Unsettled Waters. Eric P. Perramond

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СКАЧАТЬ of Aamodt then began in earnest, and the pueblos’ first legal volley was a massive one. The pueblos contended that not only were their indigenous claims “prior and paramount” in time but that they had senior rights to nearly all the available water in the basin. One can imagine the panic of other non-Indian residents, some of whom had family roots dating back centuries.

      The active Aamodt 1 legal phase of the adjudication lasted between 1969 and 1985. During this time, the four pueblos appeared in court to establish their claims to water rights. They were primarily interested in having separate representation for each Pueblo group—four standing attorneys instead of singular Department of Justice representation. Aamodt 1 also determined that federal water protections for the Pueblo would be established. After determining which court would preside and have standing in the matter, things got interesting.

      In 1985, the Aamodt II court struck a blow against Pueblo claims to the majority of the valley’s surface water, marking the start of the Aamodt II phase of adjudication. Using the so-called Mechem Doctrine, Pueblo rights were to be limited to historical beneficial use under the laws of Spain and Mexico. Furthermore, the Aamodt II decision restricted the basis for establishing acreage attached to Indian water rights in the Pojoaque. The court defined Pueblo priority rights based on the acreage irrigated between 1846 and 1924.¹⁰ Aamodt was the first case to use the historical irrigation acreage (HIA) standard as a basis for quantifying Indian water rights.

      To explain this seemingly arbitrary range of dates, first recall the historical complexity with the case of the two brothers in the previous chapter. The Pueblo were transferred into the United States as Mexican citizens under the Treaty of Guadalupe Hidalgo in 1848. Following Mechem’s (the Aamodt 1 judge) principles, the court ruled that their resource claims would be tied to their date of transfer to the United States as Mexican citizens. Thus, the Pueblo could claim only their provable historical water use from the start of the Mexican War in 1846 (when the United States acquired the Southwest) until 1924, when they were redefined as “Indians,” and the Pueblo Lands Board was created to supposedly compensate the Pueblo for lost water.¹¹ In this way, both Pueblo water and identity were tied to Mexican citizenship transfer. Furthermore, their claims were limited to the original Pueblo land grants, as given by the Spanish and Mexican governments, and they could not claim more than the maximum historical planted area.

      The Aamodt II court’s use of historical acreage for deciding Pueblo water rights was a decisive moment for limiting the Native claims to water in the Pojoaque. Peoples recognized by the United States as Indian (as opposed to Mexican) from their inception were due reservation water rights, falling under Winters Doctrine law. This was a striking paradox: in 1846 the Pueblo were considered “civilized enough,” more closely resembling Mexican citizens, until they were redefined as Indians in the 1920s. Because of a strange reassignment of treaty identity as Mexicans once again, the Pueblo did not qualify for a full Winters (Indian) water right treatment. The consequences for future Pueblo water rights cases, if the HIA standards are upheld in future adjudications or settlements, are staggering. The four pueblos, in the end, did not get all of the surface and groundwater in the Pojoaque.

      That court decision was celebrated by non-Indians of the valley as a victory since it scaled down the pueblo’s previous claims to most of the water. When awarded, Winters Doctrine water rights are more generous than historically calculated figures, which only focus on the maximum extent of past agricultural acreage. Other tribes like the Jicarilla Apache clearly fell under the Winters decision, and the practicably irrigable acreage (PIA; the total land area that could be possibly irrigated) standard can hypothetically award more water to the tribes. The distinction may seem a fine one, but it can make a big difference when water quantities are owed to a tribal entity. Ironically, then, tribal sovereigns with little record of sedentary agriculture (such as the Jicarilla Apache) can hypothetically be awarded more water under PIA and Winters standards than the more sedentary Pueblo tribes who were clearly farming for centuries along the Rio Grande. As one past attorney for a Pueblo sovereign put it, rather morosely, “They [the four pueblos here] would have been better off if they had been more nomadic tribes.”¹²

      Without the historical acreage standard imposed on the Pueblo as former Mexican citizens, the water outlook for non-Indians in the Pojoaque Valley would have been bleak. Paul, a past farmer (now retired) in a small irrigation district in the valley, indicated 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 СКАЧАТЬ