537 F.

2d 1102

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.
R. Lee AAMODT, et al., Defendants-Appellees,
United States of America, et al., Intervenors and Appellants.
Nos. 75--1069, 75--1106.

United States Court of Appeals,

Tenth Circuit.
Argued Nov. 12, 1975.
Decided June 28, 1976.
Rehearing Denied Aug. 11, 1976.

Walter Kiechel, Jr., Deputy Asst. Atty. Gen., Washington, D.C. (Wallace
H. Johnson, Asst. Atty. Gen., Washington, D.C., Victor R. Ortega, U.S.
Atty., Albuquerque, N.M., and Kathryn A. Oberly and Charles N. Estes,
Attys., Dept. of Justice, Washington, D.C., on the brief), for appellant
U.S.
Philip R. Ashby and William C. Schaab, Albuquerque, N.M. (John D.
Donnell, Zinn & Donnell, Santa Fe, N.M., Ashby, Rose & Sholer and
Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N.M., on the brief),
for Pueblo appellants.
Paul L. Bloom, Sp. Asst. Atty. Gen., Santa Fe, N.M., for appellee State of
N.M.
Neil C. Stillinger of Watson, Stillinger & Lunt, Santa Fe, N.M. (Sumner
Buell of Montgomery, Federici, Andrews, Hannahs & Buell, Thomas B.
Catron of Catron, Catron & Sawtell, G. Stanley Crout of Bigbee, Byrd,
Carpenter & Crout, L. C. White of White, Koch, Kelly & McCarthy,
Santa Fe, N.M., on the brief), for private landowner appellees.
James C. Thompson, Espanola, N.M., filed a brief for amicus curiae Bd.
of Directors EL Llano Conservancy Dist.
L. Lamar Parish of Ussery, Burciago & Parrish, Albuquerque, N.M., filed
a brief for amici curiae Pueblo of Isleta and the Pueblo of Sandia.

Before BREITENSTEIN, HILL and BARRETT, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The basic issue before us is whether water uses by Pueblo Indians in New
Mexico are controlled by state water law based on the doctrine of prior
appropriation. The United States District Court for the District of New Mexico
made an interlocutory order that the Indian uses were controlled by state law.
On the petitions of the United States and the Indians we allowed an appeal in
No. 75--1106 pursuant to 28 U.S.C. 1292(b) and now reverse.

In 1966 New Mexico brought suit in accordance with its water adjudication
statutes, Chap. 75, Art. 4, N.Mex.Stats.Ann., 1953, for determination of rights
to the use of water of the Nambe-Pojoaque River System. That system, lying
entirely in New Mexico, is tributary to the Rio Grande. Substantially all of the
drainage area is within the boundaries of the San Ildefonso, Pojoaque, Nambe,
and Tesuque Pueblos. The United States, the four Pueblos, and about 1,000
others were named defendants. The United States, on its own behalf and on
behalf of the Pueblos, intervened to remove any immunity problem and was
aligned as plaintiff. No jurisdictional question is presented. The district court
referred the case to a Special Master.

The United States intervened in its proprietary capacity as owner of the Santa
Fe National Forest and in its fiduciary capacity as trustee or guardian for the
Pueblos. The Commissioner of Indian Affairs determined that provision of
private counsel for the Pueblos was the only practical means of protecting fully
the rights of the Pueblos in the face of significant conflicts of interest between
the Pueblos and the United States, the far-reaching importance of the suit, and
the urgency of the situation. A contract for private legal counsel was approved
by the delegate of the Secretary of the Interior and funds were provided by the
Bureau of Indian Affairs.

On behalf of the Pueblos the private attorneys filed a complaint in intervention.

The court, on its own motion, held that the private attorneys 'may not separately
and independently represent the Pueblos which are already represented by
government counsel', and struck the tendered complaint in intervention. No. 75-1069 is an appeal by the Pueblos from this order. The issues raised will be
discussed later.

Historical background is important to an understanding of the controversy.

When, in 1541--1543, the first Spanish Conquistadors invaded what is now

known as New Mexico, they found numerous established Indian agricultural

communities. Among those were the Pueblos with which we are concerned.
The Kingdom of Spain ruled the area until 1821 when Mexico won
independence. The Republic of Mexico held dominion until 1848 when, by the
Treaty of Guadalupe Hidalgo, 9 Stat. 922, it ceded the the area to the United
States. Articles VIII and IX of that treaty protect rights recognized by prior
sovereigns. In 1851, Congress extended the provisions of the Indian Trade and
Intercourse Act of 1834, 4 Stat. 729, to the Indians of the territory newly
acquired from Mexico. See 9 Stat. 574, 587. The Act of 1834 prohibited
settlement on lands belonging to Indian Tribes and provided that Indians could
sell their lands only to the United States. The Pueblos' land titles had long been
recognized by the Spanish and Mexican governments. In 1858, these titles were
confirmed by Congress. 11 Stat. 374.
6

Efforts of federal officials to protect the Pueblos' property were frustrated by

the New Mexico territorial courts, which held that the Pueblos were outside the
protection of federal laws. See United States v. Lucero, 1 N.Mex. 422, 442. The
rationale of the New Mexico court was upheld by the United States Supreme
Court in United States v. Joseph, 94 U.S. 614, 24 L.Ed. 295.

The 1910 New Mexico Enabling Act, 36 Stat. 557, 558--559, specified that the
term 'Indian country' includes 'all lands now owned or occupied by the Pueblo
Indians' and that such lands are 'under the absolute jurisdiction and control of
the Congress of the United States.' The constitutionality of this provision was
upheld in United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107,
which specifically overruled United States v. Joseph. Congress then had to
consider the situation created by the activities of non-Indians in acquiring and
occupying land within the Pueblos after acquisition of federal sovereignty. The
Pueblo Lands Act of 1924, 43 Stat. 636, created the 'Pueblo Lands Board' and
authorized it to investigate and determine the claims of both the Indians and
non-Indians to Pueblo land. In 1933 Congress authorized payment of claims
presented under the 1924 Act. 48 Stat. 108. The 1924 and 1933 Acts will be
discussed in detail later.

In the arid southwestern states water scarcity presents a critical problem.

Colorado River Water Conservancy District v. United States, --- U.S. ---, 96
S.Ct. 1236, 47 L.Ed.2d 483, 44 L.W. 4372, 4373 (1976). The New Mexico
constitution, adopted in 1911, establishes the doctrine of prior appropriation to
control the use of water. N.Mex.Const. Art. XVI, 2. One acquires a right to
water by diversion and application to a beneficial use. Priority of appropriation
gives the better right. Ibid. Determination of water rights is made in suit
brought by the State. N.Mex.Stats.Ann., 1953, 75--4--4 through 75--4--8.

The instant suit to determine rights to the use of the waters of the NambePojoaque System was brought by the State in federal district court.
9

New Mexico and the private parties joined as defendants assert that the rights of
the Pueblos are governed by the state law of prior appropriation. The United
States and the Indians say that (1) the Indians have a reserved right prior to that
of all non-Indians and (2) the Indians have an aboriginal right derived from the
laws of Spain and Mexico and recognized by the United States in the Treaty of
Guadalupe Hidalgo. This controversy is presented in case No. 75--1106.

I.
10

We first consider procedural problems. No. 75--1069 is an appeal from the

district court's denial of the right of the Pueblos to representation by private
attorneys and its rejection of the complaint in intervention filed by them on
behalf of the Pueblos. The State and the private defendants-appellees moved to
dismiss the appeal because the notice of appeal was not signed by counsel for
the United States but by private counsel who have no standing to represent the
Pueblos.

11

Reliance is had on Waters v. Western Company of North America, 10 Cir., 436

F.2d 1072, which dismissed, as improvidently granted, an appeal from an
interlocutory order. The court noted that the attorney filing the petition for
review was not the sole counsel of record of the petitioner. Ibid. at 1073. The
court recognized the ethical problem involved. Ibid. In Waters, the various
counsel were not in agreement. In the instant case counsel for the United States
have filed a memorandum opposing the motion to dismiss. Thus harmony
rather than contrariety exists among counsel for the Pueblos and counsel for the
United States. The orders under attack did not operate against the United States.
It had no reason to appeal or to join in an appeal.

12

The State also asserts that the district court's orders denying representation by
private counsel and dismissing the Pueblos' complaint in intervention are not
final decisions appealable under 28 U.S.C. 1291. Fullmer v. Harper, 10 Cir.,
517 F.2d 20, 21, holds that the denial of a motion to disqualify counsel is a final
decision within the meaning of 1291. In that case a remand was ordered for
the determination of facts because a serious ethical question was presented. No
such complications are present in the instant case. Appealability under 1291
does not depend on the grant or denial of a motion to disqualify. The grant of
the motion is just as final as the denial thereof. The order is appealable under
1291.

13

The denial of intervention is appealable if the applicant can intervene as a

matter of right under Rule 24(a), F.R.Civ.P., or if the trial court abused its
discretion in denying a permissive intervention under Rule 24(b). Degge v. City
of Boulder, Colorado, 10 Cir., 336 F.2d 220, 221. The Pueblos claim an interest
in the water which is the subject of the action and disposition may affect their
ability to protect that interest. The claim that the Pueblos are adequately
represented by government counsel is not impressive. Government counsel are
competent and able but they concede that a conflict of interest exists between
the proprietary interests of the United States and of the Pueblos. In such a
situation, adequate representation of both interests by the same counsel is
impossible. The Pueblos had a right under Rule 24(a) to intervene and the
denial of that right is appealable.

14

The motion to dismiss the appeal in No. 75--1069 is denied, and we turn to the
merits of that appeal.

II.
15

Little more need be said about the right of the Indians to private counsel. The
obligation of the United States to fulfill its fiduciary duties to the Pueblos does
not diminish the rights of the Pueblos to sue on their own behalf. See
Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 370--371, 88 S.Ct. 982, 19
L.Ed.2d 1238 and cases there cited. The instant case is not like Pueblo of
Picuris v. Abeyta, 10 Cir., 50 F.2d 12 where the private counsel for a pueblo
and counsel for the United States took contrary positions on the appeal of a
case and the court held that the Attorney General of the United States, not the
private counsel, controlled the course of the litigation. Ibid. at 14. The United
States in the case at bar recognizes and supports the right of the Pueblos to
private representation.
Section 2, Title 25, U.S.C. provides:

16 Commissioner of Indian Affairs shall, * * * have the management of all Indian

'The
affairs and of all matters arising out of Indian relations.'
17

Acting under this broad authority, the Commissioner decided that 'private
counsel independent of any possible conflict of interest should be furnished to
represent the Indian interests.' His action was a fair and proper exercise of his
discretion and was entirely compatible with the fiduciary obligations of the
United States to the Indians. The district court erred in denying the rights of the
Pueblos to independent representation by private counsel.

18

We have noted that the intervention on behalf of the Pueblos was an

intervention of right. As such, the express terms of Rule 24(a) require that the
intervention be permitted. In rejecting the intervention the district court violated
the rule and its order may not stand.

III.
19

In No. 75--1106 we granted an appeal under 28 U.S.C. 1292(b) from the

interlocutory ruling of the district court that the rights of the Pueblos to the use
of water of the Nambe-Pojoaque System are subject to the appropriation laws
of New Mexico. A motion of the Pueblos asserts that the State of New Mexico
lacks standing to participate in the appeal because it does so as parens patriae
and in that capacity may not attack rights accorded to the Pueblos under 9 of
the Pueblo Lands Act of 1933, 48 Stat. 108, 111. All parties find comfort in,
and rely on, the 1933 Act. The State says that the Act subjects the Pueblos'
rights to the State appropriation laws and the Pueblos say that it does not. The
issue is for determination when the merits of the case are considered. We will
not dispose of it on a procedural motion.

20

The Pueblos also contend that as parens patriae the State represents all of its
citizens and is wrongfully asserting rights in favor of the non-Indian group
against the Indian group. Both the non-Indians and the Indians are citizens of
New Mexico. As parens patriae a State may not assert claims on behalf of
particular citizens. See Hawaii v. Standard Oil Co., 405 U.S. 251, 258--259 n.
12, 92 S.Ct. 885, 31 L.Ed.2d 184.

21

In the case at bar the State does not act as parens patriae. It brought suit in
accordance with the provisions of 75--4--4 through 75--4--8,
N.Mex.Stat.Ann., 1953, for determination of rights to the use of water of the
Nambe-Pojoaque System. Adjudication of rights is essential to the operation of
the appropriation doctrine. See El Paso & R.I. Ry. Co. v. District Court, 36
N.M. 94, 8 P.2d 1064, 1069. The New Mexico constitution provides, Art. XVI,
2, that the unappropriated water of every natural stream belongs to the public
and is subject to appropriation in accordance with the laws of the State. Acting
under statutory authority the State sued all persons, both Indians and nonIndians, claiming water rights. The presence of all claimants is necessary for a
decree to be of any value. See United States v. District Court of Eagle County,
401 U.S. 520, 525, 91 S.Ct. 998, 28 L.Ed.2d 278. In a water adjudication suit
collision between private rights and federal rights does not affect the validity of
the proceedings or the right of the State to maintain the suit. Ibid. at 526, 91
S.Ct. 998; see also Colorado River Water Conservancy District v. United
States, --- U.S. ---, 96 S.Ct. 1236, 47 L.Ed.2d 483, 44 L.W. 4372, 4375 (1976).

The Pueblos' motion attacking the standing of the State of New Mexico is
denied.
IV.
22

On the merits, the Pueblos contend that their rights are not limited by the
appropriation doctrine. Their first claim is that they have a reserved right to so
much water as is needed for the irrigation of the irrigable land within each
pueblo.

23

In United States v. Rio Grande Dam and Irrigation Company, 174 U.S. 690, 19
S.Ct. 770, 43 L.Ed. 1136, the Court held that the Territory of New Mexico
could reject the common law riparian doctrine and adopt the appropriation
doctrine. In so doing, the Court said, Ibid. at 703, 19 S.Ct. at 775:

24
'(T)hat,
in the absence of specific authority from Congress a State cannot by its
legislation, destroy the right of the United States, as the owner of lands bordering on
a stream, to the continued flow of its waters; so far at least as may be necessary for
the beneficial uses of the government property.'
25

The reserved rights of the Indians to water was first recognized in Winters v.
United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340. That was a suit by the
United States to restrain the construction of a dam on the Milk in Montana
which prevented the water from flowing to the Fort Belknap Indian
Reservation. The reservation was created by a treaty or agreement between the
United States and the Indians with the approval of Congress. The reservation
lands 'were arid, and, without irrigation, were practically valueless.' Ibid. at
576, 28 S.Ct. at 211. The Court said, Ibid. at 577, 28 S.Ct. at 212:

26 power of the Government to reserve the waters and exempt them from
'The
appropriation under the state laws is not denied, and could not be. (Citing cases)
That the Government did reserve them we have decided, and for a use which would
be necessarily continued through years.'
27

Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542, was an
original jurisdiction interstate suit to determine rights to the use of waters of the
Colorado River. The United States on behalf of five Indian Reservations
asserted rights to mainstream water. One reservation was created by Act of
Congress and the other four by Executive Orders. Ibid. at 595--596, 83 S.Ct.
1468. The Court rejected the Arizona contention that water rights could not be
reserved by Executive Order. Ibid. at 598, 83 S.Ct. 1468. The Court expressly
approved the Winters decision and held that, 'the United States did reserve the

water rights for the Indians effective as of the time the Indian Reservations
were created.' Ibid. at 600, 83 S.Ct. at 1498.
28

Cappaert v. United States, --- U.S. ---, 96 S.Ct. 2062, 48 L.Ed.2d 523, 44 L.W.
4756 (1976), recognizes the reserved water rights doctrine and says that: 'The
doctrine applies to Indian reservations and other federal enclaves,
encompassing water rights in navigable and nonnavigable streams.' Ibid. at ---,
96 S.Ct. at 2069, 44 L.W. at 4759. The Court rejected the contention that there
must be 'a balancing of competing interests' and after referring to the Winters
decision said: 'The Court held that when the Federal Government reserves land,
by implication it reserves water rights sufficient to accomplish the purposes of
the reservation.' Ibid. The Court rejected the argument that the Federal
Government must perfect its implied water rights according to state law and
said '(f)ederal water rights are not dependent on state law or state procedures.'
Ibid. at ---, 96 S.Ct. at 2073, 44 L.W. at 4760--4761.

29

The Pueblos did not obtain any rights by either treaty with the United States or
by Executive Order. The Spanish and Mexican governments recognized the
Pueblos' land titles. In the Treaty of Guadalupe Hidalgo, the United States
agreed to protect rights recognized by prior sovereigns. In 1858, Congress
specifically confirmed the land titles of the Pueblos with which we are
concerned. 11 Stat. 374.

30

The 1876 Term decision in United States v. Joseph, 94 U.S. 614, 24 L.Ed. 295,
was an action by the United States to recover a penalty under the mentioned
1834 Act for settlement on land of the Pueblo of Taos in New Mexico. The
Court differentiated the Pueblo Indians from the nomadic Indians and said that
the 1834 and 1851 Acts were not applicable to the Pueblos. Ibid. at 617. The
Court also noted the 1858 confirmation of the Pueblo titles, Ibid. at 619, and
said, 'that this was a recognition of the title previously held by these people,
and a disclaimer by the government of any right of present or future
interference, * * *.'

31

The Joseph decision was overturned by United States v. Sandoval, 231 U.S. 28,
34 S.Ct. 1, 58 L.Ed. 107. That was a prosecution for the sale of liquor in a New
Mexico pueblo. The indictment was dismissed on the ground that the pertinent
federal statute was invalid as applied to the Indian pueblos in New Mexico. The
Court reversed and said, Ibid. at 39, 34 S.Ct. at 3, that:

32 people of the pueblos, although sedentary rather than nomadic in their

'The
inclinations, and disposed to peace and industry, are nevertheless Indians in race,
customs, and domestic government.'

33

The Court noted that the United States has treated the pueblos 'as requiring
special consideration and protection, like other Indian communities.' Ibid.

34

United States v. Candelaria, 271 U.S. 432, 46 S.Ct. 561, 70 L.Ed. 1023, was an
action brought by the United States to quiet title to lands within a New Mexico
pueblo. The district court held that suit was barred by prior litigation to which
the United States was not a party. The case reached the Supreme Court on a
question certified by the Court of Appeals of the Eighth Circuit. The Court
referred to the 1834 Act, 4 Stat. 730, relating to the alienation of Indian lands
and the 1851 Act, 9 Stat. 587, extending the 1934 Act to "the Indian tribes' of
New Mexico.' The Court said, Ibid. at 441, 46 S.Ct. at 563:

35
'While
there is no express reference in the provision to Pueblo Indians, we think it
must be taken as including them. They are plainly within its spirit, and, in our
opinion, fairly within its words, 'any tribe of Indians."
V.
36

The Pueblos contend that under the mentioned decisions they have a reserved
right to water of the Nambe-Pojoaque System for the irrigation of the irrigable
lands within the pueblos. The State of New Mexico and the non-Indian
appropriators say that whatever reserved rights the Pueblos may have had were
lost by the Pueblo Lands Acts of 1924 and 1933.

37

The decision in United States v. Joseph placing the Pueblos outside the
protection of federal laws resulted in the acquisition and occupation by nonIndians of land within the Pueblos. The United States did nothing to protect the
Pueblos. The Sandoval and Candelaria 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.

38

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.

39

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.

40

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:

41 Indian has, accordingly, lost, under court decrees, under the doctrine of res
'The
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.'
42

The State contends that by supporting and accepting the increased

compensation the Pueblos have lost the right to claim reserved rights to the
water. Section 6 of the 1933 Act provides that the Pueblos may elect to take the
authorized compensation and, if they do not so elect, any independent suit by
them to determine titles must be brought within one year from the approval of
the Act. Neither election by them to accept nor failure to sue amounts to waiver
or estoppel. They took what their guardian offered and released nothing. Title to
the lands and water remaining in the Pueblos lies in their guardian or trustee,
the United States. Estoppel does not run against the United States when it acts
as trustee for an Indian tribe, United States v. Ahtanum Irrigation District, 9
Cir., 236 F.2d 321, 334, cert. denied 352 U.S. 988, 77 S.Ct. 386, 1 L.Ed.2d 367,
and cases there cited. No reason is asserted to take the instant case out of the
general rule. The United States supports the claims of the Pueblos as against
the non-Indians.

43

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.
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
44

extinguish an Indian right that has been long existent by a present act of Congress.'
45

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 9 of the 1933 Act and reads:

46
'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.'
47

Section 9 does not restrict the Pueblos' rights to water for use on retained land
to the New Mexico appropriation laws. The provision that the Pueblos' rights
are not subject to loss by nonuse or abandonment is a far cry from a submission
of those rights to New Mexico law. The argument that protection against loss
by abandonment is an implied recognition of New Mexico appropriation law
because no protection against such loss is needed unless New Mexico law
applies is unconvincing. In compliance with the Enabling Act, 36 Stat. 557,
558--559, the New Mexico Constitution, Art. XXI, 2, disclaims title to lands
'owned or held by any Indian or Indian Tribes' and recognized with respect to
such land 'the absolute jurisdiction and control of the Congress of the United
States.' Any intent of Congress to relinquish its jurisdiction and control over the
lands and water rights of the Pueblos must be express. It may not be implied
from a tortuous construction of the language used in 9.

48

The State's argument that 9 was adopted as a neutral savings clause and
intended to leave the question of priorities to later judicial decision is refuted by
the legislative history. When the bill was before the 72d Congress,
H.Rep.No.820 thereon stated, p. 6, that:

49 question of priority of water rights will necessarily be one for judicial

'The
determination, and this amendment is designed and intended to leave the matter to
the courts for future action.'
50

The 72d Congress did not pass the bill. The Committee reports to the following
Congress omitted the quoted language and approved 9 as later adopted. The
omission indicates that Congress intended 9 to have a greater effect than the
submission of the controversy to the courts.

VI.
51

In the Winters case the reserved water right doctrine was applied to a
reservation created by Congress. 207 U.S. at 577, 28 S.Ct. 207. In Arizona v.
California that doctrine was extended to Indian reservations created by
Executive Orders. 373 U.S. at 596, 83 S.Ct. 1468, notes 99 and 100. Cappaert
was concerned with a National Monument created by Presidential proclamation
issued under the Act for the Preservation of American Antiquities, 16 U.S.C.
431.

52

The Pueblos received fee simple title to their lands by the 1858 Act. 11 Stat.
374. The Sandoval decision, 231 U.S. at 39, 34 S.Ct. 1, and the Candelaria
decision, 271 U.S. at 440, 46 S.Ct. 561, each hold that the Pueblos are to be
treated like other Indian communities. The fact that the Pueblos hold fee simple
title makes no difference. Sandoval, 231 U.S. at 48, 34 S.Ct. 1.

53

The United States has not relinquished jurisdiction and control over the Pueblos
and has not placed their water rights under New Mexico law. The recognized
fee title of the Pueblos is logically inconsistent with the concept of a reserved
right. By the Treaty of Guadalupe Hidalgo the United States agreed to protect
rights recognized by the prior sovereigns. Whatever those rights may have
been, they were validated by the 1858 Act which confirmed the land claims of
the four Pueblos and which said, 11 Stat. 374, that the Commissioner of the
Land Office:

54 cause a patent to issue therefore as in ordinary cases to private individuals:

'shall
Provided, That this confirmation shall only be construed as a relinquishment of all
title and claim of the United States of any of said lands, and shall not affect any
adverse valid rights, should such exist.'
55

A relinquishment of title by the United States differs from the creation of a

reservation for the Indians. In its relinquishment the United States reserved
nothing and expressly provided that its action did not affect then existing
adverse rights. The mentioned decisions recognizing reserved water rights on
reservations created by the United States are not technically applicable.

56

Under Sandoval and Candelaria, the United States has treated the Pueblos like
other Indians. It is their guardian and trustee. The lands of the Pueblos may not
be alienated without its consent. The rights of the non-Indians, whose claims to
lands within the area confirmed in the Pueblos by the 1858 Act, were obtained
because of the failure of the United States seasonably to protect the rights of the

Pueblos.
57

Section 2 of the 1924 Act, 43 Stat. 636, provides that the Pueblo Lands Board
after its investigations and determinations shall make a report and file a copy
thereof with the United States District Court for the District of New Mexico.
Section 3, Ibid., says that upon the filing of that report the Attorney General
shall file suit in that court to quiet the Pueblos' titles to the lands for which their
title has not been extinguished. In defense the non-Indians may rely on
limitations of actions based on varying times of adverse possession. Section 4,
Ibid. at 637. Section 5, Ibid., provides that the successful assertion of a plea of
limitations shall entitle the non-Indian claimant to a decree in his favor.

VII.
58

The possible non-Indian claimants may be put in these classes:

59

1. Those who held adversely to the Pueblos before the 1858 Act.

60

2. Those who held lands within the Pueblos as the result of some circumstance
occurring after 1858, other than the failure of the United States seasonably to
protect the rights of the Pueblos.

61

3. Those whose rights depend on the limitation periods recognized by the 1924
Act.

62

As to each of these groups, the water rights of the non-Indians are not
connected with, or derived from, the Indians. They had independent origin.
Because of that derivation, the non-Indians are not in the position of allottees or
successors to allottees. The decision in United States v. Winans, 198 U.S. 371,
25 S.Ct. 662, 49 L.Ed. 1089, has no bearing on the problem presented.

63

The rights of the non-Indians are subject to the water laws of New Mexico. The
water rights of the Pueblos are not subject to the laws of New Mexico because
the United States has never surrendered its jurisdiction and control. The
problem remaining is the interrelationship of priorities for the water rights of
the Pueblos and for the non-Indians.

64

Much evidence was received by the Special Master on the meaning and effect
of the laws of Spain and Mexico pertinent to the Indians and to the use of water.
Evidence offered by the United States on the issue was rejected. The district
court did not decide what was the controlling law when the area was within the

dominion of either Spain or Mexico. We decline to make such decision in the

first instance.
65

The crucial priority date may be 1858, the date when the United States
confirmed the Pueblos' titles. It is not decisive as to any non-Indian claimant in
Group 1 who prior to 1858 had an adverse right to the use of any water. If such
claim is made and supported the district court must make a determination of the
water rights of the Pueblos under the laws of Spain and Mexico and determine
the relationship between the rights of the Pueblos and of the non-Indians in
Group 1. In so doing it must consider the evidence already received and in
addition that offered by the United States and rejected.

66

The Group 2 non-Indians are in a different position. Their acquisitions did not
result from any failure of the United States to perform its obligations as
guardian and trustee. Whatever claims are made and supported by non-Indians
in Group 2 must be determined by the district court. Without knowing what
those claims are, we can make no determination of the relationship of the
Group 2 non-Indians with the Pueblos.

67

The Group 3 non-Indians have rights based on adverse possession. We do not

know whether a water right can be acquired in New Mexico by prescription.
See Pioneer Irrigating Ditch Co. v. Blashek, 41 N.M. 99, 64 P.2d 388, 390. Be
that as it may, 9 of the 1933 Act provides that nothing contained therein 'shall
in any manner be construed to deprive any of the Pueblo Indians of a prior right
to the use of water.'

68

Pursuant to the 1924 and 1933 Acts, the ownership of some lands within the
Pueblos was recognized to be in non-Indians. That ownership carried with it
appurtenant water. The problem is the relative priority dates of the water rights
of the Pueblos and the non-Indians. Three possibilities exist. First, the Pueblos
have priority over all of the non-Indians. Second, priority of all uses, both
Pueblo and non-Indians, shall be determined by the first diversion and
application to beneficial use. Third, the 1924 and 1933 Acts put the priorities
on parity.

69

The answer depends on the meaning of 'prior right' as used in 9. That term
may not apply to a reserved right because the United States gave the Pueblos a
quit claim deed to lands which were recognized by the Treaty of Guadalupe
Hidalgo to be in their ownership. The United States had nothing to reserve.
Sandoval says, 231 U.S. at 39, 34 S.Ct. at 3, that the Pueblos 'have been
regarded and treated by the United States as requiring special consideration and

protection, like other Indian communities.' Candelaria reaffirms Sandoval and

says, 271 U.S. at 440, 46 S.Ct. at 562, that the lands of the pueblos 'like the
tribal lands of other Indians owned in fee under patents from the United States
are 'subject to the legislation of Congress enacted in the exercise of the
Government's guardianship' over Indian tribes and their property.'
70

When the 1924 and 1933 Acts were before Congress much discussion revolved
around the reserved water doctrine approved in Winters. By using the phrase
'prior rights' in 9 Congress may well have intended to recognize the Winters
decision. Such an intent is consonant with both Sandoval and Candelaria. A
recognition of any priority date for the Indians later than, or equal to, a priority
date for a non-Indian violates the mandate of Congress that nothing in the 1933
Act shall deprive the Pueblos to a prior right to the use of water.

VIII.
71

One argument remains to be mentioned. The State makes much of the

economic effect on the non-Indians who were awarded lands by the 1933 Act if
the Pueblos have a right prior to them. In Cappaert, --- U.S. at ---, 96 S.Ct. at
2070, 44 LW at 4759, the Supreme Court rejected the argument that equity
calls 'for a balancing of competing interests.' We reach the same conclusion.
The water rights of the Pueblos are prior to all non-Indians whose land
ownership was recognized pursuant to the 1924 and 1933 Acts.

72

The quantification of the Pueblos' rights presents another problem and, in the
first instance, it must be decided by the district court. Exploration of the
pertinent law of Spain and Mexico may be required. We do not know. The
attention of the district court is directed to the provisions of the decree in
Arizona v. California, 376 U.S. 340, 344--345, 83 S.Ct. 1468, 10 L.Ed.2d 542,
defining the rights of the Indians.

73

BARRETT, Circuit Judge (concurring in part and dissenting in part):

74

I fully concur in Parts I, II, III and IV of the majority opinion.

75

I agree with much of the factual chronology and legal rationale set forth in Parts
V, VI, VII and VIII of the majority opinion, but must respectfully dissent from
some important conclusions and the ultimate disposition.

76

In my view, the recent Supreme Court decision in Cappaert v. United States, --U.S. ---, 96 S.Ct. 2062, 48 L.Ed.2d 523 (44 U.S.L.W. 4756, 1976) supports my

contention that the Congress was fully cognizant of the broad scope and reach
of the so-called Winters Doctrine following the overruling of United States v.
Joseph, 94 U.S. 614, 24 L.Ed. 295 (1876) by United States v. Sandoval, 231
U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913). The Congress was well aware during
deliberations and hearings held prior to enactments of the Pueblo Lands Acts of
1924 and 1933 that the Winters Doctrine was fully applicable to all of the lands
in Pueblo ownership or possession which were granted-confirmed by the
United States on December 22, 1858, pursuant to 11 Stat. 374. The legislative
footprints confirm that the Congress was aware that under the Winters Doctrine
the 'upstream' good faith non-Indian owners of lands and appurtenant water
rights on the Nambe-Pojoaque River System would suffer the dire economic
consequences so lucidly stated in Cappaert, supra. Recognition that Winters
Doctrine water rights reserved by the United States for Indians are prior to all
non-Indian upstream users generated Congressional enactments of the Pueblo
Lands Acts of 1924 and 1933 in order to temper, at least in part, the disastrous
effects of the doctrine on the 'good faith' non-Indian settlers, both downstream
and upstream, by effecting a compromise. The 1933 Act accomplished that by
subjecting the Pueblos' otherwise Winters Doctrine water rights on the stream
system as of May 31, 1933 to the New Mexico appropriation laws. In my view
Section 9 of the 1933 Act is critical and pivotal in 'spelling out' this
compromise when considered in conjunction with the legislative history of the
two acts. Otherwise, much of that section is meaningless. For example, Winters
rights cannot be lost by nonuse or abandonment unless so decreed by the
Congress. The Congress did not attempt to impede the Pueblos to uses of the
waters on other lands in their ownership to other than Winters Doctrine rights
after May 31, 1933, in my interpretive view.
77

There are approximately 900 non-Indian parties involved in this suit who own
lands adjacent to the Nambe System and who depend upon the waters for their
economic survival. The 'priority' issue which the Congress in 1933 left to the
courts for ultimate disposition is now--almost 43 years later--exactly the issue
which must be ultimately determined in this litigation. I suggest that unlike any
other litigation heretofore presented involving Indian v. non-Indian water uses
and priorities--whether under the Winters Doctrine or rights derived under prior
sovereigns--this case does, in fact, evidence that the Congress specifically and
directly did do equity and did 'balance (the) competing interests' by means of
enactment of the Lands Board Acts of 1924 and 1933.

78

Before 'tracking' the language of the 1924 and 1933 Acts and the legislative
history of each, some basic rules relative thereto may be helpful. Congress
possesses a paramount power over the property of the Indians by reason of its
exercise of guardianship over their interests. Thus, plenary authority over the

tribal relations of the Indians has been exercised by Congress from the
beginning, and the power has always been deemed a political one not subject to
the control of the judicial department of the government. Lone Wolf v.
Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903); Stephens v.
Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041 (1899). Congress
possesses full administrative power over tribal property and if injury is
occasioned to the Indians' property as a result thereof, relief must be sought
solely by an appeal to the Congress, not to the courts. Cherokee Nation v.
Hitchcock, 187 U.S. 294, 23 S.Ct. 115, 47 L.Ed. 183 (1902). The propriety or
justification of action by the Federal Government relative to Indian lands and
properties is a political rather than a judicial question and that power is plenary.
Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39
L.Ed.2d 73 (1974); United States v. Santa Fe Pacific Railroad Co., 314 U.S.
339, 62 S.Ct. 248, 86 L.Ed. 260 (1941), rehearing denied, 314 U.S. 716, 62
S.Ct. 476, 86 L.Ed. 570 (1942); Sisseton and Wahpeton Bands of Sioux Indians
v. United States, 277 U.S. 424, 48 S.Ct. 536, 72 L.Ed. 939 (1928); Buttz v.
Northern Pacific Railroad, 119 U.S. 55, 7 S.Ct. 100, 30 L.Ed. 330 (1886).
79

While doubtful expressions in statutes are to be resolved in favor of the Indians,

still effect of legislation which proves disastrous to the Indians does not justify
the courts from departing from the terms of the acts as written; the
responsibility for justice or wisdom of legislation rests with Congress and the
fact that its effect deals harsh consequences to the Indians cannot influence the
courts, whose sole province is that of enforcing, not making the laws. United
States v. First National Bank, 234 U.S. 245, 34 S.Ct. 846, 58 L.Ed. 1298
(1914); Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306
(1886); Native American Church of North America v. Navajo Tribal Council,
272 F.2d 131 (10th Cir. 1959).

80

It is within the power of Congress to provide that the laws of a state shall
extend over and apply to Indian country and activities thereon, where they
clearly do not interfere with federal policies concerning the lands. Warren
Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 85 S.Ct. 1242, 14
L.Ed.2d 165 (1965); Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct.
562, 7 L.Ed.2d 573 (1962).

81

Finally, for 'guideline' purposes in viewing the purposes and effects of the 1924
and 1933 Acts, I deem it important to observe that federal courts must promote
not only the statutory language but also the congressional intent underlying a
statute. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). Reference to the legislative history is of utmost
importance in this case. And, in this regard, we should bear in mind that 'when

aid to construction of the meaning of words, as used in the statute, is available,

there certainly can be no 'rule of law' which forbids its use, however clear the
words may appear on 'superficial examination'.' United States v. American
Trucking Ass'ns, 310 U.S. 534, 543--544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345
(1940).
The Pueblo Lands Act of 1924
82

The Pueblo Lands Act of June 7, 1924, 43 Stat. 636, 68th Congress, Session I,
Chap. 331, S. 2932, Public. No. 253, created a three-member Board and
machinery to determine title disputes within the Pueblo grants as between the
Pueblo Indians and the non-Indians who occupied and held lands under claim
of conveyance from the Indians.

83

The purpose of the 1924 Act was to make awards to the Pueblos from the
United States through the Lands Board for those lands which the Board
determined the Pueblos had been divested of title to non-Indian settlers due to
negligence on the part of the United States government. The theory was that the
United States should pay for the losses sustained by the Pueblo Indians which it
might have and should have prevented. This could not include those lands, the
title to which passed from Pueblo ownership to non-Indian ownership under
prior sovereigns. Obviously, in such cases the United States was not at fault.

84

The Board was to investigate and file reports designed to determine whether the
lands within each Pueblo could be recovered for the Indians by suits to be
brought by the Attorney General in the nature of quiet title relative to Indian
lands, the Indian title to which the report determined not to have been
extinguished. Non-Indian occupants and claimants were expressly authorized to
raise a special statute of limitations in defense. Section 16 of the Act provided
that the Board was to separately report relative to the extent, source and
character of any water right appurtenant to the lands held in possession by the
non-Indian claimants; whether the lands or water rights could be or could have
been at any time recovered for the Indians by action of the United States; the
fair market value of the land and water rights; and a proviso that the United
States shall be liable and the Board shall award compensation to the Pueblo
Tribes within the exterior boundaries of whose lands such tract or tracts of land
are situate or to which water rights shall have been appurtenant to the extent of
any loss suffered by the Indians thereby.

85

The Act spoke clearly to the loss of Pueblo water rights in relation to their fair
market value as appurtenant to the lands which were not recoverable. The Land
Board determined and reported a per acre value not to exceed $35.00 to the

Pueblo in relation to lands lost because of the negligence of the United States;
and that the Pueblo water rights (those applicable to lands remaining in Indian
ownership) were 'superior' to the 'secondary' rights appurtenant to lands in nonIndian ownership. While the Board did not make specific reference to the
Winters Doctrine, it seems certain that the Board equated the Pueblos' 'superior'
water rights to the Winters Doctrine. To that extent, then, without using the
term 'priority' as such, the Board did reject the traditional rule applicable in the
western states that a conveyance of land results in the conveyance of the water
right appurtenant thereto. To this extent, the Board was--in effect--later
'overruled' by the Congress. However, priority rights were not resolved.
86

The 1924 Act also provided that all sums of money appropriated by the
Congress to any Pueblo or to any Indians were to be used for the purpose of
purchasing 'lands and water rights to replace those . . . lost . . . or for purchase
or construction of reservoirs, irrigation works', etc., for the benefit of the lands
held by the Pueblos.

The Interval Between the 1924 Act and the 1933 Act.
87
88

The Pueblos complained that the $35.00 per acre awards were arbitrarily low.
They pointed to certain appraisals made by the Board's own appraisers that
certain of their lands were worth $100.00 per acre. Many contentions, disputes
and arguments relative to the nature of the water rights of the Pueblos on the
one hand and that of the 'good faith' white settlers on the other, in terms of
priority use, persisted and festered.

89

In Pueblo de San Juan v. United States, 47 F.2d 446 (10th Cir. 1931), cert.
denied, 284 U.S. 626, 52 S.Ct. 11, 76 L.Ed. 533 (1931), this Court affirmed the
decree of the United States District Court for the District of New Mexico which
had confirmed an award of the Pueblo Lands Board made under the 1924 Act
wherein the Board found that of the 17,584.77 acres in the San Juan Pueblo
Grant, the Indian title to 3,449.72 acres and the water rights appurtenant thereto
had been extinguished; that 1,020.63 acres thereof could be recovered for the
Indians by a suit seasonably brought by the United States; that $60,758.94 was
the value of such lands, exclusive of improvements placed thereon; and that the
loss suffered by the Indians was $29,090.53. An award in that amount was
made. The Pueblos claimed that the award was insufficient and on appeal they
contended: (1) that an award should have been made for all the lands and water
rights as to which the Board found the Indian title to have been extinguished,
and (2) that the award for the loss of lands and water rights considered was
inadequate. On appeal this Court first confronted the contention that it was
impossible for the Pueblos, under the laws of Spain, Mexico or the United

States, to have lawfully alienated its lands and that, therefore, all of it could
have been recovered by seasonable prosecution of actions by the United States.
This Court stated:
.90. . Furthermore, during the time the lands were under the sovereignty of Spain,
lawful conveyances could have been made by the pueblo with the approval of the
sovereign; and, during the time such lands were under the sovereignty of Mexico,
there is strong basis for the proposition that the pueblo had authority to convey
without the approval of the sovereign.
91 act declares that upon review 'the report of the board shall be prima facie
The
evidence of the facts . . ..
. . . subject, however, to be rebutted by competent evidence' . . . 47 F.2d at 447.
92
93

In relation to the Pueblo contention that the method employed by the Board in
arriving at the value of the land, which it concluded could have been recovered
by seasonable prosecution of a suit by the United States was erroneous, this
Court held that the Pueblos had not offered any competent evidence in
opposition to the Board's finding. (47 F.2d 446 at 447). Further, this Court held
that the 'good faith' white settlers (who occupied some 3,449.72 acres) owned
both the surface estate and the water rights, declared to be appurtenant to the
lands. No reference was made relative to priorities. The matter was not then at
issue.

94

Congressional Report No. 492, April 24, 1924, Senate Calendar No. 522,
accompanying S. 2932, 68th Congress, after detailed historical recitation
leading to the Sandoval opinion, observed in part that 'Up to the time of the
Sandoval case . . . it had been assumed by both the Territorial and State Courts
of New Mexico, that the Pueblos had the right to alienate their property . . . as a
result . . . conflicts as to title and right to possession arose . . . hearings
disclosed that there are now approximately 3,000 claimants to lands within the
exterior boundaries of the Pueblo grants. The non-Indian claimants with their
families comprise about 12,000 persons'.

95

Senate Report No. 678, Calendar No. 720, 72nd Congress, 1st Session, May 9,
1932, submitted by Senator Bratton from the Committee on Indian Affairs
accompanying S. 2914 (enacted May 31, 1933), stated, in pertinent part:

'.96. . the object of the pending bill . . . is to compensate the Indians . . . and the nonIndians . . . for the fair market value of the lands and appurtenant water rights lost by
each . . . We recommend the . . . bill . . . with larger figures of compensation to

Indians and non-Indians . . . that the troublesome question of land titles and right of
possession to such land and appurtenant water rights may be finally disposed of . . .
the departure of the . . . Board . . . from the purpose of the Act of . . . 1924, was
defended . . . by reference to an erroneous theory that the Indians had not lost the
water rights appurtenant to the lands and hence were not entitled to an award
therefore. . . . The Act of June 7, 1924, and the pending bill do not bear upon any
question of priority of water rights between Indians and non-Indians . . . The
question of priority of water rights will necessarily be one for judicial determination,
and this amendment (Section 19) is designed and intended to leave the matter to the
courts for future action.' (Emphasis supplied).
97

Report No. 820, House of Representatives, 72nd Congress, 1st Session, March
16, 1932, was submitted by Mr. Chavez for the House Committee on Indian
Affairs to accompany H.R. 9071. This report, too, states that priority of the
respective water rights is to be left for judicial determination. The report relates
that at that time Indian awards made by the Board had aggregated $620,904.58.
Attached to the report was a memo to the Secretary of the Interior from C. J.
Rhoads, then Commissioner of the Office of Indian Affairs, dated March 14,
1932, wherein he stated, inter-alia:

98 the matter of water rights also a difference of treatment has occurred. In the
'In
board's findings efforts were made to preserve to the Indians in the lands that they
retain priority water rights for their needs, and this factor entered into the board's
findings of value of the lands and water lost to the Indians. The reservation of a
water priority was in many cases specific, was filed with the court, and should be
protected. In this bill, however, all water which, in the opinion of the proponents of
this bill, is appurtenant to the land is taken to pass with the land, and omitting as it
does all reference to water priority for the remaining Indian lands, a higher valuation
for the water lost is included in the . . . present-day appraisals than was used by the
board. Thus the act of . . . 1924, has been interpreted one way by the board and this
bill proposes to interpret it another way and to supplement or set aside the board's
findings thereby making a total of $761,954.88 additional, exclusive of the amount
found due the Laguna pueblo.' (Emphasis supplied).
99

Report No. 123, House of Representatives, 73rd Congress, 1st Session, Report
of Mr. Chavez to accompany H.R. 4014, May 10, 1933, Committee on Indian
Affairs, contained these recitals of interest:

100 Act of June 7, 1924, was passed in an effort to correct a condition which had
'The
arisen through the loss of possession by said Indians of 5,545 parcels of land
claimed by non-Indians who had settled upon and gained equitable or moral rights
thereto, involving 98,000 acres. Congress, by said Act of 1924, following the

principles announced in the Sandoval case . . . assumed the liability . . . to award

compensation to the pueblo within whose boundaries such tracts of land are situated,
or to which water rights are appurtenant to the extent of any loss suffered by said
Indians through failure of the United States seasonably to prosecute any right of the
United States or of said Indians.' (Emphasis supplied).
101 Accompanying the above report is a letter from the Secretary of the Interior
Harold L. Ickes, dated May 9, 1933, addressed to Senator Wheeler, Chairman
of the Committee on Indian Affairs which reviewed the background leading to
the Act of 1924. This letter includes these observations:
102 Act of June 7, 1924, was an attempt to compromise legal rights, vested in the
'The
Indians, with moral and possibly equitable rights which had become vested in nonIndians through lapse of time; and the act established the responsibility, resting upon
the United States Government, to compensate Indians and whites under certain
conditions defined in the Act.'
103 Pueblos were to be paid compensation . . . amounting to the market value . . . of
'The
such lands where the Pueblo title was divested . . . this compensation . . . to be
expended to procure new lands and waters to replace those surrendered or taken,
thus enabling the Pueblos to reestablish their economic independence.'
104 bill (Sec. 2) authorizes . . . an increase of compensation (to the several pueblos)
'The
. . . of $761,954.88 . . . the supplemental compensation . . . when added to the
compensation heretofore appropriated, is the value, less improvements, of the lands
and their appurtenant waters as found by the appraisers of the . . . Board.'
105
'Section
9 provides, with respect to the lands now in Pueblo ownership, that the
Indians prior rights to water shall not be subject to loss through nonuse or
abandonment.' (Emphasis supplied).
106 Report No. 73, United States Senate, 73rd Congress, 1st Session, May 15,
1933, by Senator Bratton, Committee on Indian Affairs, to accompany S. 691:
107 Accompanying this report is a letter from then Secretary of the Department of
the Interior, Mr. Ickes, dated May 9, 1933, which states in part:
108
'Section
6 provides for election by the Pueblos as to whether they will accept the
amended compensation totals as in final settlement, or will reject the settlement
through . . . suits . . . within one year after approval of the act . . . litigation . . .
affecting the ownership of these Pueblo lands, will be forever ended.'
'Section 9 provides, with respect to the lands now in Pueblo ownership, that the
109

Indians prior rights to water shall not be subject to loss through nonuse or
abandonment.'
110
'Section
5 contains language designed to facilitate and safeguard the purchase . . . of
lands and waters for the Pueblos through the expenditure of their compensation
awards . . .'
111 There were many other documentaries, reports, hearings and debates. The
question as to whether the non-Indians had obtained water rights with priorities
on an equal measuring standard to that of the Pueblos was hotly debated.
Senators Bratton and Cutting of New Mexico took a strong position, concurred
in by the Pueblos (who were represented by independent counsel) that the
Pueblos were not entitled to any preference over the non-Indian settlers and that
all were subject to the appropriation laws of New Mexico.
112 One must necessarily ask at this juncture: In view of the determination by the
Lands Board, acting pursuant to the 1924 Act, that no appraisals (and, of
course, no awards) were to be made relative to water rights in use on lands
occupied by the 'good faith' white settlers--because the Board considered them
to be 'secondary' to the 'superior' water rights held by the Pueblos applicable to
lands remaining in Pueblo ownership--what did the Pueblos lose justifying
additional appropriations under the 1933 Act? There is no doubt, in my view,
that the 1933 Act rejected the Board's determination made under the 1924 Act
that the Pueblos had not 'lost' these water rights, for which they were granted
additional compensation. Under these circumstances, how can it be said that
the Pueblos 'lost' any water rights--in the all-important sense of priority-notwithstanding the additional compensation paid for the loss if, as the
majority opinion holds, all Pueblo water rights now in use or which may
hereafter be placed in use on Pueblo lands are not subject to the appropriation
laws of New Mexico but are Winters Doctrine rights? If this be so, no
compromise was effected and the Pueblos were compensated for the loss of
water rights which are 'inferior' in terms of priority to all water rights they
retained.
113 It is significant that it was well recognized that at least 80 percent of the lands
within the exterior boundaries of the Pueblo grants had been acquired by the
white settlers (thus alienated from Indian title) in good faith.
The Pueblo Lands Act of 1933
114 The Pueblo Lands Act of May 31, 1933, 48 Stat. 108, 73rd Congress, 1st
Session, Chap. 45, H.R. 4014, Public No. 28, authorized to be appropriated

sums to the Indian Pueblos 'for the purchase of lands and water rights to replace
those which have been divested from said pueblo under the Act of June 7, 1924,
or for the purchase or construction of reservoirs, irrigation works, or other
pertinent improvements upon or for the benefit of the lands of said pueblos'.
Sec. 2 provided:
115addition to the awards made by the Pueblo Lands Board, the following sums . . .
'In
are, authorized to be appropriated:'
Sec. 9 provided:
116
'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, stock-water, 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.' (Emphasis supplied).
117 In my judgment, unlike the view of the majority, Section 9 becomes critical and
pivotal in the disposition of the 'priorities' dispute involved in this litigation.
118 The appellants argue that: (a) the 1933 Act clearly established Winters Doctrine
water rights for the Pueblo Tribes and repudiated the contention that the Pueblo
Lands Act of 1924 adopted the doctrine of prior appropriation to limit the water
rights of the Indian Pueblos; (b) Section 9 of the 1933 Act established for all of
the Pueblos the protection of priority to all lands remaining in Indian ownership
relative to the water needed for 'domestic, stock-water, and irrigation purposes'
not to be lost by 'nonuse or abandonment . . . as long as title to said lands shall
remain in the Indians'; and (c) had Congress intended that the Pueblos' rights be
defined by the doctrine of prior appropriation, it would have stated that their
rights were limited to lands previously or presently irrigated, subject to
forfeiture with respect to lands not under irrigation.
119 Appellees counter, contending that the entire logic of the 1933 Act was directed
to Congressional recognition of the correctness of the Pueblos' long-time
contention that they were entitled to additional monetary compensation
precisely because the Board, in its report submitted under the 1924 Act, had
erroneously relied on the Winters Doctrine theory in determining that the
Pueblos' water rights on lands remaining in Indian ownership were 'superior' to
the 'secondary' water rights of the white settlers. They point out that Senators
Bratton and Cutting believed, just as did representatives of the Pueblos, that the

Pueblos had lost lands and appurtenant water rights (which Senator Bratton
described as in many instances worth more than the land in this arid region) to
white settlers who had dealt in good faith. Appellees contend that these white
occupants whose title was ultimately affirmed, were unquestionably relegated
to the New Mexico law of prior appropriation--beneficial use and that the
Pueblos were, by reason of the full compensation paid for their lands and water
rights lost (which they opted for), likewise fully subject to the appropriation law
of New Mexico. Furthermore, appellees contend that the various reports and
letters leading to the 1933 Act demonstrate that Section 9 was intended simply
to prevent the loss through forfeiture or abandonment of the ancient water
rights appurtenant to the lands remaining in Pueblo ownership, and that the
entire logic of the 1933 Act was a recognition of the contention pressed by the
Pueblos and their attorneys before the Congress that they were entitled to
additional compensation precisely because the Board had relied on the
'erroneous theory' of the applicability of the Winters Doctrine in its report under
the 1924 Act.
Disposition
120 The detailed review I have made has not been undertaken for the purpose of
deciding questions not raised or resolved by the District Court. Lawn v. United
States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). My purpose, rather,
has been that of detailing facts and circumstances which I deem relevant in
order to focus on the difficult issues in conflict. I must reject the District
Court's broad sweeping 'across the board' finding that the Pueblos are subject to
the doctrine of prior appropriation and beneficial use under the laws of New
Mexico. I would set the judgment aside and remand for further proceedings.
121 I conclude that in light of the facts and circumstances leading to the May 31,
1933 Act the Congress and the Pueblos determined that in consideration of
additional appropriation of public funds the Pueblos' Winters Doctrine rights
then in 'use' or which had been in use on the reserved lands for irrigation
purposes as of May 31, 1933, were subject to the prior appropriation-beneficial
use laws of New Mexico, thus placing those lands and water rights on the same
footing as those of the non-Indian 'good faith' settlers then owning lands and
appurtenant water rights, both downstream and upstream from the Pueblo lands;
subject, however, to the proviso that at no future time could the Pueblos' water
rights be lost by non-use or abandonment. I am fully cognizant of the difficult
problem involving the determination of priorities relative to the various uses,
many of which 'track' to the Spanish and/or Mexican rules. I do not construe
Section 9 of the 1933 Act to subject those 'new' uses--that is, Pueblo Indian
uses made on lands after May 31, 1933, not previously irrigated--to the same

restriction. Those uses, in my opinion, are not subject to the 'compromise'

above referred to. They enjoy the full benefit of the Winters Doctrine. Those
uses are 'superior' to all upstream non-Indian users based upon the Pueblos'
right to apply water to those lands in an amount necessary '. . . to irrigate all the
practicably irrigable acreage (not otherwise irrigated prior to May 31, 1933) on
the reservations'. Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10
L.Ed.2d 542 (1963).
122 I would remand with instructions that the District Court conduct such further
proceedings deemed necessary and to make findings of fact and conclusions of
law detailing the relationship--in terms of specific lands, the appurtenant water
rights, their uses and priority--on the entire Nambe-Pojoaque River System
between the Pueblos and the non-Indian land owners (1) as of May 31, 1933,
and (2) from and after May 31, 1933.