Unsettled Waters. Eric P. Perramond
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The various parties in the Aamodt case—Nambé, Pojoaque, Tesuque, and San Ildefonso Pueblos as well as nonpueblo water users—disputed and contested each other’s rights to the water—and not only the waters from the Nambé-Pojoaque-Tesuque (NPT) stream system. The most complicated factor was how Indian water rights would be historically defined and quantified. A long-ignored Supreme Court decision, the Winters case (1908) ruled that implicit water rights existed to support the reserved land base of Indian reservations. The courts never quantified how much water that might be. For federally recognized tribes, the implicit threat of claiming Winters water rights has been a useful tool in negotiating settlements during the last thirty years. The Aamodt case was seen as an opportunity for the Pueblo to address a historical injustice by finally quantifying their water rights. As a long-time attorney for one of the pueblos said, “The settlement process is a bit of a final recourse; since justice was long delayed in getting the Pueblo their proper water rights acknowledged … it’s simply long, long overdue.”6
Archaeology and Spanish Colonial archival accounts demonstrate that the Pueblo Indians had long practiced floodwater farming.7 More permanent canals, like those used by Hispano settlers in New Mexico, are also now common on nearly all Pueblo lands across the state. The pueblos also have real and unmet needs to supply freshwater to residences, casinos, and other economic and recreation facilities. Previous failures to recognize and quantify Indian water rights not only delayed justice but also complicated the state’s attempts to document and allocate waters, as I will discuss. Later Hispano settlers, now treated in the courts as non-Indians, were stuck in a strange neocolonial position well before adjudication. Aamodt simply excavated the complex history of their water arrangements.
Hispano querencia, or sense of place, was gradually formed in communities over centuries. Early Hispanos settlers were accompanied by Tlaxcalan Native peoples from Central Mexico, and multiple generations of Genízaros (Christianized and converted Plains Indians peoples) were also recruited or enslaved into what became Nuevo México. Families and bloodlines mingled. As a long-time resident of the valley put it, “We’re always treated like second-class citizens here even though basically we are genetically the same as the Indians … we just don’t necessarily claim to be Indian, and they do, so it’s complicated, and Aamodt just put a bright flashlight on all this blood politics you know, it’s always been awkward when the water issues come up.”8 Hispanos claimed a kind of settler indigeneity, as anthropologist James Blair has coined the concept in a separate colonial context, justified by their historical long-term occupancy in the valley.9 Yet Hispanos remain settlers and non-Indians, not indigenous, in the American juridical context. Parsing through Indian and non-Indian waters would be the first major task for the courts in Aamodt.
As mentioned earlier, the 1952 McCarran Act allowed states to enjoin federal reserve waters (including tribal rights) to specific state adjudication practices. With this federal legislation, western states could include the determination of Native water allocations in state adjudication court proceedings and basin research. The Pueblo did not view the McCarran legislation as a positive step. Tensions have long existed between individual states and Native sovereign nations, and the Pueblo were reluctant to acknowledge any power by New Mexico state courts or the New Mexico state engineer on Indian water rights issues. The sovereign tribes and the OSE still retain a degree of legal distance on water issues. To this day, for example, the Pueblo are not required to report their water uses to the OSE.
The legal delays to enjoin the pueblos in state court did not hold up the first technical phase of adjudication by the state. By the late 1950s, surveyors were already at work in the Pojoaque, and most of the mapping work for non-Indian water diversions and water uses was done in less than five years. Between 1966 and the late 1970s, the parties and defendants involved organized their files and strategies. By the mid-1970s, key court cases allowed western states to begin including the Native nations like the Pueblo into state adjudication processes. The courtroom drama of Aamodt then began in earnest, and the pueblos’ first legal volley was a massive one. The pueblos contended that not only were their indigenous claims “prior and paramount” in time but that they had senior rights to nearly all the available water in the basin. One can imagine the panic of other non-Indian residents, some of whom had family roots dating back centuries.
The active Aamodt 1 legal phase of the adjudication lasted between 1969 and 1985. During this time, the four pueblos appeared in court to establish their claims to water rights. They were primarily interested in having separate representation for each Pueblo group—four standing attorneys instead of singular Department of Justice representation. Aamodt 1 also determined that federal water protections for the Pueblo would be established. After determining which court would preside and have standing in the matter, things got interesting.
In 1985, the Aamodt II court struck a blow against Pueblo claims to the majority of the valley’s surface water, marking the start of the Aamodt II phase of adjudication. Using the so-called Mechem Doctrine, Pueblo rights were to be limited to historical beneficial use under the laws of Spain and Mexico. Furthermore, the Aamodt II decision restricted the basis for establishing acreage attached to Indian water rights in the Pojoaque. The court defined Pueblo priority rights based on the acreage irrigated between 1846 and 1924.10 Aamodt was the first case to use the historical irrigation acreage (HIA) standard as a basis for quantifying Indian water rights.
To explain this seemingly arbitrary range of dates, first recall the historical complexity with the case of the two brothers in the previous chapter. The Pueblo were transferred into the United States as Mexican citizens under the Treaty of Guadalupe Hidalgo in 1848. Following Mechem’s (the Aamodt 1 judge) principles, the court ruled that their resource claims would be tied to their date of transfer to the United States as Mexican citizens. Thus, the Pueblo could claim only their provable historical water use from the start of the Mexican War in 1846 (when the United States acquired the Southwest) until 1924, when they were redefined as “Indians,” and the Pueblo Lands Board was created to supposedly compensate the Pueblo for lost water.11 In this way, both Pueblo water and identity were tied to Mexican citizenship transfer. Furthermore, their claims were limited to the original Pueblo land grants, as given by the Spanish and Mexican governments, and they could not claim more than the maximum historical planted area.
The Aamodt II court’s use of historical acreage for deciding Pueblo water rights was a decisive moment for limiting the Native claims to water in the Pojoaque. Peoples recognized by the United States as Indian (as opposed to Mexican) from their inception were due reservation water rights, falling under Winters Doctrine law. This was a striking paradox: in 1846 the Pueblo were considered “civilized enough,” more closely resembling Mexican citizens, until they were redefined as Indians in the 1920s. Because of a strange reassignment of treaty identity as Mexicans once again, the Pueblo did not qualify for a full Winters (Indian) water right treatment. The consequences for future Pueblo water rights cases, if the HIA standards are upheld in future adjudications or settlements, are staggering. The four pueblos, in the end, did not get all of the surface and groundwater in the Pojoaque.
That court decision was celebrated by non-Indians of the valley as a victory since it scaled down the pueblo’s previous claims to most of the water. When awarded, Winters Doctrine water rights are more generous than historically calculated figures, which only focus on the maximum extent of past agricultural acreage. Other tribes like the Jicarilla Apache clearly fell under the Winters decision, and the practicably irrigable acreage (PIA; the total land area that could be possibly irrigated) standard can hypothetically award more water to the tribes. The distinction may seem a fine one, but it can make a big difference when water quantities are owed to a tribal entity. Ironically, then, tribal sovereigns with little record of sedentary agriculture (such as the Jicarilla Apache) can hypothetically be awarded more water under PIA and Winters standards than the more sedentary Pueblo tribes who were clearly farming for centuries along the Rio Grande. As one past attorney for a Pueblo sovereign put it, rather morosely, “They [the four pueblos here] would have been better off if they had been more nomadic tribes.”12
Without the historical acreage standard imposed on the Pueblo as former Mexican citizens, the water outlook for non-Indians in the Pojoaque Valley would have been bleak.