United States v. Abouselman, 976 F.3d 1146

The Pueblos of Jemez, Santa Ana, and Zia have inhabited the Jemez River Basin since before Spanish, then Mexican, then U.S. sovereignty. The United States filed a water-rights adjudication in 1983 on behalf of the Pueblos.
The district court found the Pueblos had aboriginal water rights but concluded those rights were extinguished by Spanish sovereignty in the 1500s—despite finding Spain had not taken any affirmative act to reduce Pueblo water use.
The United States and the Pueblos appealed under 28 U.S.C. § 1292(b), asking whether a sovereign may extinguish aboriginal water rights by mere imposition of authority without any affirmative act.
Evidence and expert testimony described Spanish regalía (royal prerogative) over public waters, the repartimiento process for allocating water when users conflicted, and that no repartimiento or other affirmative Spanish intervention occurred in the Jemez Valley.
The Tenth Circuit reviewed de novo the legal effect of Spanish law and held that extinguishment of aboriginal rights requires a clear, affirmative sovereign act adverse to the tribe’s occupancy; mere assertion of sovereignty or passive administration is insufficient.
The court reversed the district court’s extinguishment holding and remanded for further proceedings consistent with the rule that extinguishment requires affirmative, adverse sovereign action.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a sovereign can extinguish aboriginal water rights by imposing authority without an affirmative act	U.S./Pueblos: No — extinguishment requires a clear, affirmative act directed at the tribal right	Coalition/State/District Ct.: Yes — Spain’s assertion of regalía and general water administration effected extinguishment even without a specific act	Reversed: extinguishment requires an affirmative sovereign action adverse to the tribal right; mere imposition of sovereignty is insufficient
Whether Spain’s general water-administration system (regalía/repartimiento) was adverse to the Pueblos’ water rights	U.S./Pueblos: Spain respected Indian possessions; no repartimiento occurred and Spanish practice left Pueblo use intact	Coalition/State: Spain’s public-water regime and administration showed it subsumed prior Pueblo rights	Held: Spain’s general, passive administration—without directed, adverse action or evidence of impact on Pueblo use—did not show clear intent to extinguish

United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339 (1941) (extinguishment of aboriginal title requires plain and unambiguous sovereign action)
Oneida Indian Nation v. Oneida County, 414 U.S. 661 (1974) (aboriginal occupancy rights are terminable only by sovereign act)
United States v. Winans, 198 U.S. 371 (1905) (recognizes reserved tribal rights doctrine)
Johnson & Graham's Lessee v. M'Intosh, 21 U.S. 543 (1823) (foundational recognition of Indian occupancy and limits of discovery doctrine)
United States v. Alcea Band of Tillamooks, 329 U.S. 40 (1946) (confirms extinguishment occurs through affirmative sovereign action)
United States v. Dion, 476 U.S. 734 (1986) (requires a clear and plain intent to abrogate tribal rights)