Unsettled Waters. Eric P. Perramond
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this to me over coffee one morning in November 2010. He touched his index finger to his thumb, waggling them in a “zero” symbol. “We’d have had nothing, absolutely nothing. I wouldn’t be here today if Winters rights had been fully awarded to the Pueblo in the valley … seriously, I’d have zero and would have to move.”13
Meanwhile, the situation for Pojoaque Pueblo was perhaps more complicated. It had been depopulated for a period in the early twentieth century and only reincorporated as a pueblo in the 1930s. Because of this, during Aamodt proceedings, there was some question as to whether the Pojoaque group had abandoned their land and water claims. “That kind of story gets dangerous, you know,” as Carlos, a member of Pojoaque Pueblo, told me in 2011. “I mean, that questioning of whether we are really ‘true Indians’ is just unfair, annoying … The [Pojoaque] Pueblo struggled because of disease and all these unfair [US Indian] policies that stripped us of who we were, what we owned; sent our kids off to boarding schools to become white American kids … ridiculous. And that kind of poisonous doubt continues now—they keep criticizing the casino and saying, ‘See, they don’t farm, they don’t need that water.’ As if we have to stay farmers or something to be real Indians. Drives me nuts.”14
Around the same time, the early 1980s, the OSE realized the need for adjudicating surface and groundwater simultaneously. One of the most contentious decisions by the court on groundwater was in 1982, when the ruling judge declared a moratorium on new appropriations from domestic wells, restricting new wells to indoor water use only. Wells dug after 1982 could not make full use of their originally awarded rights, especially for lawns or gardens outdoors. While this restrictive decision was later modified during settlement, allowing for some light outdoor use in the valley, what did endure was limiting further groundwater appropriations in the Pojoaque Basin. Since the state engineer is not able to restrict domestic well permits when applied for, the court had to do the unpopular work of capping groundwater well development. This decision was rife with controversy.
In the words of Pojoaque Valley Water Users Association (PVWUA) board member Bill Anderson, “In some ways, that was when people got charged up, this whole thing about the wells…. I mean, there’s no city pipe out there, so people had their own domestic wells, so of course it wasn’t about ag[riculture] or even gardens anymore. People in the valley just thought, ‘Shit, now the Pueblos are trying to completely kick everyone out of the valley with a well.’ So yeah, it got tense.”15
As tensions between groups continued, the state engineer was steadily determining priority dates for non-Indian water rights holders. By 1982 some twelve hundred non-Indian water users had been sent offers of judgment regarding their water rights, setting up the possibility of new conflicts, as neighbors could contest each other’s rights during the inter se process, and individuals could question the state’s dates and data.
The period between 1978 and 1987, between Aamodt 1 and 2, marked an active period of litigation, as well as one in which groups formed in an attempt to balance legal interests and representation in the court. In addition, the legal fees for non-Indian defendants were rising, with no way to affordably pay for them. Much of the written record captures the frustrations of non-Indian residents who complained that they could not afford attorneys and that the Indians were getting free government legal counsel from the federal agencies.16 Non-Pueblos in the valley felt excluded from discussions regarding the quantification of Indian water rights, thus an irrigation district in the Pojoaque Valley reinvented itself as the PVWUA. One of the group’s first concerns was the sheer scale of the Pueblo Indian water assertions. Their second concern and priority was to garner funding for legal representation of their interests.
Non-Indian irrigators and property owners lobbied Governor Tony Anaya and even sent letters to President Ronald Reagan to try to garner legal and financial support. They worked on their congressional representatives and senators as well. Congressional representatives from New Mexico coordinated a legal aid fund for non-Indian Aamodt adjudication legal support in the amount of $450,000. While this sum was viewed as small, compared to the federal resources expended for the four Indian pueblos, this appropriation, pushed through by Senator Pete Domenici, was quite a coup for the Pojoaque Valley residents. However, the fund turned out to be less far reaching than they had originally hoped. Much of this was due to internal and external conflicts within and between parties.
One of the defendants in the suit, Doug Martin, remembered that period well and how the early good news on funding turned sour when they realized how expensive representation was for the court procedures and legal proceedings. “It was truly a mess, Eric. I mean we thought we had it made, with the funds necessary to defend ourselves at the beginning. But the process was so long, so drawn out, we could see the funds disappearing before our eyes … I served as treasurer, and I could not believe the amount of money our lawyers were billing for each and every thing. We just underestimated how much it would cost, the time it would take. It created a lot of fights in the valley, too, because some of us wanted to stick with particular attorneys.”17
Doug and his neighbors grappled with the complexity of legal representation and how the federal funds were expended by their lawyers. Furthermore, while the pueblos and their attorneys could make bulk claims for tribal entities, non-Indians had to argue for themselves individually. “We could feel the divide-and-conquer tactics strategy, so we tried to organize differently into a water-user group,” Doug said, referring to a new legal strategy born in that period.
QUESTIONS OF LEGAL REPRESENTATION AND INTERESTS
While the fund was useful for court proceedings between 1982 and 1985, serious problems erupted between the non-Indian claimants and their legal counsel over that brief period. The expenses claimed by the legal team led by attorneys Peter Shoenfeld and Larry White were questioned by the PVWUA leadership.18 The leaders of this nonprofit water-users group were concerned that the legal fund was being spent out too quickly, given the numerous tasks remaining in the adjudication suit. In a series of tense memos and letters and later legal suits and affidavits from late 1984 through 1985, the board of the PVWUA decided to switch legal counsel representation. But the process was bumpy and hostility was barely veiled in the correspondence.
For example, in 1986, the PVWUA sent a letter to all defendants in the case suggesting they sign over legal representation choice to the board members, as they pushed for new legal counsel. Attorney Peter Shoenfeld responded within two weeks to the group’s notion to drop him as legal counsel for some of the five hundred defendants in the case. In his letter to his still-then clients, he opined that
contrary to the material enclosed with the July 25, 1985 letter, you need not do anything by way of response to the PVWUAI, unless you wish to join it. I recommend against joining it. If I do not hear directly from you, you will continue to be my client, and I will continue to represent you in the Aamodt case. My fees will be billed to the federal fund. The PVWUAI is asking you to give it the right to make decisions for you about your water rights. If you join it you will be giving away some of your legal rights. In some documents it asks you to “assign your legal rights” to the association. I suggest to you anyone who does so is inviting the loss of their water rights. The request is reminiscent of the notorious 1880s land grabs in which blank powers of attorney were signed by landowners who soon found out that the Tierra Amarilla land grant, for example, no longer belonged to them.
In this letter, Shoenfeld was opposing the “everyone with 1848 water rights” position (based on the date of the Treaty of Guadalupe Hidalgo) that attorney Marc Sheridan seemed to champion in 1985. Sheridan’s position was to get a single priority date awarded to all the ditches, arguing that non-Indians were protected in 1848 as Mexican citizens. This maneuver was meant to avoid later prior appropriation law by adopting a single date, 1848, for everyone who was non-Indian. In contrast, Shoenfeld advocated for individual water rights with differentiated dates. Arguing for a group date was pointless, he contended, as people could be giving up senior water rights (older, high-value dates): “If you detect a note of bitterness in the foregoing, you may be correct,” Shoenfeld wrote. He continued:
You will recall that during our darkest hours, when it appeared that no help was in the offing, Neil, Larry, and I carried much of the financial burden of this case ourselves, purely on