. See M’Intosh at
    
    34 U.S. 574
    . However, to exercise something is not to merely possess it, but “to put
    [it] into action.” Exercise, Black’s Law Dictionary (11th ed. 2019). Thus, to
    “exercise” complete dominion, the sovereign must put its dominion into action,
    through some sort of affirmative act.
    Courts repeatedly refer to “acts” or “action” when discussing extinguishment.
    See Alcea Band of 
    Tillamooks, 329 U.S. at 46
    (“As against any but the sovereign,
    original Indian title was accorded the protection of complete ownership; but it was
    vulnerable to affirmative action by the sovereign, which possessed exclusive power
    to extinguish the right of occupancy at will. Termination of the right by sovereign
    action was complete and left the land free and clear of Indian claims.” (emphasis
    added)); Oneida Cty. v. Oneida Indian Nation of N.Y. State (“Oneida II”), 
    470 U.S. 226
    , 245 (1985) (noting that the Nonintercourse Act of 1793 “merely codified the
    principle that a sovereign act was required to extinguish aboriginal title”); Oneida 
    I, 414 U.S. at 667
    (“That right, sometimes called Indian title and good against all but
    the sovereign, could be terminated only by sovereign act.” (emphasis added)); Pueblo
    23
    of 
    Jemez, 790 F.3d at 1158
    (“[T]he grant does not impair aboriginal title, which the
    grantee must respect until aboriginal title has been extinguished by treaty, agreement,
    or other authorized actions of the Indians or Congress.” (emphasis added)); 
    Gemmill, 535 F.2d at 1147
    (“[W]hen the Government clearly intends to extinguish Indian title
    the courts will not inquire into the means or propriety of the action . . . .” (emphasis
    added));
    id. at 1148
    (“The relevant question is whether the governmental action was
    intended to be a revocation of Indian occupancy rights . . . .” (emphasis added)).
    Indeed, we could find no case that determined that aboriginal rights were
    extinguished without pointing to a specific governmental act that terminated those
    rights, be it a treaty, a statute, a congressional appropriation of funds, or a
    presidential proclamation.
    The need for an affirmative act is further underscored by the analysis dictated
    by precedent, which requires courts to find a “clear and plain indication” that the
    sovereign intended to extinguish aboriginal title. See Santa Fe Pac. R.R. 
    Co., 314 U.S. at 353
    ; see also United States v. Dion, 
    476 U.S. 734
    , 738–39 (1986) (“[A] clear
    and plain intent must be demonstrated.”). Courts have determined that there was no
    sovereign intent to extinguish aboriginal title adequately demonstrated even by the
    following actions: when Congress specifically created a reservation for a particular
    tribe
    , id. at 353–54;
    when Congress granted tribal land to a railroad, Buttz v. N. Pac.
    R.R., 
    119 U.S. 55
    , 66 (1886); or when a treaty ceding tribal land did not explicitly
    mention rights to hunt and fish, Mille Lacs Band of Chippewa Indians v. Minnesota,
    
    124 F.3d 904
    , 926 (8th Cir. 1997), aff’d sub nom. Minnesota v. Mille Lacs Band of
    24
    Chippewa Indians, 
    526 U.S. 172
    (1999). In those cases, the sovereign took
    affirmative action specifically referencing the Indian tribes in question and, still, the
    sovereign’s intent to extinguish was not “clear and plain.” Without an affirmative
    adverse act, there is neither directed sovereign action nor consequences from that
    action from which a court may find a clear and plain indication that the sovereign
    intended to extinguish aboriginal title.
    Determining adversity requires an inquiry into the governmental action and its
    impact on the specific tribe. For example, in Cowlitz, the court explained that the
    government had opened the Cowlitz land for white settlement, but it declined to find
    that such action constituted extinguishment because the small number of settlements
    that actually occurred “did not significantly disrupt the Cowlitz way of life.”
    Plamondon ex rel. Cowlitz Tribe of 
    Indians, 467 F.2d at 938
    . Thus, adversity was
    determined not by the general fact that the land could be settled, but by looking at
    what actually happened.
    For the foregoing reasons, we conclude 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. See Santa Fe Pac. R.R.
    
    Co., 314 U.S. at 347
    .
    B. Spain’s General Administration of Its Water Administration 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
    25
    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
    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
    26
    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.
    VI.    CONCLUSION
    All conquering sovereigns possess authority over their land and resources.
    However, not until the sovereign exercises this authority through clear and adverse
    affirmative action may it extinguish aboriginal rights. We therefore REVERSE the
    district court’s order and REMAND the case to the district court for further
    proceedings consistent with this opinion.
    27
    18-2164, 18-2167, United States v. Abouselman
    TYMKOVICH, C.J., dissenting.
    It is apparent to me that the resolution of this appeal is not likely to materially
    advance the ultimate termination of this 37-year-old case, see 28 U.S.C § 1292(b), and
    that this interlocutory appeal therefore should not have been granted. The question of
    whether aboriginal water rights have been extinguished is an undeniably important aspect
    of this case. But deciding that issue in a vacuum without also considering related issues
    of quantification and the settled expectations of the many interested parties in this case, is
    not the best way to achieve a just result. For these reasons, I respectfully dissent.
    Appeals pursuant to §1292(b) should be sparingly granted. As we have observed,
    “the enlargement of the right to appeal should be limited to extraordinary cases in which
    extended and expensive proceedings probably can be avoided by immediate final
    decisions of controlling questions encountered early in the action.” Utah State Dep't of
    Health v. Kennecott Corp., 
    14 F.3d 1489
    , 1495 (10th Cir. 1994) (quoting Tenth Circuit
    committee report reprinted at 1958 U.S.C.C.A.N. 5255, 5262). This is not such a case.
    This appeal will not avoid extended and extensive proceedings and it does not come early
    in the case, but some 35 years after it was filed. Indeed, as Judge Ebel states in his
    opinion, this litigation has a “long and fragmented history,” Maj. Op. at 11, which has not
    been improved by the granting of this piecemeal appeal.
    More to the point, this appeal addresses only two of five threshold issues that were
    identified as necessary to resolve before the parties could even put together a discovery
    plan.1 If an interlocutory appeal is permitted after the district court rules on each of the
    remaining threshold issues, it will take the better part of a decade to even arrive at a point
    where the parties can craft a plan for discovery. Going forward, this case will be much
    better served by avoiding piecemeal appeals—particularly given how intertwined the
    issues are, as further discussed below.
    On the merits, the majority determines the Pueblos’ aboriginal water rights have
    not been extinguished. But this cannot mean as a practical matter that the Pueblos now
    have limitlessly expanding water rights. The Pueblos, while disclaiming an intention to
    seek an expanding water right, nonetheless assert that “their aboriginal water rights
    include an amount sufficient to satisfy their future needs.” Pueblos’ Reply Br. at 18
    (emphasis added). This seems a matter of semantics, but in any case it is problematic to
    T      1
    The questions were as follows:
    (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?
    (2) Does the Winans doctrine apply to any of the Pueblos’ grant or trust lands?
    (3) If the Pueblos have aboriginal water rights or Winans reserved water rights,
    what standards apply to quantify such rights?
    (4) Do the Pueblos have Winters reserved rights appurtenant to their trust lands
    and, if so, how are those rights to be measured?
    (5) Are the Pueblos entitled to any riparian rights?
    App. at 304.
    2
    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).
    To be sure, the Pueblos disclaim any intention of seeking a limitless water right.
    But even if their purported future water needs were limited to practicable irrigable
    acreage, see Arizona v. California, 
    373 U.S. 546
    , 600–01 (1963), it is difficult to see how
    their claimed entitlement to a quantity of water to satisfy their future homeland needs
    would leave water for any other water rights holders on the Jemez.2 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—unless the district court takes into
    account at least several important considerations.
    First, on remand the district court may wish to consider whether, although the
    imposition of Spanish law did not extinguish the Pueblos’ aboriginal water rights, it
    nonetheless placed certain limits on those rights by virtue of the arrival of non-Pueblo
    water users on the Jemez River. The competing experts in this case agreed that once non-
    T      2
    The Pueblos’ claim to expanding or future needs seems inconsistent with the
    doctrine of aboriginal rights. Even assuming for purposes of argument that the doctrine
    applies as fully to water as it does to land, it requires the Pueblos to show actual,
    exclusive and continuous use and occupancy for a long period of time. Pueblo of Jemez
    v. United States, 
    790 F.3d 1143
    , 1165 (10th Cir. 2015); United States v. Pueblo of San
    Ildefonso, 
    513 F.2d 1383
    , 1394 (Ct. Cl. 1975).
    3
    Pueblo water users were allowed on the Jemez River, it was considered by the Spanish
    crown to be a shared public resource. On behalf of the government and the Pueblos, Dr.
    Cutter testified that under Spanish and Mexican law, surface interests of land were treated
    as separate from interests in common public water sources. Professor Hall, testifying on
    behalf of New Mexico and the non-Pueblo water users, agreed. Treating fee title to land
    separately from the right to water is consistent with the doctrine of prior appropriation,
    which focuses not on land ownership but on the application of water to beneficial uses.
    See, e.g., Colorado v. New 
    Mexico, 459 U.S. at 179
    n.4 (water rights “do not depend on
    land ownership and are acquired and maintained by actual use”). Even the Treaty of
    Guadalupe Hidalgo recognized that the Pueblos’ right to water was limited to that which
    was actually used.3 See New Mexico ex rel. Martinez v. City of Las Vegas, 
    89 P.3d 47
    , 60
    (N.M. 2004) (rejecting the argument that the Treaty of Guadalupe-Hidalgo provided an
    expanding Pueblo water right).
    Second, Arizona v. California is instructive. In that case, the Supreme Court held
    five tribes were entitled to a priority date back to the establishment of their respective
    reservations. But the water right was based on the size of each reservation and productive
    agricultural acreage—“practicable irrigable acreage”—to the extent that was “feasible
    and 
    fair.” 373 U.S. at 601
    . Likewise in this case, the appurtenant water right to Jemez
    T      3
    It might be helpful to analogize to real property. The Pueblos have no
    entitlement to expanded reservation lands. Likewise, they are not entitled to expanded
    water rights not tethered to historical practices.
    4
    River water should be the “feasible and fair” amount based on traditional native irrigation
    practices.
    Third, the use of water is undeniably different from the use of land, and therefore
    the district court should be wary of applying precedent involving aboriginal land rights to
    the question of water rights. The Supreme Court decision that first recognized the
    doctrine of aboriginal rights, Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823), spoke
    only of “the rightful occupants of the soil, with a legal as well as just claim to retain
    possession of it, and to use it according to their own discretion.”
    Id. at 573–74
    (emphasis
    added). More recent Supreme Court cases describing aboriginal rights continue to
    emphasize the applicability of the doctrine to land:
    It very early became accepted doctrine in this Court that although fee title to
    the lands occupied by Indians when the colonists arrived became vested in
    the sovereign—first the discovering European nation and later the original
    States and the United States—a right of occupancy in the Indian tribes was
    nevertheless recognized. That right, sometimes called Indian title and good
    against all but the sovereign, could be terminated only by sovereign act.
    Once the United States was organized and the Constitution adopted, these
    tribal rights to Indian lands became the exclusive province of the federal
    law.
    Oneida Indian Nation of N.Y. v. Oneida County, 
    414 U.S. 661
    , 667 (1974) (emphases
    added). One might respond, as the Pueblos did in their reply brief, that water rights are
    implied and part of the “bundle of sticks” comprising a tribe’s land rights. But such
    implied rights are anathema to the doctrine of prior appropriation, in which water rights
    “do not depend on land ownership and are acquired and maintained by actual use.”
    5
    Colorado v. New Mexico, 
    459 U.S. 176
    , 189 n.4 (1982). And as further discussed below,
    the Pueblos’ assertion of “implied water rights” is inconsistent with how water was
    treated under Spanish and Mexican rule.
    The difference between aboriginal rights to water and aboriginal rights to land is
    highlighted by this Circuit’s decision in Pueblo of Jemez v. United States, 
    790 F.3d 1143
    (10th Cir. 2015). In that case, the Jemez Pueblo asserted aboriginal rights to what is now
    the Valles Caldera National Preserve. The panel addressed the narrow question of
    whether the Jemez Pueblo’s aboriginal rights to that land had been extinguished by a land
    grant in 1860 to non-Puebloans. In holding that the land grant did not extinguish the
    Pueblo’s aboriginal land claim, the panel recognized that “simultaneous occupancy and
    use of land pursuant to fee title and aboriginal title could occur because the nature of
    Indian occupancy differed significantly from the occupancy of settlers.”
    Id. at 1165
    (emphasis added). That reasoning, however correct it may be with respect to land use,
    has limited application to water use—particularly where, as here, the Jemez River is fully
    appropriated. Unlike land, the use of water by one user, regardless of its purpose, is
    necessarily to the exclusion of all others.4
    T       4
    The different characteristics of water are well-recognized. Water is a “usufruct,”
    that is, a substance that is not impaired by use. See Usufruct, Black’s Law Dictionary
    (11th ed. 2019). For our purposes, after it is applied to a use, it returns back to the river
    system or evaporates and later returns somewhere as precipitation. And to be used
    beneficially for the greatest good, water must be diverted from streams or rivers and
    transported to fertile lands. No water regime ever gave one user unfettered access to all
    of the water in a river merely because it flowed across land owned in fee simple.
    6
    Fourth, the reality is we have no “law of ancestral Indian water rights.” See
    generally Felix S. Cohen, Cohen’s Handbook of Federal Indian Law, § 4.07[2][c] (2012).
    Instead, it is more a question of federal common law. See
    id. § 4.07[2][c], at
    323; Oneida
    Indian 
    Nation, 414 U.S. at 667
    . And as I’ve tried to explain, that common law is a
    problem of quantification, not existence. Legislation like the Pueblo Compensation Act
    of 1933 recognized the problem by specifying that any compensation to Pueblos for the
    fair market value of their last water rights shall not “be construed to deprive any of the
    Pueblo Indians of a prior right to use of water from streams running through or bordering
    on their respective pueblos for domestic, stock-water, and irrigation purposes . . . .”
    Pueblo Compensation Act, 48 Stat. 108, 111 (1933). In other words, Indian water rights
    devolved from an unlimited right to the stream prior to other appropriators, to a
    “reasonable” (or “feasible and fair”) amount when other users lawfully accessed the
    stream.
    Fifth, in addressing the complicated issue of quantification on remand, the district
    court should keep firmly in mind the Supreme Court’s observations in City of Sherill,
    N.Y. v. Oneida Indian Nation of N.Y., 
    544 U.S. 197
    (2005). In that case, the Oneida
    Indian Nation resisted the payment of property taxes to the City of Sherill on the basis
    that the Oneidas recently had acquired fee title to parcels in Sherill that were once part of
    the Oneida reservation. The Oneidas argued that their reacquisition of these parcels
    revived their ancient sovereignty, and that therefore Sherill had no regulatory or taxing
    7
    authority over the parcels. In holding that the Oneida Indian Nation could not unilaterally
    revive its ancient sovereignty, the Supreme Court emphasized that “longstanding
    observances and settled expectations are prime considerations.”
    Id. at 218.
    In addressing the difficult issue of quantification in this case, “longstanding
    observances and settled expectations” should be carefully considered on remand. Some
    of the non-Pueblo water users have held water rights on the Jemez River as far back as
    the late 1700s. While such rights are undeniably junior to the rights of the Pueblos, a
    quantification by the district court that grants potentially limitless expanding water rights
    for the Pueblos would upset the settled expectations of the non-Pueblo water users that
    had developed over the nearly two centuries before the Pueblos finally initiated this
    litigation in 1983. 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.
    8