Unsettled Waters. Eric P. Perramond
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line or ditch we have chosen. I mean I’m as much Pueblo as my brother [Miguel], but because I didn’t actively enroll as a tribal member, I get no federal backup, no federal representation, unlike my brother. It’s ridiculous. And it means the state is effectively my boss; the state thinks it can just tell us what to do since we’re under the New Mexico water code. My brother, he just laughs at this and says, “We don’t recognize the state [of New Mexico] or its laws on water. We do what we want, and the feds will protect us. He’s never that mean to me about it, but it’s always there. He’s just dismissive of the state engineer because they have the feds on their side.
Miguel, as a recognized member of the Indian Pueblo, falls under Pueblo (and thus federal) purview for water issues. Thus, Miguel leans on the definitions of Pueblo water rights.
Since we’ve always been here as Pueblo, and first peoples, we fall under the federal jurisdiction and protections. It’s not always great. We have had a lot of problems with the BIA and the [Department of] Interior officials, some bad attorneys along the way who didn’t know what they were doing, but mostly it’s okay. We don’t have to worry about the state engineer [of New Mexico] because he has almost no authority over us. We usually just go about our business. It is difficult for my relatives on the other [Hispano] side since they fall under the state, and they have to listen to what the state engineer says and thinks, he tells them what to do … anyway, it is hard to work together because of this. We get along, but it could be better. We just don’t want to be told what to do, or be forced into sharing water that we think is ours, that has long been ours, and that the acequia folks think is all theirs. You can’t force a relationship or a compromise, right? You have to both agree to the terms, and we have our own cultural way of dealing and talking about water.
Juan and Miguel are thus well aware of the state-federal water divide cleaved through identity. Many Pueblos, and certainly individual Pueblo members, do not recognize the state’s laws in managing, much less designating, water uses on Indian lands. Like the blood relationship in this example, water is shared across the Indo-Hispano communities. In interviews, I heard both Pueblo and Hispano water advocates using the phrase “since time immemorial” to highlight their respective rights and water use prior to the state’s existence. These claims are a way to create a space of exceptionalism in either federal or state law, and both are a kind of state refusal.
Juan and Miguel exist in the same space but are bound to different water governance jurisdictions. They share the same DNA, but where they reside, physically and in political space, matters more than the actual percentage of Pueblo or Spanish lineage. The parsing of identity and resource rights alignment is germane to eventual administrative matters under state law (non-Indian) and federal law (Indian). Bloodlines shape the jurisdictional water rights of many in New Mexico, translating to how much water sovereignty each group can exercise. Acequias remain limited sovereigns, in charge of their local ditch water. The Pueblo and other indigenous groups of New Mexico have a federally protected limited sovereignty that is more regional in scope and broader than that of the acequias. Then there is the state of New Mexico with its presumption of state-public ownership of the waters across the state. Finally, there is the federal government with its trust responsibility for protecting both Indian water rights and endangered species.
The multiple concentric rings of water sovereignty complicate any singular notion about nation-state sovereignty and control over water. Sovereignty over water and the often-associated concept of water security may be passé when it comes to debating international water governance solutions. But here, rescaled to reflect local water sovereigns like acequias and the nation-within-a-nation indigenous sovereigns like the Pueblo and the Navajo, the jurisdictional aspects of water sovereignty explain why the state of New Mexico has struggled to redefine water and individual water rights.41 These are all constrained forms of sovereignty, yet all of these water cultures exert some degree of water control and water sovereignty.
Sovereignty underscores the importance of identity in relation to water governance and local management issues. The 1908 Winters decision, for example, determined that Indian reservations have implicit water rights attached for future development. That court decision never offered a metric or quantification for reservations; there were no explicit guidelines. As a result, the implicit 1908 Winters Doctrine water rights were long ignored and left as a matter for later courts to specify and quantify. The elaborate construction of Indian identity by the federal and state governments—and how the category of “Indianness” has changed over time—has fed directly into problematic cultural water relationships. These place-bound identity issues cascade into fights over priority water rights by seniority and how water settlements treat this binary of Indian and non-Indian quite differently.
The Pueblo, along with other indigenous sovereign nations like the Navajo and Apache, barely acknowledge the state’s power since they have nation-state federal protections in place for defending native waters.42 OSE oversight begins and ends at their sovereign nation boundaries. The Native sovereign nations are skeptical about water rights being awarded by a state that exists largely at their territorial expense. Although the 1952 McCarran Act allows states to enjoin Native sovereigns and the federal government in state water adjudications, federal and state courts continue to stake out claims to parse out Indian water rights claims. Overlapping water sovereignty, culturally complex views, and claims to water all make adjudication more difficult.
In the end, who you are defined to be determines who protects or authenticates your water rights. In undeniable ways, the administrative view of individual water users creates differential citizenship for water resource governance. Adjudication has consequences that go beyond affirming liberal property rights regimes in western states. Adjudication is not simply about the transfer of ownership of property, or merely about water rights handed over to individuals. It is as much about managing water users in particular identity categories as orderly, disciplined state citizens, as Miguel’s lead quote to this chapter suggests.43 In the basins where Indian water rights are present, adjudication cleaves identity and creates a collection of both Indian and non-Indian water users (as treated by federal and state agencies and courts). Seeing like “a” state, then, is never singular in a federalist republic like the United States. Scott’s approach was apt for critiquing the “vision” of a nation-state and its outcomes. But in adjudication, all forms of water sovereignty (local, tribal, state, and nation-state) are defined, contested, and renegotiated during the process.
WATER AND IDENTITY ARE NEVER SIMPLIFIED THROUGH LAW
Adjudication was designed to clarify and simplify the state’s control of water and how residents were using water so that these private-use rights could be quantified, certified, and mapped. It was about privatizing the use right to water in the state. It was not about commoditizing water per se.44 Nevertheless, the process revealed what various water sovereigns understood about the value of water, about themselves, and between themselves. Simplification through the state’s water-accounting process made water inordinately more complicated, contentious, and capitalized.45 It also highlighted how identity governance was tied to water.
Like most other western water codes, New Mexico’s new 1907 code was designed to award “free water,” as long as people made good economic use of it. These western codes served as the water equivalent to the federal 1862 Homestead Act, which put nearly free land into the hands of new pioneer farmers. And just like the Homestead Act, these water codes were never meant to account for prior occupancy, the people already living in the space to be colonized. Indian nations and Hispano acequias in New Mexico preexisted the US colonial-settler state and its new water code policies. The double colonial experience of New Mexico has hardened cultural water governance boundaries. The identity water distinctions do not accurately distinguish the complexity of people. As Juan Estevan Arellano recently wrote describing his family’s origins, “We are a mixture of blood from the Iberian Peninsula, Basques and Sephardics and more than likely Moors who mixed here with Mesoamericans, then Pueblos, Apaches, and Navajos, in the case of my kids. All these bloods informed us about how to look at the land and water.”46 States, nation-states, and even Native sovereigns struggle to accept mixed cultural heritage just as states struggle with shared, mixed waters.
In the next two chapters, I turn to the adjudication cases set