Unsettled Waters. Eric P. Perramond

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СКАЧАТЬ irrigators and property owners lobbied Governor Tony Anaya and even sent letters to President Ronald Reagan to try to garner legal and financial support. They worked on their congressional representatives and senators as well. Congressional representatives from New Mexico coordinated a legal aid fund for non-Indian Aamodt adjudication legal support in the amount of $450,000. While this sum was viewed as small, compared to the federal resources expended for the four Indian pueblos, this appropriation, pushed through by Senator Pete Domenici, was quite a coup for the Pojoaque Valley residents. However, the fund turned out to be less far reaching than they had originally hoped. Much of this was due to internal and external conflicts within and between parties.

      One of the defendants in the suit, Doug Martin, remembered that period well and how the early good news on funding turned sour when they realized how expensive representation was for the court procedures and legal proceedings. “It was truly a mess, Eric. I mean we thought we had it made, with the funds necessary to defend ourselves at the beginning. But the process was so long, so drawn out, we could see the funds disappearing before our eyes … I served as treasurer, and I could not believe the amount of money our lawyers were billing for each and every thing. We just underestimated how much it would cost, the time it would take. It created a lot of fights in the valley, too, because some of us wanted to stick with particular attorneys.”¹⁷

      Doug and his neighbors grappled with the complexity of legal representation and how the federal funds were expended by their lawyers. Furthermore, while the pueblos and their attorneys could make bulk claims for tribal entities, non-Indians had to argue for themselves individually. “We could feel the divide-and-conquer tactics strategy, so we tried to organize differently into a water-user group,” Doug said, referring to a new legal strategy born in that period.

      QUESTIONS OF LEGAL REPRESENTATION AND INTERESTS

      While the fund was useful for court proceedings between 1982 and 1985, serious problems erupted between the non-Indian claimants and their legal counsel over that brief period. The expenses claimed by the legal team led by attorneys Peter Shoenfeld and Larry White were questioned by the PVWUA leadership.¹⁸ The leaders of this nonprofit water-users group were concerned that the legal fund was being spent out too quickly, given the numerous tasks remaining in the adjudication suit. In a series of tense memos and letters and later legal suits and affidavits from late 1984 through 1985, the board of the PVWUA decided to switch legal counsel representation. But the process was bumpy and hostility was barely veiled in the correspondence.

      For example, in 1986, the PVWUA sent a letter to all defendants in the case suggesting they sign over legal representation choice to the board members, as they pushed for new legal counsel. Attorney Peter Shoenfeld responded within two weeks to the group’s notion to drop him as legal counsel for some of the five hundred defendants in the case. In his letter to his still-then clients, he opined that

      contrary to the material enclosed with the July 25, 1985 letter, you need not do anything by way of response to the PVWUAI, unless you wish to join it. I recommend against joining it. If I do not hear directly from you, you will continue to be my client, and I will continue to represent you in the Aamodt case. My fees will be billed to the federal fund. The PVWUAI is asking you to give it the right to make decisions for you about your water rights. If you join it you will be giving away some of your legal rights. In some documents it asks you to “assign your legal rights” to the association. I suggest to you anyone who does so is inviting the loss of their water rights. The request is reminiscent of the notorious 1880s land grabs in which blank powers of attorney were signed by landowners who soon found out that the Tierra Amarilla land grant, for example, no longer belonged to them.

      In this letter, Shoenfeld was opposing the “everyone with 1848 water rights” position (based on the date of the Treaty of Guadalupe Hidalgo) that attorney Marc Sheridan seemed to champion in 1985. Sheridan’s position was to get a single priority date awarded to all the ditches, arguing that non-Indians were protected in 1848 as Mexican citizens. This maneuver was meant to avoid later prior appropriation law by adopting a single date, 1848, for everyone who was non-Indian. In contrast, Shoenfeld advocated for individual water rights with differentiated dates. Arguing for a group date was pointless, he contended, as people could be giving up senior water rights (older, high-value dates): “If you detect a note of bitterness in the foregoing, you may be correct,” Shoenfeld wrote. He continued:

      You will recall that during our darkest hours, when it appeared that no help was in the offing, Neil, Larry, and I carried much of the financial burden of this case ourselves, purely on trust. For a small group now to decide for you to switch law firms, and thereby to adopt a legal 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 СКАЧАТЬ