¶1(concurring in part and dissenting in part).
¶2I join in that part of the majority opinion which affirms the trial court’s ruling that the Pajarita and Rinconada Projects have not been shown to be economically feasible, and which denies the State’s cross-appeal, claiming that the trial court erred in failing to impose a consumptive-use cap and in using a practicably irrigable acreage (PIA) analysis to determine the feasibility of the Tribe’s proposed irrigation projects. I also agree that the decision of the trial court should be affirmed in part and reversed in part, but reach such conclusion on different grounds. I disagree, however, with that portion of the majority decision which reverses the trial court and interprets the 1852 Treaty to find that the priority date for the federally reserved water rights involved herein coincides with the date of the signing of the treaty. I would affirm the trial court’s finding determining that the priority date for the federally reserved water rights coincides with the dates of the several executive orders establishing and designating the location of the reservation. Additionally, I would reverse the trial court’s ruling which denied a portion of the Tribe’s claim of a priority date of “time immemorial” for its water rights.
¶3Following the presentation of extensive testimony and evidence, the trial court adopted findings of fact and conclusions of law determining, among other things, that: “On July 1, 1852, the United States, the Mescalero Apache Indian Tribe, and others entered into a treaty which was ratified by the United States Senate in 1853”; the treaty “was a peace and amity treaty ... [and] did not designate a reservation of land”; numerous acts of the federal government between 1852 and 1873 corroborate that the 1852 Treaty did not actually establish a reservation; and “[t]he Mescalero Apache Reservation was created by five executive orders ... in 1873,” 1874, 1875, 1882, and 1883.
¶4The trial court’s findings and conclusions determining that the 1852 Treaty did not establish or create a reservation, and that the agreement was, instead, a treaty of peace and amity, are derived from a literal reading of the 1852 Treaty, historical evidence, and persuasive court authority. As noted in the majority opinion, the critical inquiry for determining the priority date for the federally reserved water right is the date the Mescalero Apache Indian Reservation was created. See State ex rel. Reynolds v. Lewis, 88 N.M. 636, 639, 545 P.2d 1014, 1017 (1976) (under Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), federally reserved water rights are effective as of the time the Indian reservations were created). My disagreement with the majority opinion focuses on its interpretation of the treaty and applicable law. Historically, Indian reservations have been created by different means, including: (1) by treaty under the authority of executive power granted under the United States Constitution, subject to ratification by the United States Senate; (2) by Executive Order; and (3) by an Act of Congress. See Sharon M. Morrison, Comments on Indian Water Rights, 41 Mont.L.Rev. 39, 45 (1980); see generally, Felix S. Cohen, Handbook of Federal Indian Law, ch. 15, at 294-303 (1971).
¶5The priority date for federally reserved water rights stems from the date of the establishment of the reservation. See Cappaert v. United States, 426 U.S. 128, 138, 96 S.Ct. 2062, 2069, 48 L.Ed.2d 523 (1976); Arizona v. California, 373 U.S. 546, 600, 83 S.Ct. 1468, 1498, 10 L.Ed.2d 542 (1963) [hereinafter Arizona ]; Winters, 207 U.S. at 577, 28 S.Ct. at 211-12. As observed by the United States Supreme Court in Arizona: “We ... agree that the United States [reserved] the water rights for the Indians effective as of the time the Indian Reservations were created.” Id.,373 U.S. at 600, 83 S.Ct. at 1498 (emphasis added). In Arizona the Court also noted that several of the Indian reservations involved therein were established by Executive Order. Id. at 596, 83 S.Ct. at 1495-97.
¶6The majority opinion interprets the Treaty of 1852 together with the Executive Orders of 1873, 1874, 1875, 1882, and 1883, so that, for purposes of determining the priority date for the appropriation of waters claimed by the Tribe, the Mescalero Apache Indian Reservation is deemed to have been effectively established in 1852. In my view the trial court correctly interpreted the treaty and evaluated the evidence bearing upon the historical facts surrounding the creation of the reservation, and determined that the reservation for the Mescalero Apache Tribe and the water rights appurtenant thereto should be prioritized as of the date the Executive Orders designating and establishing the reservation were actually entered.
¶7Additionally, as observed in the trial court’s Finding No. 5, the actions of the federal government following the execution of the 1852 Treaty confirm the fact that the treaty did not in fact create a reservation; instead, the 1852 Treaty was a peace and amity treaty which pledged to “designate, settle, and adjust” the territorial boundaries of the Indians who were signatory thereto. Art. 9 of 1852 Treaty.
¶8The trial court’s findings summarized, in part, testimony presented by both the state and federal governments concerning efforts by the United States to create a reservation at different locations in the territory of New Mexico for the Mescalero Apache Indians following the execution of the 1852 Treaty. Finding No. 5 recited:
Numerous actions of federal government officials between 1852 and 1873 established that the 1852 treaty was not intended to be a treaty of reservation. There were suggestions that the Mescalero Apaches be placed on reservations in areas outside of the White and Sacramento Mountains. The reservations included the Fort Thorne Reservation, and reservations on the Rio Felix, Gila River, and Rio Peñasco. The Bosque Redondo was established as a permanent reservation for the Mescaleros by Executive Order dated January 15, 1864, and subsequently abandoned and restored to the public domain.
¶9On at least two previous occasions the Treaty of 1852 has been examined and found to constitute a treaty of peace and amity, and that the reservation was, in fact, subsequently established by a series of Executive Orders. In Mescalero Apache Tribe v. United States, 17 Ind.Cl. Comm’n 100, 162 (1966), the Indian Claims Commission concluded that, as a matter of law, the 1873 Executive Order established the first portion of the Mescalero Apache Indian Reservation. In that decision the date the reservation was established was central to determining the amount of compensation to be awarded.
¶10The findings of fact of the Commission stated that the Treaty of 1852 was a peace and amity treaty, not a treaty involving the transfer of land, and noted that:
The diplomatic methods during this early period included the attempt to negotiate and the negotiation of a number of treaties with the Mescalero and other Apache tribes. Treaties of cession and treaties of peace were negotiated. However, only one of these [the Treaty of 1852], a treaty of peace, was ratified by the Congress.
¶11Id. at 113. Later, the Commission again referred to the Treaty of 1852 finding that it was “a treaty of ‘perpetual peace and amity’ [which] was ratified and proclaimed on March 25, 1853 (10 Stat. 979, 981). This was the only treaty entered into between the United States and the Mescaleros that was ratified.” Id. at 114.
¶12Similarly, in Mescalero Apache Tribe v. O’Cheskey, 625 F.2d 967, 971 (10th Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1981), that court also determined that the 1852 Treaty “was a treaty of ‘peace and friendship.’ As this was all it purported to be, it established no rights generally for either party nor any rights in land.” (Emphasis added.) See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 325-26, 103 S.Ct. 2378, 2382, 76 L.Ed.2d 611 (1983) (observing that the Mescalero Reservation was created by a series of Executive Orders promulgated in the 1870s and 1880s); Mescalero Apache Tribe v. New Mexico, 630 F.2d 724, 729 n. 9 (10th Cir.1980), aff'd, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983) (the 1852 Treaty did not fix the boundaries of the reservation; “the actual boundaries of the reservation were set by a series of executive orders from 1873 until 1883”).
¶13Historical evidence presented before the trial court also indicated that the United States, during the 1860s, considered creating a reservation for the Mescalero Apache Indians along the Gila River, and at yet another time, Bosque Redondo was designated as a location for establishment of a reservation for the Mescaleros. United States Rebuttal Exhibit 31 includes, among other things, a memorandum of Nathan Margold, Solicitor of the Department of Interior, dated June 28, 1940, noting:
The [1852] treaty did not bind the Apache Nation to cede any lands to the United States nor did it bind the United States to recognize any specific area as territory of said nation or its constituent tribes. Article 9, however, did obligate the United States to establish and adjust their boundaries.
Probably one of the principal reasons why no designated area was recognized as the territory of the Apaches in the treaty of July 1, 1852, was the fact that these Indians were banded together in nomadic tribes with no set abode.
¶14Rebuttal Exhibit 31 introduced by the United States also contained a report by John Collier, Commissioner of Indian Affairs, dated August 27, 1941, stating, inter alia, that
[t]he [1852] treaty primarily was one of peace and friendship. No lands were ceded thereby to the United States, nor were any granted ... to the Apache Nation. Neither did the treaty define the boundaries of any lands which might at that time have been claimed by the Apache Tribe____
¶15Since there was no specific designation of lands held by the Tribe, waters in a specific geographic location cannot implicitly be said to have been withdrawn as a federal reserved water right, when it is undisputed that following ratification of the 1852 Treaty, the federal government subsequently contemplated establishing a reservation for the Tribe in different geographic areas.
¶16The majority relies upon liberal principles of construction which are utilized to interpret ambiguous provisions of treaties or other written agreements. See, e.g., Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 678, 87 L.Ed. 877 (1943). There is nothing ambiguous, however, regarding the language of the Treaty of 1852; in my opinion, it simply cannot be construed as creating a reservation at the situs here involved. See Confederated Bands of Ute Indians v. United States, 330 U.S. 169, 179, 67 S.Ct. 650, 659, 91 L.Ed. 823 (1947) (courts cannot change the meaning of treaties under the guise of interpretation); Choctaw Nation of Indians, 318 U.S. at 432, 63 S.Ct. at 678 (treaties are not to be construed so as to rewrite them; they are not to be extended beyond their clear terms). Moreover, comparison of the Treaty of 1852 with other similar treaties adopted during the relevant time periods also supports a conclusion that the treaty was intended to be a treaty of peace and amity. As pointed out by the State, peace treaties with the Navajo, 9 Stat. 974 (1849), the Comanche and Witchetaw Indians and their associated Bands or Tribes, 7 Stat. 474 (1835), and the Kiowa and other Indians, 7 Stat. 533 (1837), are similar to the 1852 Treaty entered into with the Mescalero Apache Tribe. These treaties were followed by treaties which specifically designated lands for these Tribes.
¶17Treaties between the United States and Indian tribes which did grant specific land to the Indians did so with language reasonably supporting such interpretation; language of this character does not appear in the Treaty of 1852. See, e.g. Treaty with the Dwamish, Suquamish, and other allied and subordinate Tribes of Indians in Washington Territory, January 22, 1855, art. II, 12 Stat. 927, 928; Treaty with the Blackfoot and other Tribes of Indians, October 17, 1855, art. IV, para. 1, 11 Stat. 657, 658; Treaty with the Pottowautomie Indians and their various Bands, June 5 and 17, 1846, art. IV, 9 Stat. 853, 854. In each of the treaties cited above, in which land was granted, the location of the land sought to be included in such reservation was described with some specificity. The Treaty of 1852 does not contain such language.
¶18The majority opinion concludes that for purposes of assigning a priority date for the federally reserved water rights here involved, the priority date should be the date of the 1852 Treaty when the United States promised to create the reservation. I respectfully disagree. This rule of construction ignores the language of the treaty and the historical facts which preceded the issuance of the several Executive Orders. The language of the treaty and the subsequently entered Executive Orders indicate that the designation of the present Mescalero Apache Indian Reservation grew out of the issuance of the five Executive Orders. See Mescalero Apache Tribe, 462 U.S. at 337, 103 S.Ct. at 2388. Thus, I conclude that the trial court correctly determined that the Treaty of 1852 did not designate or establish a specific reservation; therefore, because the location of the reservation was not established, the date of execution of the treaty could not properly have been intended by the United States to fix a priority date for the federally reserved water rights in question.
¶19Because the majority opinion concludes that the priority date for the Mescalero Apache Indian Tribe’s water rights dates from the time the 1852 Treaty was ratified, the opinion does not address the contention of the United States and the Tribe, asserting that the trial court erred in refusing to recognize the claim of the Tribe to an aboriginal or Indian reserved water right to the waters embraced within the reservation boundaries. The trial court’s Finding of Fact No. 2 stated that “[tjhere is no evidence of [the] Mescalero Apache [Tribe’s] aboriginal use of water.” The United States and the Tribe challenge this finding and argue that the trial court erred in denying this claim. I agree in part with this challenge.
¶20Aboriginal or Indian reserved water rights are distinct from federal reserved water rights. United States v. Adair, 723 F.2d 1394, 1412-15 (9th Cir.1983), cert. denied sub nom., Oregon v. United States, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984). As a general rule, when a tribe and the government negotiate a treaty, the tribe retains all rights not expressly ceded to the government or extinguished by the United States. See id. at 1413; see also United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905); State ex rel. Greely v. Confederated Salish & Kootenai Tribes, 219 Mont. 76, 712 P.2d 754, 763 (1985). In Adair the court construed a provision of the 1864 Treaty between the United States and the Klamath Indian Tribe which recognized aboriginal hunting and fishing rights of the Tribe. The court held that the Tribe’s water rights accompanying its right to hunt and fish were expressly confirmed by the treaty and carried a priority date for appropriation of time immemorial. As observed by the court in Adair, however, a claim of an aboriginal water right must be substantiated by proof of actual, historical uses. Id.,723 F.2d at 1414 (where Tribe shows its aboriginal use of water to support a hunting and fishing lifestyle, and then enters into a treaty with the government reserving this aboriginal use, the water right thus established retains a priority date of immemorial use); see also State ex rel. Reynolds v. Aamodt, 618 F.Supp. 993, 1009-10 (D.N.M.1985).
¶21Since claims of aboriginal title, including those of aboriginal water rights, require proof that a tribe actually, exclusively, and continuously used and occupied the land or utilized the resource from time immemorial, claims of this nature are necessarily grounded upon evidentiary proof corroborating such historical use. See Adair, 723 F.2d at 1414; United States v. Santa Fe Pac. R.R., 314 U.S. 339, 345, 62 S.Ct. 248, 251, 86 L.Ed. 260 (1941); Yankton Sioux Tribe of Indians v. South Dakota, 796 F.2d 241, 243-44 (8th Cir.1986), cert. denied, 483 U.S. 1005, 107 S.Ct. 3228, 97 L.Ed.2d 735 (1987). With the exception of the claim of the United States on behalf of the Tribe of an aboriginal water right with a priority date of time immemorial for domestic use, the record is devoid of evidence of historic water use for agricultural or other purposes by the Tribe prior to the issuance of the several Executive Orders.
¶22Examination of the final judgment entered by the trial court herein, and the trial court’s determination that “[tjhere is no aboriginal priority date under which federal reserved water rights for the Mescaleros can attach,” in my opinion, is in part contradicted by evidence presented at trial which is inconsistent with other findings and conclusions adopted by the trial court determining that the Tribe holds aboriginal title in its present reservation lands. Nor can I agree with the arguments of the State and Water Defense Association that the Tribe’s claims for recognition of an aboriginal water right were waived.
¶23Implicit in any determination that the Tribe holds aboriginal title to the lands in question and have occupied the lands included in the reservation since time immemorial is the conclusion that the Tribe possesses an aboriginal right to the waters that are appurtenant to such lands for reasonable domestic usage, absent a showing the water rights have been severed. Nothing in the record evidences a relinquishment of the Tribe’s aboriginal water right for domestic purposes. Although I agree with the State and Water Defense Association that aboriginal water rights must be established by evidence of historical use, and that, under the facts herein, the trial court correctly rejected the argument that the Tribe was entitled to an aboriginal priority date for water for agricultural purposes quantified by a PIA standard, I believe the trial court erred in refusing to recognize that the Tribe had established an aboriginal water right with a priority date of time immemorial to waters appurtenant to the lands included in the area of the reservation for reasonable domestic use. See Adair, 723 F.2d at 1413 (confirming aboriginal title of tribe to water rights for domestic purposes and “to support its hunting, fishing, and gathering lifestyle”); Aamodt, 618 F.Supp. at 1009-10 (recognizing aboriginal right to use of waters by Pueblos for “domestic purposes”).
¶24There is evidence in the record of an actual aboriginal water use in the instant case for domestic purposes stemming from the fact that the trial court here specifically found that the Tribe occupied and continues to hold aboriginal title to the lands included in the reservation. The United States and the Tribe presented expert witnesses who testified that the area included in the present reservation was historically occupied and possessed by the Mescaleros from time immemorial. In a prior case the Indian Claims Commission also found historical evidence corroborating the Tribe’s aboriginal title to the same general area. See, e.g., Mesealero Apache Tribe, 17 Ind. Cl. Comm’n at 108 (Finding No. 8). As further indicated by Dr. Frances Levine, a historian, who testified herein, the Apache bands inhabiting the White and Sacramento Mountains in the 1850s were variously estimated at between 400 to 1000 individuals. In light of the trial court’s finding that the Tribe holds aboriginal title to the lands in question, I do not believe the State has clearly established that the Tribe’s claim of aboriginal water rights for reasonable domestic purposes has been severed or extinguished. See Adair, 728 F.2d at 1413 (only the United States can extinguish aboriginal title).
¶25I would recognize the Tribe’s right to an aboriginal water right, with a priority date of time immemorial, to a reasonable amount of water for domestic purposes, deny the claim for other aboriginal water rights based on a failure of proof, and affirm the trial court’s judgment determining that the priority date for the federally reserved water rights involved herein does not stem from an aboriginal water right and that the priority dates for the Tribe’s water rights, as adjudicated herein, coincide with the Executive Orders which created the Mesealero Apache Indian Reservation.
¶26APPENDIX
¶27TREATY WITH THE APACHES.
¶28July 1, 1852.
¶29Articles of a Treaty made and entered into at Santa Fe, New Mexico, on the first day of July in the year of our Lord one thousand eight hundred and fifty-two, by and between Col. E.V. Sumner, U.S.A., commanding the 9 Department and in charge of the Executive Office of New Mexico, and John Greiner, Indian Agent in and for the Territory of New Mexico, and acting Superintendent of Indian Affairs of said Territory, representing the United States, and Cuentas, Azules, Blancito, Negrito, Capitan Simon, Capitán Vuelta, and Mangus Colorado, chiefs, acting on the part of the Apache Nation of Indians, situate and living within the limits of the United States.
¶30Article 1. Said nation or tribe of Indians through their authorized Chiefs aforesaid do hereby acknowledge and declare that they are lawfully and exclusively under the laws, jurisdiction, and government of the United States of America, and to its power and authority they do hereby submit.
¶31Article 2. From and after the signing of this Treaty hostilities between the contracting parties shall forever cease, and perpetual peace and amity shall forever exist between said Indians and the government and people of the United States; the said nation, or tribe of Indians, hereby binding themselves most solemnly never to associate with or give countenance or aid to any tribe or band of Indians, or other persons or powers, who may be at any time at war or enmity with the government or people of said United States.
¶32Article 3. Said nation, or tribe of Indians, do hereby bind themselves for all future time to treat honestly and humanely all citizens of the United States, with whom they may have intercourse, as well as all persons and powers, at peace with the said United States, who may be lawfully among them, or with whom they may have any lawful intercourse.
¶33Article 4. All said nation, or tribe of Indians, hereby bind themselves to refer all cases of aggression against themselves or their property and territory, to the government of the United States for adjustment, and to conform in all things to the laws, rules, and regulations of said government in regard to the Indian tribes.
¶34Article 5. Said nation, or tribe of Indians, do hereby bind themselves for all future time to desist and refrain from making any “incursions within the Territory of Mexico” of a hostile or predatory character; and that they will for the future refrain from taking and conveying into captivity any of the people or citizens of Mexico, or the animals or property of the people or government of Mexico; and that they will, as soon as possible after the signing of this treaty, surrender to their agent all captives now in their possession.
¶35Article 6. Should any citizen of the United States, or other person or persons subject to the laws of the United States, murder, rob, or otherwise maltreat any Apache Indian or Indians, he or they shall be arrested and tried, and upon conviction, shall be subject to all the penalties provided by law for the protection of the persons and property of the people of the said States.
¶36Article 7. The people of the United States of America shall have free and safe passage through the territory of the aforesaid Indians, under such rules and regulations as may be adopted by authority of the said States.
¶37Article 8. In order to preserve tranquillity and to afford protection to all the people and interests of the contracting parties, the government of the United States of America will establish such military posts and agencies, and authorize such trading houses at such times and places as the said government may designate.
¶38Article 9. Relying confidently upon the justice and the liberality of the aforesaid government, and anxious to remove every possible cause that might disturb their peace and quiet, it is agreed by the aforesaid Apache’s that the government of the United States shall at its earliest convenience designate, settle, and adjust their territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of said Indians.
¶39Article 10. For and in consideration of the faithful performance of all the stipulations herein contained, by the said Apache’s Indians, the government of the United States will grant to said Indians such donations, presents, and implements, and adopt such other liberal and humane measures as said government may deem meet and proper.
¶40Article 11. This Treaty shall be binding upon the contracting parties from and after the signing of the same, subject only to such modifications and amendments as may be adopted by the government of the United States; and, finally, this treaty is to receive a liberal construction, at all times and in all places, to the end that the said Apache Indians shall not be held responsible for the conduct of others, and that the government of the United States shall so legislate and act as to secure the permanent prosperity and happiness of said Indians.
¶41In faith whereof we the undersigned have signed this Treaty, and affixed thereunto our seals, at the City of Santa Fe, this the first day of July in the year of our Lord one thousand eight hundred and fifty-two.
¶42Witnesses:
F. A. CUNNINGHAM, Paymaster, U.S.A. J. C. McFERRAN,
lsi Lt.3d Inf. Act. Ast. Adi Gen.
CALEB SHERMAN.
FRED. SAYNTON.
CHAS. McDOUGALL, Surgeon, U.S.A. S. M. BAIRD,
Witness to the signing of Mangus Colorado. JOHN POPE,
Bvt. Capt. T. E.
E. V. SUMNER,
[seal.] Bvt. Col. U.S.A. com’g 9th Dept. In charge of Executive Office of New Mexico.
JOHN GREINER,
[seal.] Act. Supt. Indian Affairs, New Mexico.
CAPITAN VUELTA, his x mark
CUENTAS AZULES [seal.] his x mark
BLANCITO -, [seal.] his x mark
NEGRITO [seal.] his x mark
CAPITAN SIMON, [seal.] his x mark
[seal.] MANGUS COLORADO, his x mark
[seal.]