Unsettled Waters. Eric P. Perramond
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first use in time to match up to these last names and land parcels for an orderly hydraulic state. There is a logic to the state’s approach in that prior appropriation water law is predicated on the “use it or lose it” basis of beneficial use. When state agents appear to map and quantify water use on a particular plot of land, it is in everyone’s best interest to look or act as if they are fully using their claimed (or historically used) water rights. There’s little incentive under prior appropriation to actually conserve water or to use it efficiently.30 Water rights holders often think they have to fully use their water rights to keep them perfected. That is not the case. But because beneficial use is the “limit” to individual water rights, as explained previously, irrigators and managers alike have no incentive to go below the maximum limit of their beneficial use or their assigned water duties, depending on crops.
Adjudication was supposed to be a template process using watersheds as a basis for doling out water rights.31 The new legal system and state code were nevertheless received as having to fully use one’s water rights under prior appropriation (“use it or lose it”). Local irrigators and water users quickly understood what was at stake and carried over that understanding into the “performance” of water use when OSE personnel were completing adjudication maps for the home office. In basins where all possible cultural-legal understandings were all present, the performance of using water was even more critical. This came through in all my interviews. When adjudication was underway in the mapping phase, it was good to be seen irrigating, pumping, or diverting.32 The 1907 water code did share much in common with Spanish Colonial practices for making good on property rights: the act of property possession was about visibly performing those rights and relationships between property owners and the authorizing agent.33
One water user from Taos, for example, claimed that “my neighbors started using a lot more water when the field mappers [from OSE] were here doing the maps and stuff.”34 Even in adjudicated areas that were less problematic, such as the Mimbres in southwestern New Mexico, an irrigator recalled that “that whole process [of adjudication] changed how we deal with each other; it added a lot of suspicion back then [1970s] that hasn’t really disappeared. It’s only made things worse in a dry area.”35 He went on to say, “Sure, the whole thing [adjudication] was wrapped in the late 1980s [1989], but we had no idea what it would trigger … in pockets of the valley, there were no issues, but in others … it just triggered bad blood and some civil suits, some of which just won’t go away.”
From the state of New Mexico’s perspective, the cultural histories and geographies of water use do not legally matter until adjudications are underway. However, differing federal and state views of identity and bloodline can splinter water users, sometimes in the same family. These complexities of identity were simplified, often reduced to a binary of “Indian” and “non-Indian” identity and citizenship in adjudication issues. This unfortunate splitting of water identities is the result of federal policies and definitions of who is considered an Indian within the United States. It is a kind of biopolitics that does not mince on identity: either you are Indian or you are not, as recognized by US federal entities. Native sovereign nations now also control their own tribal registry rolls for membership. Assertions or assigned definitions of who claims to be indigenous, Hispano, or of mixed Indo-Hispano identity are fraught with challenges, and these binary cultural borderlands are patrolled regularly.36
Binaries of identity and membership can work for creating transparent governance or rulemaking but can complicate cooperation in water matters in New Mexico. Federal versus state legal treatment matters greatly, dictating what kind of water right a person is entitled to according to his or her identity. Next, I present an example of this complex and often perverse cleaving, along with a later tale of two brothers divided by this water-identity issue.
IDENTITY, FEDERALISM, AND WATER SOVEREIGNS
Identity and history matter in New Mexico’s daily water governance. In 1598, new Spanish settlers arrived near Ohkay Owingeh Pueblo (which the Spanish quickly renamed San Juan Pueblo), home to one of the many Pueblo Indian groups along the Rio Grande. The Spanish eventually chose the western bank of the Rio Grande near what is today Chamita and the junction of the Chama River and the Rio Grande, their first attempt at a new capital, to be called San Juan de los Caballeros. The next year, however, the new capital was moved east to San Gabriel. An early ditch was dug in 1598, but the colony of San Gabriel also did not last and was officially abandoned by 1601, although some Spanish and Tlaxcalan stragglers may have stayed behind. By 1610, most officials had moved to the new capital, Santa Fe.37
Those early ditches near San Gabriel were likely used by the Pueblo and any remaining Spaniards until the 1680 Pueblo Revolt. This is one of the reasons why it is difficult to claim and get awarded any pre-1680 water right in New Mexico: most Spanish documents burned in the revolt. Spanish colonists and indigenous peoples (from Mexico) returned to this area in the late 1690s, and their descendants have been there since. Consequently, the Pueblo and surrounding towns share ditches, bloodlines, and a complicated history of kinship and identity.38 Most pre-1680 Spanish records were incinerated and lost to historical memory during the 1680 Pueblo Revolt. Because of this first wave of colonialism, the resulting cultural politics of water use were already complicated prior to 1846. Water politics based on identity were commonly defined by the blood quantum (percentage of Native descent) understandings of tribal membership, as constructed by the United States federal government and now often enforced by Native sovereigns themselves.39
To add to the complexity, the Pueblo were incorporated into the United States as Mexican citizens under the Treaty of Guadalupe Hidalgo, not as indigenous peoples. Since they were settled at the time of US takeover in the region, they were not considered “wild Indians” who posed a threat. They also seemed to live like their Hispano neighbors, with established Catholic churches on their lands. The Pueblo Indians were not given federally recognized “Indian” status until the 1930s, and they were deprived of voting rights until that status was formalized (1948). This treatment of Pueblos-as-Mexicans-then-Indians continues to haunt New Mexican water rights adjudications and settlements. Indeed, New Mexico is one of the few states where the concept of the colonial present still means something, as the politics of identity “recognition” continue to operate and confound sovereign politics.40 The problematic reversal of these identity assignments under federal Indian policy continue to have real policy implications (as I discuss in chapter 2). These matters have only become more complex over time under the second wave of colonialism that swept through the region after 1846.
The question of federal Indian identity and recognition is alive for residents of Chamita and the Ohkay Owingeh Pueblo. Because of shared canals running between the Pueblo and Chamita, cooperation has been necessary for hundreds of years. Irrigators from Chamita and the nearby Pueblo have sometimes struggled but found ways to come to agreement. To illustrate the complexity of identity politics and water sovereignty in New Mexico, I turn to a story of two brothers.
Juan Pacheco is a member of one of the Chamita acequias and has been active in its oversight and governance for decades. He considers himself Nuevomexicano, of joint Indian and Hispano descent, and actively participates in local affairs. His brother, Miguel, identifies as a member of Ohkay Owingeh Pueblo and has also been prominent in local and regional Pueblo affairs. These two brothers, from the same family, with different allegiances, are partitioned into different categorizations for water adjudications. Juan, defined as a non-Indian (as litigation calls all nonindigenous peoples), falls under state jurisdiction of the OSE and the rather rigid terms of prior appropriation. Miguel, as a member of Ohkay Owingeh Pueblo, has a different state-recognized identity as Indian and thus falls under different laws and jurisdictions. Federal identity categorizations (Indian and non-Indian), with added Native sovereignty definitions of who is formally enrolled as tribal members, define the brothers and separate their legal treatment and status into federal and state courts. Identity determines what kind of judge and court, state or federal, has purview in their water cases. Juan employs his Hispano identity in his appeal to the local and shared community norms of water management. As he put it:
It’s pretty absurd that we fight over this stuff