Unsettled Waters. Eric P. Perramond
Читать онлайн книгу.
position adverse to the one we so carefully paved over the last five years, is a breach of the trust and mutual confidence we share. I believe the trust will prevail and see us successfully through this lawsuit. I will be honored to continue to represent you if that is your wish. Very truly yours, Peter B. Shoenfeld, signed/printed.19
The single letter provides a fascinating display of the high legal and financial stakes embedded in the Aamodt case, indeed in all adjudications. In the first instance, he rhetorically discounts the stand-in representation of individuals and their water rights by a user group (PVWUA). He then cites the historical wounds of lost land grants (such as the Tierra Amarilla land grant in northwestern New Mexico) as a way to reach people for whom this history lives on and remains painful, connecting past land adjudication with then-current water adjudications. Additionally, he challenged the legal merits of the Sheridan plan for representing all valley residents as “former Mexicans” with a single priority date of 1848 to share the water together as a community. Finally, Shoenfeld ends with a plea about his special role in representing the community when there was no legal fund. While this level of detailed correspondence may seem unusual, it is in no way exceptional to this case or others.
The case bumped forward as the attorneys jockeyed for position. In 1986 legal briefs on priority dates for non-Indian water rights holders were requested. The following year, the courts gave hope to the non-Indian irrigators, ruling that the four pueblos involved had historically irrigated 841.5 acres of tribal lands, excluding reservation and replacement lands scheduled to be decided by the courts in October. This final accounting was far lower than the 12,000 acres that the pueblos had claimed initially. For the pueblos, the ruling was seen as another injustice, in addition to questions being raised by their variable histories of land occupancy in the basin. Pojoaque and Tesuque were rather late in organizing as new pueblos, in contrast to Nambé and San Ildefonso, which both had continuous records of occupancy. It wasn’t until 1993 that the court ruled that the Nambé and San Ildefonso Pueblos had Aboriginal water rights on reservation lands based on actual, historic use. Even for these two groups, however, a distinction was made based on actual, historical use, and uses that came later in the twentieth century.
Through this archival inspection of legal correspondence, several aspects of the adjudication suit are visible. There was a growing impatience and revulsion about the process among all involved and the feeling that the only people profiting from adjudication were the attorneys. In one of the notes, for example, PVWUA board members suggested that their own lawyers were treating the appropriated court-controlled money as “a legal slush fund” for their own profit.20 For valley residents, the congressionally funded account was vital, but the finances were drained too quickly.
As one of the former PVWUA board members recalling the 1980s and 1990s in a conversation with me in 2011 said, “It was pretty difficult, but we felt compelled to try and represent the best interests of people for the long haul, and that account was getting tapped pretty quickly by our attorney through his billable hours. We just estimated that we could save money and shorten the process … [laughs, drinks coffee] … guess that shows you how much we knew what … almost thirty years ago? And they [the Aamodt parties] are just now settling and funding this mess. What a charade.”21
In the back-and-forth correspondence between the PVWUA and legal counsel, it helps to remember that a palpable change was happening in non-Indian legal strategy. The new legal counsel, Sheridan, favored a valley-wide priority date instead of the strict individual prior appropriation plan his predecessor had advocated. This reflected a shift to cooperation between non-Indian parties instead of trying to line up in priority order during legal procedures. It also reflects what Hispano irrigators had been doing for centuries—largely, ignoring individualistic prior appropriation and simply sharing water in their respective valleys. This strategy of legal aggregation for single dates was risky, given that the state water code called for individual water dates, but was a logical tactic for questioning whether prior appropriation could work in this cultural water context.
Sharing the water, then, returned as a near-term legal strategy and goal for water users in the Pojoaque Valley, reflected in the push for a single priority date on numerous ditches. In most respects, this is not surprising—the PVWUA’s leadership board had offered to meet with representatives of the four pueblos back in 1982, without attorneys, to see if some discussion could occur. Sharing was long the norm in this region.22 These advances by the acequias toward the Pueblo to negotiate or just have a dialogue were rebuffed at the time, although whether that was because of the respective tribal councils or their attorneys is unclear. Sharing may have been seen as a distraction tool since new attention was being paid to the hundreds of domestic wells that exist in the Pojoaque Valley.
ADJUDICATION EXPOSES SOVEREIGN WATER TENSIONS
The consequences of the suit were painfully clear on the ground. A reporter in the early 1980s recorded the fears of couples who had intermarried between Hispano and Pueblo families: “Please don’t use my name,” a man begged the reporter. “We just rent this land and it belongs to the [Pojoaque] pueblo, and I’m afraid they’ll evict us. But I think that all people should have water rights. It’s a God-given thing. People here have shared the water for hundreds of years.” His wife nodded in the background. “I just don’t understand it,” she said. “The Indians have always gotten along well with the Spanish here.” The numerous additional accounts of inter- and intrafamily difficulties caused by the Aamodt case in the 1980s make for fascinating, if difficult, reading. Many at the time hoped they could settle “by law instead of by guns or fists,” as one young man married to a Pueblo woman told the same reporter. The reporter summed up the situation as such: “One thing that nearly everyone in the Pojoaque Valley agrees on is that the divisiveness caused by the water-rights suit has been a shame.”23
Much of that early social disruption generated from the lawsuit remains as Murphy Inerque, a Pojoaque Pueblo resident and a “veteran of the case” (as he put it), shared with me one abnormally warm November day in 2010:
What it generated was a lot—I mean a lot—of resentment when the Pueblos tried to move on the entire basin to claim it was all their water. Sure, we live on areas of the valley where maybe they farmed in the past but to try and cheat all their current neighbors … Well, people took it badly. I lost a dozen or so friends because of that dispute, or the lawsuit … and people just don’t forget. Even if the thing [Aamodt] has been settled now, talk to anybody in the valley who is not an Indian and you’ll get some hard stares. That deal continues to cut in the valley, not in a good way.24
The friction sparked in the late 1960s smoldered for decades, even as the case went through active and passive periods of court litigation, most of it unseen in briefs, claims, and delayed court hearings. A long-time resident named Orlando, when I brought up the tensions in the valley, told me:
I mean, we know that the Indians were here first. But we’ve also been here now for some three hundred years, so it was disappointing that we couldn’t just use the same water-sharing principles that we had always used together. A lot of us who mobilized into the Pojoaque Valley Water Users Association were just concerned that they would get all the water, all of it. So we understood the priority rules in the end…. just that now [2011] it’s going to be hard for people to reduce their groundwater use from the well, especially those folks who came after the mid-1980s. That’s where the pinch is, so it’s still first here, you win; you move here late, tough, you’ll have less water on hand.25
The tension in the valley mounted with the inclusion of groundwater wells. This was no longer just a visible water conflict, based on surface streams. Changes to relationships in the valley were driven by the visible and the invisible waters being claimed. Given these challenges, it is understandable how and why Aamodt was the longest-standing adjudication suit. Its infamous reputation in New Mexico was well founded. The case was already forty years old when I started work on this project in 2006, older than I was at the time. How can a case last this long, I asked, still a few years into my research. “Ask the lawyers,” was the answer from Ernesto, a Pueblo irrigator from Ohkay Owingeh (ex-San Juan Pueblo). He lived outside the basin and had nothing at stake in Aamodt. He had approached me after a presentation at the University of New Mexico, where I had shared