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 and that we get really different legal treatments simply because of the cultural line or ditch we have chosen. I mean I’m as much Pueblo as my brother [Miguel], but because I didn’t actively enroll as a tribal member, I get no federal backup, no federal representation, unlike my brother. It’s ridiculous. And it means the state is effectively my boss; the state thinks it can just tell us what to do since we’re under the New Mexico water code. My brother, he just laughs at this and says, “We don’t recognize the state [of New Mexico] or its laws on water. We do what we want, and the feds will protect us. He’s never that mean to me about it, but it’s always there. He’s just dismissive of the state engineer because they have the feds on their side.
Miguel, as a recognized member of the Indian Pueblo, falls under Pueblo (and thus federal) purview for water issues. Thus, Miguel leans on the definitions of Pueblo water rights.
Since we’ve always been here as Pueblo, and first peoples, we fall under the federal jurisdiction and protections. It’s not always great. We have had a lot of problems with the BIA and the [Department of] Interior officials, some bad attorneys along the way who didn’t know what they were doing, but mostly it’s okay. We don’t have to worry about the state engineer [of New Mexico] because he has almost no authority over us. We usually just go about our business. It is difficult for my relatives on the other [Hispano] side since they fall under the state, and they have to listen to what the state engineer says and thinks, he tells them what to do … anyway, it is hard to work together because of this. We get along, but it could be better. We just don’t want to be told what to do, or be forced into sharing water that we think is ours, that has long been ours, and that the acequia folks think is all theirs. You can’t force a relationship or a compromise, right? You have to both agree to the terms, and we have our own cultural way of dealing and talking about water.
Juan and Miguel are thus well aware of the state-federal water divide cleaved through identity. Many Pueblos, and certainly individual Pueblo members, do not recognize the state’s laws in managing, much less designating, water uses on Indian lands. Like the blood relationship in this example, water is shared across the Indo-Hispano communities. In interviews, I heard both Pueblo and Hispano water advocates using the phrase “since time immemorial” to highlight their respective rights and water use prior to the state’s existence. These claims are a way to create a space of exceptionalism in either federal or state law, and both are a kind of state refusal.
Juan and Miguel exist in the same space but are bound to different water governance jurisdictions. They share the same DNA, but where they reside, physically and in political space, matters more than the actual percentage of Pueblo or Spanish lineage. The parsing of identity and resource rights alignment is germane to eventual administrative matters under state law (non-Indian) and federal law (Indian). Bloodlines shape the jurisdictional water rights of many in New Mexico, translating to how much water sovereignty each group can exercise. Acequias remain limited sovereigns, in charge of their local ditch water. The Pueblo and other indigenous groups of New Mexico have a federally protected limited sovereignty that is more regional in scope and broader than that of the acequias. Then there is the state of New Mexico with its presumption of state-public ownership of the waters across the state. Finally, there is the federal government with its trust responsibility for protecting both Indian water rights and endangered species.
The multiple concentric rings of water sovereignty complicate any singular notion about nation-state sovereignty and control over water. Sovereignty over water and the often-associated concept of water security may be passé when it comes to debating international water governance solutions. But here, rescaled to reflect local water sovereigns like acequias and the nation-within-a-nation indigenous sovereigns like the Pueblo and the Navajo, the jurisdictional aspects of water sovereignty explain why the state of New Mexico has struggled to redefine water and individual water rights.41 These are all constrained forms of sovereignty, yet all of these water cultures exert some degree of water control and water sovereignty.
Sovereignty underscores the importance of identity in relation to water governance and local management issues. The 1908 Winters decision, for example, determined that Indian reservations have implicit water rights attached for future development. That court decision never offered a metric or quantification for reservations; there were no explicit guidelines. As a result, the implicit 1908 Winters Doctrine water rights were long ignored and left as a matter for later courts to specify and quantify. The elaborate construction of Indian
