ELR Citation: 50 ELR 20224
No(s). 18-2164 and 18-2167 (10th Cir. Sep 29, 2020)

The Tenth Circuit held, 2-1, that a sovereign must affirmatively act to extinguish aboriginal water rights in a lawsuit concerning water rights of the Pueblos of Jemez, Santa Ana, and Zia in the Jemez River Basin in New Mexico. The district court had concluded that the Pueblos' water rights were extinguished by Spain's assertion of sovereignty over the region in the 1500s. The appellate court found that although Spain authoritatively took control of the land, it never affirmatively extinguished the Pueblos' water rights—a repartimiento was never undertaken on the Jemez River and there was no evidence that the Pueblos ever decreased their water usage or were unable to increase their usage. It therefore reversed the district court's ruling and remanded for further proceedings.