Unsettled Waters. Eric P. Perramond

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MAP 5. Map of the San Juan-Chama Project. This project was the key infrastructure event triggering the northern adjudications (Aamodt, Abeyta) since the basins would be receiving a share of the San Juan-Chama Project water. Adapted from New Mexico Office of the State Engineer and city of Santa Fe Water Division maps.

      Such was the reputation of Aamodt that at least two dozen times in other parts of New Mexico, people told me some variation on the following: “At least we’re not in the Aamodt case!” Aamodt was infamous and remains so. The most complicating factor wasn’t the basin size (it was small) or the limited water. It was legal pluralism. This was a legally complex valley in how residents used water, discussed water, or understood water. The legacy of legal pluralism is reflected in the mountains of legal archival files—so much paper, in fact, that legal scholars refer to the case as two discrete episodes: Aamodt 1 (1966–1984) and Aamodt 2 (1985–2000). Below, I briefly summarize aspects of these two distinct episodes that each lasted more than a generation.⁵ Cultural identity, Indian water rights, competing histories of use, inter- and intraethnic disputes over attorneys, acequias and customary water rights, thousands of defendants, ground and surface waters, federal agencies, consulting engineers, anthropologists, historians, and state engineer technicians and lawyers: they were all on display during Aamodt.

      THE STRUGGLE TO DEFINE INDIAN AND NON-INDIAN WATERS

      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 СКАЧАТЬ