has changed over time—has fed directly into problematic cultural water relationships. These place-bound identity issues cascade into fights over priority water rights by seniority and how water settlements treat this binary of Indian and non-Indian quite differently.
The Pueblo, along with other indigenous sovereign nations like the Navajo and Apache, barely acknowledge the state’s power since they have nation-state federal protections in place for defending native waters.42 OSE oversight begins and ends at their sovereign nation boundaries. The Native sovereign nations are skeptical about water rights being awarded by a state that exists largely at their territorial expense. Although the 1952 McCarran Act allows states to enjoin Native sovereigns and the federal government in state water adjudications, federal and state courts continue to stake out claims to parse out Indian water rights claims. Overlapping water sovereignty, culturally complex views, and claims to water all make adjudication more difficult.
In the end, who you are defined to be determines who protects or authenticates your water rights. In undeniable ways, the administrative view of individual water users creates differential citizenship for water resource governance. Adjudication has consequences that go beyond affirming liberal property rights regimes in western states. Adjudication is not simply about the transfer of ownership of property, or merely about water rights handed over to individuals. It is as much about managing water users in particular identity categories as orderly, disciplined state citizens, as Miguel’s lead quote to this chapter suggests.43 In the basins where Indian water rights are present, adjudication cleaves identity and creates a collection of both Indian and non-Indian water users (as treated by federal and state agencies and courts). Seeing like “a” state, then, is never singular in a federalist republic like the United States. Scott’s approach was apt for critiquing the “vision” of a nation-state and its outcomes. But in adjudication, all forms of water sovereignty (local, tribal, state, and nation-state) are defined, contested, and renegotiated during the process.
WATER AND IDENTITY ARE NEVER SIMPLIFIED THROUGH LAW
Adjudication was designed to clarify and simplify the state’s control of water and how residents were using water so that these private-use rights could be quantified, certified, and mapped. It was about privatizing the use right to water in the state. It was not about commoditizing water per se.44 Nevertheless, the process revealed what various water sovereigns understood about the value of water, about themselves, and between themselves. Simplification through the state’s water-accounting process made water inordinately more complicated, contentious, and capitalized.45 It also highlighted how identity governance was tied to water.
Like most other western water codes, New Mexico’s new 1907 code was designed to award “free water,” as long as people made good economic use of it. These western codes served as the water equivalent to the federal 1862 Homestead Act, which put nearly free land into the hands of new pioneer farmers. And just like the Homestead Act, these water codes were never meant to account for prior occupancy, the people already living in the space to be colonized. Indian nations and Hispano acequias in New Mexico preexisted the US colonial-settler state and its new water code policies. The double colonial experience of New Mexico has hardened cultural water governance boundaries. The identity water distinctions do not accurately distinguish the complexity of people. As Juan Estevan Arellano recently wrote describing his family’s origins, “We are a mixture of blood from the Iberian Peninsula, Basques and Sephardics and more than likely Moors who mixed here with Mesoamericans, then Pueblos, Apaches, and Navajos, in the case of my kids. All these bloods informed us about how to look at the land and water.”46 States, nation-states, and even Native sovereigns struggle to accept mixed cultural heritage just as states struggle with shared, mixed waters.
In the next two chapters, I turn to the adjudication cases set in the Pojoaque and Taos Valleys, respectively. These cases illustrate the challenges and complexities faced by the adjudicated and the adjudicators since the 1960s. Each case exemplifies complexity for different reasons in different contexts. Aamodt reflects how cultural diversity and legal pluralism in water governance resist simplified state readings of water sovereignty. The Abeyta case in the Taos Valley illustrates how multiple groups of water users came to a negotiated agreement, or water settlement, to preserve local norms of water sovereignty and customary law in use in the valley. Both cases highlight why adjudication failed to “core through” culturally plural views and uses of water. “Litigation illuminates,” as one former judge has written, yet it also unsettles relationships between water sovereigns.47
2
Aamodt, Dammit!
Big Trouble in a Small Basin
Angela and I walked along the dirt road that parallels the often-dry Pojoaque River, a mere trickle moving under a sweltering July sun. As Angela told me:
I moved here twenty years ago. I moved back, really, after college, because I care about this valley. But my family had no idea about what would happen with this whole [Aamodt] adjudication thing until it was too late … By the time they started paying attention again, the deal was done, and it seemed we had already been denied any voice or good deal in that set of discussions. We felt screwed. We still do. We got handed a hornet’s nest agreed to by others … I’m realistic that the Indians get their water as part of this whole deal. But they can’t have everything, can they? And this new deal now forces us to reduce well water use because they [the pueblos] don’t like the groundwater pumps…. it just seems unfair.1
Aamodt, often jokingly referred to as “Aamodt, dammit!” by both former state employees and those who live in the Pojoaque Basin, was the most infamous state adjudication for decades (see map 4). Angela’s family had three generations of active defendants in the lawsuit, and she was sharing her latest experiences about the terms of the negotiated agreement. She felt the “non-Indians” in the valley like her had been poorly represented in the meetings that hammered out new water arrangements in the Pojoaque. She remained frustrated, a familiar feeling among her neighbors, too. The settlement had left many in the valley unsettled.
MAP 4. Map of the Aamodt adjudication area, the Pojoaque River Valley, showing the four major pueblos. Adapted from the New Mexico Office of the State Engineer and Utton Center (2013).
The original Aamodt case was filed by the New Mexico state engineer in 1966, suing almost 2,500 defendants. Centered on the Pojoaque Basin and its small tributaries and the Nambé and the Tesuque Rivers, the Aamodt adjudication suit resurfaced past conflicts and cultural tensions.2 By the time Aamodt was settled out of court in 2010, the number of defendants had risen to 5,284 and encompassed four Indian pueblos in the Nambé-Pojoaque-Tesuque valleys, as well as a separate irrigation district and some 2,724 acres. Aamodt highlights both the multigenerational complexity of adjudication and the state’s ultimate failure to read water across sovereign identity lines. In the end, the four pueblos, federal agencies, and local acequias negotiated their way out of adjudication into a different kind of agreement that was acceptable to the state of New Mexico. Before adjudication was taken out of the courts, however, Aamodt was its own special little hell of a court case.
In this rural commuter valley to the north of Santa Fe, it can seem there are more people and more small land parcels than the limited water can sustain. The Nambé, Tesuque, and Pojoaque are all modest streams for most of the year and often run dry by early July. When they have water, they eventually join the Rio Grande. Water disputes were nothing new in this area. The archives are replete with court records of conflict from the early Spanish Colonial days and through the modern period as residents grappled over the low surface flows.3
