Unsettled Waters. Eric P. Perramond
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never finish, man. It [adjudication] will chew you up and spit you out just like it does the rest of us.” He did get serious, losing his smile. “And they haven’t even bothered to talk to my pueblo yet—it’s going to take forever, I think.”26 He was still shaking his head after I thanked him for his questions and remarks.
Ernesto knew that Aamodt had dragged on for more pertinent reasons than just the lawyers and their squabbles. However, his joke provides insight. In addition to bringing old cultural conflicts back to the surface, adjudication also sparked antagonism between professionals. Many attorneys have made a living from this single case. No wonder, then, that even claimants had problems switching attorneys; legal counsels knew a good thing when they saw it. The correspondence between the PVWUA, Shoenfeld, and Sheridan make it clear how tense and interested parties were to retain a role in the suit. The valley residents were not the only ones pitted against each other. Even the professionals were at odds, and the court files and transcripts have elements of a soap opera, just with more technical language. Beyond the definitions of Indian and non-Indian water rights, Aamodt (dammit) left its mark on valley residents and relationships.
The reverberations from the Aamodt adjudication rippled into villages, upstream and downstream, for decades. Even among the valley’s acequias, the question of whether to push for individual water rights by specific dates heightened tensions along the ditches, between ditches, and between communities. It unsettled long-standing notions of water sharing throughout the Pojoaque Basin. Proving historical “priority” created skirmishes between communities that had in the past shared waters either informally or through convenios (accord or agreement) that established the splitting of water in dry basins.
To illustrate that these struggles were not just along or across perceived ethnic lines (Indian, non-Indian), I turn to an example of a prior convenio and a small stream system in the upper watershed of the Aamodt adjudication area, the Rio en Medio (refer back to map 4). Two tiny villages have shared the perennial Rio en Medio stream for over a century. Aamodt resurfaced the fights over prior appropriation dates at first, but the villages eventually reaffirmed the spirit and the letter of their old accord.
CHUPADERO: WATER SHARING, DATING MADNESS, AND DITCH ACCORDS
The two villages of Rio en Medio and Chupadero, located just north of Santa Fe, have long shared water from a splitter box, a simple concrete device that parts waters on the Rio en Medio stream and diverts a bit more than half to the village of the same name. The lesser amount of flow goes into a connecting canal leading to the upper acequias of the Chupadero basin. Chupadero gets its name from the ephemeral nature of the stream, which is sucked (chupar) into its bed and disappears to the naked eye along sections. Looking at this small village, nestled in a verdant strip and surrounded by the bone-dry foothills, gives additional perspective on how adjudication and prior appropriation raise concerns in areas without cleaved identity questions.
Chupadero was first settled in the 1860s. Like most places in northern New Mexico, it was sparsely settled until the late 1800s, when New Mexico was still a US territory. It’s still sparsely settled, with only 362 residents counted by the 2010 census (Rio en Medio is even smaller, with 131 residents). The Rio Chupadero runs through the heart of its namesake village, usually as nothing more than a wetland trickle during irrigation season but providing a green ribbon of life in this dry, stark, and striking landscape. The valleys here are deeply dissected and can seem like worlds unto themselves. However, they were never completely disconnected or isolated.
By the late 1800s, it was clear that there was not enough water in the Rio Chupadero to provide for year-round cropping. In 1897, residents created a written convenio with their neighbors just to the north in the village of Rio en Medio to share the water that came from the river by the same name. That agreement details a water-sharing plan whereby “more than half” of the water at the splitter box is to go on its normal path to the village of Rio en Medio, with the right half of the box’s flow going on to the ephemerally dry Rio Chupadero channel. A connection canal was built after 1897, between the splitter box and the actual dry channel of the Rio Chupadero, to ensure flows reach the upper ditches and the village of Chupadero.
To this day, one can visit the 1897 splitter box on the Rio en Medio. The right-hand side diversion carries a portion of the flow down a transition canal, cut along the contour and gradient, and then releases it into the natural channel of the Rio Chupadero (see figure 3). This flow feeds into the acequias and several ditches, one of which goes down to the village of Chupadero. It is an intricate, elaborate, gravity-fed system like most of these hand-dug ditches. It is also an example of a transbasin diversion that predates most of the massive twentieth-century federal projects.
FIGURE 3. A mayordomo stands on the banks of the connecting canal that brings water from the Rio en Medio splitter box, agreed to in the 1897 convenio, to the upper ditches of the Chupadero Valley. Photo by the author, 2009.
The arrangement is an example of what was “normal” yet informal between acequia villages throughout New Mexico. The fact that the two villages were compelled to put their agreement in writing and file it with the Santa Fe County Clerk is evidence that New Mexicans were already aware of the new legal culture slowly remapping their state. Most agreements on water sharing were largely done with a handshake, or standing oral agreement, prior to the late nineteenth century. Forcing prior appropriation onto the acequia villages and stream systems created antagonism, even in tiny villages with a long history of sharing. With adjudication, water was no longer a shared, communal enterprise. It was state property yet with property-use rights determined by historical dates, and the state allocated water according to what people were using on their land.
This legal change started to rework the connections between people and water, relationships between water users, and even worldviews on the purpose of water. The convenio was a legal performance for the territorial courts prior to New Mexico becoming a state (1912), but it officially inscribed the two communities’ long-held beliefs about shared water. In legal language and in writing, the convenio formalized the informal to make it legible for the state. Here, too, infrastructure and customary law were tied together. Yet the convenio did not stop all challenges, the most notable of which were revived by the Aamodt adjudication case. Water rights are ranked by first beneficial use date. Under prior appropriation, water users strive to prove the earliest use date possible, hoping to secure senior rights.
Aamodt spurred a scramble for earliest use dates among residents of tiny Chupadero and Rio en Medio. In some cases they contested the dates found by the contract historian and dates in their own oral histories. The OSE contract historian at the time, John Q. Baxter, determined a first date of stream diversion and beneficial use of 1878 for Rio en Medio, which suited those in Rio en Medio just fine. Some upper-ditch users in the Chupadero Valley claimed and were awarded an earlier date of 1863 for the natural flow of the Chupadero River only. The bulk of the flow, however, for both valleys, is dependent on the original 1878 diversion from the Rio en Medio. Only the upper ditch of the Chupadero, then, can claim some natural Chupadero River flow as a prior date. But not much water flows in this stream system without the augmented Rio en Medio waters channeled from the canal (in figure 3).
Hence, a single date of 1878 generally governs the entire Chupadero stream system, save for that one upper ditch. After several decades of squabbling over what the exact priority dates would be in each valley and parcel, they were bound back to the agreement they had in place since 1897. They had to abide by the convenio (see figure 4) and the historical record accepted by the state.
FIGURE 4. The historic 1897 convenio document that allowed sharing of water from the Rio en Medio stream to a ditch that connects to the upper reaches of the Rio Chupadero, New Mexico. Photo by the author. From the