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How Local Waters Become State Water

Miguel never understood the logic in water adjudication. In his late fifties and a retired employee of the Los Alamos National Laboratories, he was now a constant gardener. Most of his concerns were for the younger generation along his ditch and those few people under the age of thirty still living nearby. Sitting on a lawn chair in the shade of his backyard apple tree, he reflected on adjudication’s implications for him and his neighbors.

I mean, I get that we have to know how much water we have, right? That makes sense, so that Texas doesn’t get it all (he smiles a bit). But beyond that, what do we get out of this whole thing? They haven’t even done my valley, and now they’re warning us that the adjudication is coming to us soon, and we’re not ready. We haven’t organized yet like the Taos folks. My neighbors don’t seem to be worried or alarmed, but they will be once it’s here. Once the state engineers show up, it’s all over, and it’ll be too late for them to make any claims about having irrigated this or that patch, and then that water number gets fixed, and it’s done. There won’t be any future ability to expand water needs, I think. That’s what no one here tends to get—once the process is over, you don’t get another chance, and the amount of water we are using at the time of the process means that is the water we get, assuming no one sells their water or goes out of business … Then the engineer can figure out if there is any water we aren’t using and then have that available for sale if there’s some left over. It [adjudication] will change everything, even if people want to pretend that it won’t change anything.¹

ACEQUIAS AND THE HISTORICAL ROOTS OF LOCAL SOVEREIGNTY

Like most of his neighbors in Rio Lucio, a small hamlet outside Picuris Pueblo, Miguel’s home sits along an acequia, which provides the water for his small agricultural plot. It is a shared ditch with the nearby Indian Pueblo as it crosses through both indigenous fields and lands occupied by Hispanos like Miguel.² Acequias are gravity-fed irrigation ditches and institutions that were brought from the Iberian Peninsula when Spain was ruled by Moors. Acequia as a word has Arabic origins, meaning water carrier in its original form.³ These institutions moved with the Spanish to Mexico and eventually to New Mexico during the Spanish Colonial period (1598–1821).

Notably, New Mexico underwent two major episodes of settler colonialism and three political shifts, starting with the Spanish and shifting to brief Mexican rule (1821–1846) and finally ending with US governance beginning in 1848. This resulted in complex political, legal, and cultural overlays and understandings of natural resources, including water and its governance.⁴ Well into the twentieth century, acequias were the scale of daily water use, water governance, and life in New Mexico. Hundreds of these ditches exist across the state and are especially common in northern New Mexico, where there is greater water availability (see map 2).

MAP 2. Distribution of acequias in New Mexico. Adapted from Utton Center (2013).

Acequias as institutions function with the aid of a water boss (mayordomo), three commissioners, and the individual members of the ditch who use and maintain the ditch (known as parciantes). These institutions were vital to agrarian life and livelihoods in New Mexico’s semiarid valleys. Today, the dependency on agriculture has decreased, but hundreds of acequias still remain functional. They are microdemocracies unto themselves, functional governing units of the state. They survive because they work.

Acequia members like Miguel and Hector (whom we met in the introduction) understand that water is work. It is work to be shared, via direct labor and through annual financial dues, before the water can be allocated. Members contribute to the annual spring cleaning of the ditch, known as la saca or la limpia, and to its upkeep. On most ditches, mayordomos coordinate with commissioners and other ditch officials on the same stream to estimate when all members on the stream system can begin irrigating and how much water might be available that year based on snowpack. Estimates are adjusted weekly and sometimes daily as fresh rain and snow events occur. This is a highly adaptable and responsive system that works with the actual amount of flowing surface water available rather than stored waters behind a massive dam.

In good years, parciantes can access the water when they need it for crops, gardens, and livestock. When drought or scarcity strikes, the hard part of a mayordomo’s job begins: allocating water by shorter time rotations and watching individual water use to ensure all members’ needs are met. The mayordomo designates when and how much parciantes can irrigate and monitors the water flow. Access to the ditch can be blocked if parciantes fail to pay their dues or take water out of turn. This is an important point: The institution of the acequia—run by the commissioners and mayordomos—controls access to and use of the ditches that carry the water to which individuals have rights. In other words, acequia rights are not the same as individual water rights. Parciantes have to follow the rules of the acequia institution to keep their access to ditch water and maintain their individual water rights.

Acequias as physical features extend the riparian habitat, stitching together patches of emerald floodplain that weave through dry hills dotted with piñons, junipers, and cacti. Ditches can be on one or both sides of a diverted stream (see figure 1). They serve to both widen the floodplain and to store more water underneath the upper watersheds for longer time periods. Acequia landscapes are deeply altered. The ditches were built and are maintained for human use. They benefit agriculture at the expense of natural stream flows and have consequences for fish as well as mammals such as beavers and muskrats.

FIGURE 1. A hypothetical valley in New Mexico with acequias. Adapted from Utton Center (2013).

Long before New Mexico existed as a state, acequias were the essential institutions and objects of Hispano community formation. Pueblo Indians adopted the ditch and institution system. The overlapping cultural and historical layers surrounding these ditches and their impacts on landscapes and communities make New Mexico fascinating and often distinctive compared to other western states. The state of New Mexico’s 1907 water code, written when the region was still a US territory, imposed a new set of water laws and water-user expectations. The reverberations of new and conflicting water regimes still resonate in Miguel’s village.

Miguel expressed suspicion, even fear, about upcoming water adjudication. Many other interviewees, especially those of indigenous and Hispano descent, echoed his sentiments. Such feelings are associated with the historical use of this word adjudication. Whether accurate in the long term or not, many New Mexicans fear that adjudication signals the final dismantling of the Hispano moral and communal economy of water. This perception has logical roots considering the historical record of land and resource dispossession in New Mexico.

Miguel put it bluntly. “Look,” he told me, anxiety clear in his tone and face. “First the US came for us as people, then they took our land grants, then they took away access to our forests, they took our animal grazing permits, and now a lot of us think they want our water.” It was the A word, adjudication, that stripped Spanish and Mexican-era land grants away from Hispano villages more than a century ago.

Just after the Treaty of Guadalupe Hidalgo was signed in 1848 ceding Mexican territory to the United States, plans and bills to incorporate the Southwest into the union were well underway. During the US territorial period (1850–1911), vast tracts of the old Spanish and Mexican community land grants were dissected through legal procedure, as well as through graft and outright fraud. By the 1920s, over 90 percent of community land grants were dispossessed.⁵ The loss of land has not been forgotten in New Mexico and resurfaces in debates regarding water adjudication. Other losses to resource access compound the distrust, such as the limits on forest use and plant collection and the loss of grazing permits in forested regions. These losses and restrictions particularly affected female property owners.⁶

One of the early US congressional bills to receive consideration in 1849, just after Nuevo México became a territory of the United States, proposed that a commission be established to adjudicate all lands and gold claims in both New Mexico and California. Even Senator Benton from Missouri, a proponent of manifest destiny, had deep reservations about forcing New Mexicans to beg and plead in a commission setting for their rights. As he argued to the US Senate:

Two hundred and fifty years have elapsed since that country was granted to its conqueror, Don Juan de Oñate: almost ten generations have lived and died there. Yet they are all to be called upon now to show their land titles, and to prove them also, back to the time of the conquest. All titles are to be ripped up, and rooted up, back to the original grant, two hundred and fifty years ago. What would Virginia say if she had been conquered by a foreign Power, and should be served in the same manner?⁷

Benton was no champion of Mexicans (or New Mexicans), yet even he saw the lurking danger of this federal move to humble new citizens before a kind of quasi-administrative and legal court proceeding.⁸ Few Spanish and Mexican land grants were ever confirmed or honored. However, that does not mean their traces have disappeared. In rural communities, families with long roots vividly remember the fraud and shady legal procedures by which their lands were taken. Given this history of dispossession of communal land and resource access, suspicion about water adjudication is understandable. It is not just the state asserting its territoriality over water that is of concern. More central is the state’s insertion into local and regional water governance.⁹ New Mexicans worry about the delocalization of water and the potential loss of collective water sovereignty.

For Miguel and his neighbors, the concern is less with the awarding of a water right, per se, but rather with what individual rights might allow: a potential and future sale of those water rights away from their shared ditch. In the new system of water law established in 1907, a privately sold water right would no longer be used on the adjacent land. It would “leave” the ditch’s institutional control, leaving less water for the community to work with in the long term.

Adjudication also has institutional implications on the ditch. Adjudication certifies an individual’s water rights, not the community ditch water rights under Spanish and Mexican norms of water distribution. Acequia members fear that adjudication will endanger their closely controlled water commons, where participatory labor, citizenship, and water use are tightly conjoined. The results of adjudication create a patchwork of private water rights owners who are then less tied to the community that built the ditches. These private owners could also theoretically dispose of their individual water rights as they see fit—to their economic benefit but potentially harming the communal aspects of the ditch as a whole.

Adjudication quietly sorts a water-use right as a private-use right, abstractly moving water out of the realm of communal and acequia institutional control. In doing so, adjudication reveals much. I have come to think of this in geologic terms, which, given the pace of adjudication, seems apt. Geologists study stratigraphic layers to understand deep time and Earth’s formation. In adjudication, the state is seeking to extract a single “core” meaning to water, a fixed amount to be bestowed as a private-use right. To get to that layer, the state bores down through time, through the different cultural values given to water and the historical disputes between cultures. Looking over the state’s shoulder, peering down this conceptual borehole, studying adjudication and its results, illuminates those past layers of cultural water: the communal water in acequias, the shared indigenous waters of the Pueblo, and the individual water rights of later settlers and city utilities. To enrich political theorist James Scott’s thoughts on the “state visioning” of water users, adjudication has multidimensional side effects: it reveals old water conflicts and produces new adversarial relationships between water users.¹⁰ Adjudication litigation as a singular state coring of water activates the multiple (vertical) layered definitions of water, even as the state continues to insist on a singular horizontal, two-dimensional private-use right for water users.¹¹

For community ditches across the state and for indigenous sovereign nations, there is fear that water is being translated as only a private good, as only a resource, so that others can locate and buy it as a “commodity.” These competing sovereign views of water, and cultural identity, not only reflect the multiple waves of colonialism in New Mexico. They also reflect how modern capitalism has rolled out in this state, severing ties between communities and the surrounding landscape, resource by resource, layer by layer. For so many people that live along traditional ditches, putting individual price tags on natural features of the landscape can seem like madness.

Forests, land, livestock, and now water are all subject to new commodity definitions. Like the peeling of an onion, the old land grants created initially to serve Hispano villages were separated into redefined layers of timber, real estate property, animals as commodities, and “water resources,” or “water rights,” that can be made profitable and mobile throughout the state.¹² Fundamental cultural, political, and economic differences clash in the process: the perception of water as a communal shared good versus the new political economy of a private-use water rights system imposed by the state of New Mexico.

Adjudication seems perfectly harmless to the state and its employees. After all, they just want to seek out and certify New Mexicans’ water uses as private-use rights. To the prior water sovereigns, on the other hand, the process can seem ominous as the multiple understandings of water are “cored” by the state in a single and simplifying way. For people like Hector or Miguel, this state redefinition of communal water into individual water rights is a violent one, even if that violence is slow, gradual, and often invisible.

It is important to note that water rights can be sold prior to adjudication or even during an ongoing adjudication.¹³ Adjudication is the state recognition of individual usufruct property rights, not an automatic pathway to selling water. This means that landed property owners who have water-use rights can choose to sever their water rights from the land if, for example, they choose to stop farming and irrigating their lands. Then the water, priced per acre, is no longer just a private-use property right but has become monetized, a commodity that can be transferred. The amount of money paid per acre has everything to do with location. A nearby city interested in acquiring water rights might pay up to $50,000 per acre-foot. If the farm is in an isolated rural setting, the price will often be half or a third as much.

The legal process does make those water rights more visible to potential buyers. The state itself is not commoditizing water per se—it is simply mapping, accounting for, and creating an inventory for water rights across the state. The Office of the State Engineer (OSE) does individuate and locate that private water right in time and space, by crop duty for the amount of water per acre needed or used, allowing for future marketing of water. Attorneys, water bankers, willing buyers, and water-rights owners then mobilize that water market to price the water itself. From the state’s perspective, the 1907 water code was simply created to affirm and map individual property rights as a neutral process. State officials I spoke with were often frustrated by local perceptions of adjudication. Nevertheless, state technicians and attorneys should understand that these suspicions and attitudes are based on repeated experiences of past resource access losses.

Antonio from Truchas expressed a common concern regarding potential water transfers. “Losing our water from this ditch would leave a deep cultural wound that we’d never recover from,” he said. His fears may sound extreme, but they are not unjustified. Water moves across basins in the contemporary western United States. This suspicion about making waters nonlocal, held by multigenerational New Mexicans, is often unintentionally confirmed by engineers, attorneys, and state engineer officials. Attend any public meeting on water in New Mexico (and elsewhere in the United States) and you will hear water experts and housing developers calling for water to be put to its “highest economic use.” What they mean is for water to be moved from X function to Y function so as to generate greater economic value per acre-foot. When farmers or rural residents hear this, what they hear is “let’s get water away from farmers and ditches … and get it to the suburbs, the city, industries, or more suburbs.” This neoliberal and triumphalist free market rhetoric confirms the worst fears of farmers as just another way to put a price on water and move it to cities and industries.¹⁴

Miguel, Hector, and most other irrigators understand that adjudicating water rights and potentially selling water rights are two different things, yet they see them as intricately and sequentially linked. Hector told me about a visit from a county tax assessor to stress his point. In Hector’s recounting, the assessor claimed, “I’m not here to raise your taxes. I’m just valuing what you have. Taxes are set by the county commissioners, not me.” Hector answered this assessor with, “Yeah, but if you don’t raise the assessment, then my taxes won’t go up, right?” Thus, in a similar vein, Hector sees adjudication as the flywheel for pricing, selling, and ultimately moving water across basins.

Every potential sale away from the acequia, from the village, would mean less water for local use. Selling water rights away from the community does not just move the water; it erodes the basis for a shared water community that has undergirded many small villages across New Mexico for generations. The push to formalize water rights at an individual level can have serious consequences for other kinds of property arrangements that are community based.¹⁵

THE PRODUCTION OF STATE WATER

Mandated in the 1907 water code, water rights adjudication in New Mexico was designed to map all perfected (in use) water rights. Water was declared state-owned and public, yet the individual-use rights to water would be privately held. New Mexico does not distinguish or rank the order of beneficial-use categories among agricultural, urban, and industrial and treats all water uses equally. Beneficial use of water is the basis for water rights, the measure for water rights (based on amount of use), and the limit (maximum award) for the awarding of water rights and is rooted in prior appropriation law. The presumption is that beneficial use has economic benefits, although this definition has become more expansive in the twentieth century and often includes recreation and instream flows. Prior appropriation also established a historical ordering of first-in-time, first-in-right for the use of water: the earlier the use, the better (or more senior) the water right.

In more than a century since 1907, only about a dozen basins or subbasins have reached the final decreed stage of adjudication and are considered “complete” (see map 3 for completed and pending adjudications as of 2017). Most early adjudications, between 1910 and 1950, were executed in basins with low populations and with few Hispano acequia claims or unquantified Indian water rights involved. What remains to be finished is daunting.

MAP 3. Locations of completed and pending stream adjudications in New Mexico as of 2017. Dark shading with cross-hatching, like the Jemez River Basin, designates areas where all non-Indian claims are filed but Indian water rights have yet to be determined. Adapted from New Mexico Office of the State Engineer map sources.

The state water code charged the OSE with conducting so-called general stream adjudications. General is a misnomer. Universal might be a better descriptor. The work is specific and meticulous and, by design, not particularly efficient.¹⁶ Given this massive task, it is understandable why adjudication took so long to begin and why it is still ongoing. Since its inception, the agency tasked with adjudication, the OSE, has struggled with low staffing, underfunding, and the scale of the process. Adding resources and personnel is difficult. New Mexico is one of the poorest states in the country, and as the former head of the legal division at OSE, D. L. Sanders, put it in 2006: “No Governor wants responsibility for making government larger.”¹⁷

New Mexico’s water adjudication process consists of seven general steps (shown in figure 2). These legal suits are prepared by the OSE and then triggered in concert with the state’s attorney general.

FIGURE 2. Simplified flowchart of the water rights adjudication process in New Mexico. Adapted from the New Mexico Office of the State Engineer and WaterMatters! (Utton Law School: University of New Mexico, 2013).

Each stream adjudication is more complicated than the diagram shown would suggest, and many of the steps in each phase are revisited multiple times. While every adjudication is unique, all include the three main phases shown in figure 2: the research and hydrographic work, the “subfile offers” to individuals, and the larger between-parties inter se process, whereby individuals get to question the rights claimed by other water rights users. While difficult, the technical and research stages of adjudication (in phase one) take far less time than the more contentious courtroom-based procedures on water rights between the parties.

WHAT TRIGGERS ADJUDICATION

Most general stream adjudications in New Mexico start in one of the following ways. First, adjudication can be done according to figure 2, with the state’s attorney general and state engineer filing the case. Second, adjudication can also be triggered by any water rights holder whose claims have been recorded by the OSE in the basin. Third, large water infrastructure projects can also prompt the state to quantify water rights if those water rights would be affected by the new dam, canal, or pipeline. In contrast to other western states, such as Colorado, in New Mexico it is usually the state that files the complaint starting the general stream adjudication process, with the OSE and the attorney general working in concert to file the necessary documents. This is the first adversarial aspect of adjudication in New Mexico. Each step, or phase, of the adjudication process can take years to decades to complete. Naturally, delays ensue if claimants in the basin sued by the state do not respond to offers of judgment in phase two of the process. In most cases, phase three of the inter se process, in which water rights claimants can contest each other’s water rights, is what takes decades. This is the second—and more problematic—adversarial aspect to adjudication, as it complicates social relationships between water users. But each phase can be fraught with complicated cultural and historical baggage.

Nearly seventy-three thousand defendants are now enmeshed in basin lawsuits to ascertain their water rights, in twelve pending adjudications. By one recent estimate, half of all water rights holders are now in view by the state agency (OSE), even if only 20 percent of the state’s basins have been fully adjudicated.¹⁸ The disadvantage to New Mexico’s meticulous approach is that it takes so long for the state. The advantage is that the process is thorough enough that the state, when finished, will have a fairly accurate view and quantitative understanding of how much water is claimed, allocated, and used in any given year. This will, in theory, make it easier for the state engineer to conduct priority administration of waters and manage water allocation.

The length of time to complete adjudication is not always tied to the size of the basin, the amount of water, or its complexity in a biophysical sense. Notably, since the early 1980s, most adjudications that have included Indian water rights have ended not in state adjudication courts but in what is known as settlement, a less court-driven but no less expensive and complex process. These agreements and water settlements are meant to make the process less adversarial, but they often come at a huge cost, as I discuss in chapters 2 through 4. One cannot write about water rights adjudications without discussing water settlements, especially in a culturally diverse state like New Mexico, which has so many sovereign indigenous nations.¹⁹ These agreements and settlements are ways in which local water users can renegotiate the state’s power. They find new ways to not be governed by the state, rather than have the terms set from court litigation.²⁰

TIME, WATER RIGHTS, AND ADJUDICATION

Water rights hinge on the provable date of first beneficial use. If all the rights under consideration in a basin are later than, say, the establishment of New Mexico as a state in 1912, the task is easier. The 1907 water code firmly established the use of prior appropriation law (first in time, first in right), common throughout the American West, which supplanted previous customary traditions. Influenced by Colorado and that state’s strict adherence to prior appropriation, politicians at the time agreed to this template of water law for the state of New Mexico.

Under prior appropriation an individual with an earlier date, say, 1730, as a first-documented diversion and beneficial use of water can get a full allocation of water rights before those with more recent use dates. As long as those water rights are used continuously on appurtenant land or at least not discontinued for more than five years, those water rights “stay” with the adjoining land.

Pre-1907 water rights, which preexisted the New Mexico water code, are recognized as senior water rights. These include both Pueblo (Indian) and Hispano water rights, which get further distinguished. If the entity is a sovereign nation, such as a Pueblo Indian land grant or a Navajo reservation to adjudicate, then US federal government agencies like the Bureau of Indian Affairs or the Department of the Interior, in their trust relationship with Native American nations, step in as a party to the suit. It gets more complicated. Some Indian water rights (typically, Pueblo) are awarded on a historical irrigation acreage basis, using archival and archaeological support, whereas others (like the Navajo or Apache) can be awarded based on what amount of land might be irrigable, referred to as practicably irrigated acreage.

If Hispano post-1598 water rights are at stake, the adjudication also involves extensive archival research conducted by state engineer personnel or contract historians to prove first-use dates by various individuals along the ditch. Acequia members often insist on the communal notion of shared water-use traditions that are the norm on these ditches. They often argue for a single date for the entire ditch (acequia) instead of differential and individual water rights dates. Prior to adjudications, most senior water users ignored strict prior appropriation, especially on Indian lands and along acequias. In both cases, the basis for allocating water was based on the amount of land held, equitable water sharing, and demonstrated need. Water allocation, sharing, and disputes were already complicated enough before the 1907 water code was established.

All of this makes for a byzantine water world. It is perhaps no wonder that scholars outside of law schools have ignored these state procedures.²¹ On the state’s end, one of the very reasons that adjudication is “so damn slow,” as one attorney put it, is because of defendants and their reluctance to engage with the state engineer. There is fear, anxiousness, and often resistance to responding to letters and paperwork. They do their best to ignore the OSE. As a long-time resident of the Embudo Valley put it: “People just like to ignore the state engineer … It’s part of a long history that we just don’t trust the bureaucrats and engineers making decisions about our water.”²² This is not just a refusal of state authority; it is a refusal to acknowledge the state itself.²³ Privately, some irrigators insisted the state has no right to fraction out water rights on their ditches, which is partly why they are reluctant to share information with the OSE. This tactic, however, is only effective at dragging out the time line of making offers to water rights claimants. If the OSE does not hear back on offers of judgment, adjudicating personnel move ahead, certify the right as complete, and assume that their own state historical research on that person’s individual water right was correct. These dating exercises over time, ditch, and priority play out to full effect later on when the OSE has to conduct priority administration in times of drought.

Finally, federal water projects, such as dams, force the OSE to adjudicate water because of the affected water rights. To use a computer analogy, water law is the “software” that influences the structures (engineering) that need to be put into place. The “hardware” of engineering then shapes how water law works on a more practical level once placed on a landscape.²⁴ The water code of 1907 provided the software and legal basis for water priorities and allocation. To be clear, both federal and state dam projects require the start of adjudication to sort the stored waters by water rights holders.

Think of the vast quantity of water held behind a dam: that water is used by those who hold “rights” to particular amounts. Different people may hold different water rights to different sets of water within the same reservoir, whether “native” to that basin or transferred from another basin.²⁵ Fortunately for New Mexico—and most states in the American West—the large reserves of stored water created by dams delayed the need to strictly enforce prior appropriation. This is important to note: things could have been a lot worse without dams, in terms of water scarcity and senior “calls on the river” demanding the state engineer enforce prior appropriation.

Twentieth-century dams and reservoirs bought twenty-first-century water managers and state engineers some additional time and flexibility to adjust to new laws and water allocation technologies. The availability of reservoir water held behind engineered dams has largely allowed water users to avoid senior versus junior water conflicts and to not worry about the actual water law in the West—as tools for storing water, they seemed unmatched.²⁶ Enforcing prior appropriation law is not an easy or desirable process for the state engineer. In fact, prior administration of waters is jokingly referred to in the OSE offices as “the nuclear option.” The slowing and vast storage of water changed both the timing of water releases and mitigated the need for prior administration of water by the state engineer. Massive infrastructure projects connected small farmers like Hector to state adjudicators, water managers, and urban residents across the state, as demonstrated in the next few chapters. Western states completely replumbed their rivers and streams. These new cultures of “expert water” and associated infrastructure were coproduced right alongside adjudication (see chapters 5 and 6).

LAWSUITS ILLUMINATE THE NEW MEXICAN LANDSCAPE

Adjudication as a process “was never meant to be personal,” as one senior adjudicator put it to me in 2009.²⁷ Yet these lawsuits, filed by the state, call out defendants by name and thus feel deeply personal and adversarial. Some defendants’ names become infamous. Imagine that your name is Enrique Abeyta, for example. You come from a long line of Abeytas, a rather common family name in New Mexico, yet now your name has come to suggest something different: a lawsuit. The first alphabetically listed defendant (Abeyta, in this example, or Aamodt for another) in a water adjudication suit becomes the name by which the suit is colloquially known. As one adjudicated farmer joked ruefully, “No wonder they haven’t finished, all the adjudications start with the letter A, they never get to Z!”²⁸ Each of these family names is shorthand for the basins under adjudication across the state of New Mexico.

Irrigators, municipal water employees, and even local politicians were all eager to talk to me about watersheds and water management. However, utter one of the A names associated with a case and their reactions changed. The dead stare, the aloofness, the skepticism on peoples’ faces were all clearly visible. Of course, it wasn’t about the defendants bearing the unlucky names. It was what those shorthand nicknames now meant—the cases themselves and the uncertainty they brought. Even adjudicators get tired of the process over time. “If we didn’t have to adjudicate, Eric, we wouldn’t,” a former adjudicator and OSE attorney told me, her voice and face betraying her weariness.

That said, adjudication was not always difficult, tiring, or perceived as problematic. In early test case basins with little cultural or legal diversity to contend with, the state engineer’s personnel were not regarded with suspicion. After all, the technicians were simply there to map, document, and title out property rights that individuals had long claimed and used. Such was the case along parts of the Mimbres River and the Canadian River, which were done and decreed efficiently. These were less controversial because of the lack of legal pluralism and the lack of indigenous and long-standing Hispano claims to water. Fewer cultures of water translated to fewer hiccups in thinking about water rights as property-use rights.

Technicians who worked on the Mimbres adjudication recalled it as simple and straightforward. “It was pretty easy in the long run … maybe part of it was that there were no Indian water rights claims there, for sure, but overall [shrugs shoulders], it was a cakewalk compared to some of the other cases up in northern New Mexico where everyone seemed ready to question every damn thing we were doing in the courts, in the fields, and everywhere in between.”²⁹ These sentiments were echoed in other interviews from the more culturally diverse basins that remained stuck for decades.

It was the foreignness of prior appropriation water law that struck many as odd. The state seeks to find dates of first use in time to match up to these last names and land parcels for an orderly hydraulic state. There is a logic to the state’s approach in that prior appropriation water law is predicated on the “use it or lose it” basis of beneficial use. When state agents appear to map and quantify water use on a particular plot of land, it is in everyone’s best interest to look or act as if they are fully using their claimed (or historically used) water rights. There’s little incentive under prior appropriation to actually conserve water or to use it efficiently.³⁰ Water rights holders often think they have to fully use their water rights to keep them perfected. That is not the case. But because beneficial use is the “limit” to individual water rights, as explained previously, irrigators and managers alike have no incentive to go below the maximum limit of their beneficial use or their assigned water duties, depending on crops.

Adjudication was supposed to be a template process using watersheds as a basis for doling out water rights.³¹ The new legal system and state code were nevertheless received as having to fully use one’s water rights under prior appropriation (“use it or lose it”). Local irrigators and water users quickly understood what was at stake and carried over that understanding into the “performance” of water use when OSE personnel were completing adjudication maps for the home office. In basins where all possible cultural-legal understandings were all present, the performance of using water was even more critical. This came through in all my interviews. When adjudication was underway in the mapping phase, it was good to be seen irrigating, pumping, or diverting.³² The 1907 water code did share much in common with Spanish Colonial practices for making good on property rights: the act of property possession was about visibly performing those rights and relationships between property owners and the authorizing agent.³³

One water user from Taos, for example, claimed that “my neighbors started using a lot more water when the field mappers [from OSE] were here doing the maps and stuff.”³⁴ Even in adjudicated areas that were less problematic, such as the Mimbres in southwestern New Mexico, an irrigator recalled that “that whole process [of adjudication] changed how we deal with each other; it added a lot of suspicion back then [1970s] that hasn’t really disappeared. It’s only made things worse in a dry area.”³⁵ He went on to say, “Sure, the whole thing [adjudication] was wrapped in the late 1980s [1989], but we had no idea what it would trigger … in pockets of the valley, there were no issues, but in others … it just triggered bad blood and some civil suits, some of which just won’t go away.”

From the state of New Mexico’s perspective, the cultural histories and geographies of water use do not legally matter until adjudications are underway. However, differing federal and state views of identity and bloodline can splinter water users, sometimes in the same family. These complexities of identity were simplified, often reduced to a binary of “Indian” and “non-Indian” identity and citizenship in adjudication issues. This unfortunate splitting of water identities is the result of federal policies and definitions of who is considered an Indian within the United States. It is a kind of biopolitics that does not mince on identity: either you are Indian or you are not, as recognized by US federal entities. Native sovereign nations now also control their own tribal registry rolls for membership. Assertions or assigned definitions of who claims to be indigenous, Hispano, or of mixed Indo-Hispano identity are fraught with challenges, and these binary cultural borderlands are patrolled regularly.³⁶

Binaries of identity and membership can work for creating transparent governance or rulemaking but can complicate cooperation in water matters in New Mexico. Federal versus state legal treatment matters greatly, dictating what kind of water right a person is entitled to according to his or her identity. Next, I present an example of this complex and often perverse cleaving, along with a later tale of two brothers divided by this water-identity issue.

IDENTITY, FEDERALISM, AND WATER SOVEREIGNS

Identity and history matter in New Mexico’s daily water governance. In 1598, new Spanish settlers arrived near Ohkay Owingeh Pueblo (which the Spanish quickly renamed San Juan Pueblo), home to one of the many Pueblo Indian groups along the Rio Grande. The Spanish eventually chose the western bank of the Rio Grande near what is today Chamita and the junction of the Chama River and the Rio Grande, their first attempt at a new capital, to be called San Juan de los Caballeros. The next year, however, the new capital was moved east to San Gabriel. An early ditch was dug in 1598, but the colony of San Gabriel also did not last and was officially abandoned by 1601, although some Spanish and Tlaxcalan stragglers may have stayed behind. By 1610, most officials had moved to the new capital, Santa Fe.³⁷

Those early ditches 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 identity by the federal and state governments—and how the category of “Indianness” 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