Chapter 3 PUEBLO INDIAN WATER RIGHTS: A HISTORICAL OVERVIEW
| Jurisdiction | United States |
[Page 3-1]
PUEBLO INDIAN WATER RIGHTS: A HISTORICAL OVERVIEW
NICOLAI KRYLOFF is a historian. For twelve years, he has worked for the historical consulting firm Historical Research Associates, Inc. (HRA). His background is in U.S. environmental history. In graduate studies at Colorado State University, his work focused on the history of water in the American West, with an emphasis on groundwater development in the South Platte Valley. Since joining HRA, he has worked on legal cases involving tribal natural resources on U.S. Indian reservations nationwide. He also has worked on matters of water rights, boundary questions, and land use. Additional areas of experience include environmental contamination, administrative histories, and interpretive planning. As a researcher, Mr. Kryloff has extensive experience at the National Archives, U.S. Library of Congress, U.S. Department of the Interior, National Museum of American History, and many other public and private repositories. He was also the lead author of Building Strong in Korea: A History of the U.S. Army Corps of Engineers, Far East District. He co-authored a history of the U.S. Army Corps of Engineers, Baltimore District, and was project manager for an award-winning history of water use in South Florida and the Everglades. Prior to joining HRA, he worked as a journalist and editor, and as an assistant at the Colorado Water Resources Archive. He is based in Albuquerque, New Mexico.
The Pueblo Indians have an ancient history of irrigation. Long before the Europeans came to their homelands, the indigenous Pueblo communities of what is now New Mexico brought forth bountiful crops from a hot, dry land. Yet, despite their long practice of water use, today's nineteen sovereign Pueblo nations have faced extreme difficulties in defining and securing their water rights.
The reason lies in the fact that Indian water rights are based on Indian land rights. Thus, the tortuous history of Pueblo land rights has shaped the character of Pueblo water rights, making them difficult to fit within the established framework of U.S. Indian water law. The result has been decades of litigation, affecting both the Pueblos themselves and New Mexico state water adjudications generally. This historical overview of Pueblo Indian water rights offers an introduction to the subject.
A Pueblo Indian water right, in this context, is a water right appurtenant to the core landholdings of the Pueblos--their "Spanish grant" lands. Each Pueblo in New Mexico is in possession of such lands, their claims having been recognized by Congress. Many Pueblos also possess other lands, reserved by congressional act or executive order, or purchased by the Pueblos. For those lands, state-based water rights or federally reserved water rights may attach. However, Pueblo water rights appurtenant to their core landholdings do not fit precisely into those categories.1
Federal courts have outlined several aspects of Pueblo Indian water rights. In 1976, the U.S. Court of Appeals for the Tenth Circuit ruled that they come under federal, not state, jurisdiction. The court also held that they are prior to all non-Indian water rights. In 2020, the Tenth Circuit confirmed their continued existence, overturning a ruling that they were extinguished by the sixteenth-century Spanish monarchy. These traits--continued existence, federal jurisdiction, and senior priority--are the main judicially established points of Pueblo water rights.2
However, the nature and measure of these rights are not clearly defined. A federal district court in the long-running case United States v. Aamodt produced a 1985 decision addressing a range of issues. However, the court's rulings were never tested on appeal, and the parties reached a settlement in 2006. Another lengthy case, United States v. Abousleman, is still active and produced the
[Page 3-2]
most recent Tenth Circuit ruling. In addition, several other court cases and congressional acts have touched upon Pueblo water rights, but many points remain in question.3
Indian Water Law: "Confusion Elevated to Principle"
Because of the Pueblos' unusual land history under U.S. law, their water rights have not fit easily into the established architecture of Indian water law, which historian Norris Hundley, Jr., described as "confusion elevated to principle." However, several concepts are well-established: aboriginal rights, reserved rights, and practicably irrigable acreage.4
In 1905, the U.S. Supreme Court articulated the idea of "aboriginal rights" in the case United States v. Winans, which was not a water-rights case--it involved the treaty-based fishing rights of the Yakama Nation. The court's decision stated: "The treaty was not a grant of rights to the Indians, but a grant of rights from them--a reservation of those not granted."5 In other words, the tribe held certain rights from time immemorial, and it reserved certain of those rights by treaty with the United States.6
In 1908 came a landmark ruling in Indian water rights: Winters v. United States. For the first time, the U.S. Supreme Court articulated the concept of a "reserved" Indian water right. The case involved the Milk River in Montana, where the Gros Ventre and Assiniboine Indians of the Fort Belknap Indian Reservation in Montana faced an urgent shortage of irrigation water, due to more recent upstream diversions by non-Indians.7 The court held that a special water right attached to the Fort Belknap Reservation, reasoning that when United States and the Indians signed an agreement creating the reservation in 1888--mainly for agricultural purposes--they had, by implication, reserved enough water to fulfill those purposes, even though the 1888 agreement did not mention water.8
Moreover, the Winters court ruled that the Indians' reserved water right was exempt from Montana's prior appropriation system, and that beneficial use was not required to maintain the right. The ruling hinged on the 1888 Agreement which, in the court's view, established the date of the right reserved. The ruling also affirmed that the Indians were entitled to water in the amount they could reasonably use, subject to change as the Indians' needs changed.9
[Page 3-3]
In the 1963 case Arizona v. California, the U.S. Supreme Court introduced a way to measure reserved Indian water rights: "practicably irrigable acreage." The case involved water rights attaching to five Indian reservations along the lower Colorado River. The irrigable acreage standard was, according to the court, "the only feasibly and fair way" to quantify the tribes' water rights. This measure gave the tribes enough water to supply all reservation lands susceptible to irrigation, resulting in more than thirteen percent of the river's projected annual flow. The rights dated back to the creation of each reservation--either by congressional act or executive order for the reservations at issue.
Pueblo lands did not fall into the categories addressed in the Winans, Winters, and Arizona v. California rulings. There were no treaties between the Pueblos and the United States, and the U.S. government never "reserved" their lands. Pueblo water rights stood outside these precedents because of the unusual history of Pueblo lands.10
History of Pueblo Indian Lands
The nineteen sovereign Pueblos of New Mexico are hardly the only indigenous groups in the United States whose lands have been negatively impacted under United States governance. For example, on many reservations, the nineteenth-century policy of allotment led to the problem of "fractionated" ownership among multiplicities of Indian heirs--resulting, over generations, in certain parcels having hundreds or even thousands of individual owners, rendering simple land-use decisions practically impossible. Even so, under U.S. law Pueblo lands have suffered a peculiarly twisted land history, to the detriment of the Pueblos and their water rights.11
Today's Pueblos are the inheritors of an ancient history of irrigation. Their ancestors mastered the practice along the Rio Grande centuries before the Spaniards came, like their ancestors before them in desert places even more severe. Historically, the Pueblos did not identify as a single homogeneous entity. Although varying relationships existed among them, each Pueblo was (and remains so today) basically an autonomous unit--politically, socially, and economically.12
Pueblo independence is reflected in language differences. There are three Puebloan language groups, each mutually unintelligible: Tanoan, Keresan, and Zuni. Within the Tanoan family are three separate dialects that are also mutually unintelligible: Tiwa, Tewa, and Towa, plus a fourth (Piro) that was spoken in Pueblos not now occupied. Despite these differences, there were similarities in
[Page 3-4]
Pueblo lifeways and architecture--multi-story, adobe-walled fortress towns, with access to fresh water and fields planted with corn, beans, melons, and other crops.13
When the first Spaniards arrived in 1540, they were impressed by Pueblo agriculture. "They cultivate the ground in the same way as in New Spain," wrote Francisco Vasquez de Coronado. His lieutenant, Hernando de Alvarado, described the middle Rio Grande near present-day Albuquerque: "This river of Our Lady runs through a very broad valley dotted with corn fields . . . The people appear to be good, and land-tillers rather than warlike; they have much food in the shape of maize, beans, and melons and fowl in great abundance."14 In short order, Coronado's entrada pillaged Pueblo storehouses and laid waste to their villages, leaving the entire Tiguex province of about a dozen Pueblos totally depopulated when the Spaniards returned en masse to Mexico in 1542. So began the Pueblos' shared experience of disruption due to intrusion of colonizing nations, first by Spain and...
To continue reading
Request your trial