Abstract
Pueblo communities have lived in what is now the American southwest since time immemorial. They have practiced irrigated agriculture since well before the Spanish arrived in 1540 (Cohen’s Handbook 2012, §4.07(c); New Mexico v Abbot 2010). In the American West, water is allocated on a first-in-time basis—called prior appropriation. On its face, applying the rules of prior appropriation would appear to mean the Pueblos have paramount water rights to all other users. Yet, despite their long history of water use, Pueblo communities’ right to water remains in question. The story of why this is so illustrates some of the problems that occur when colonising powers treat Indigenous groups as if they have no laws and as if there is no differentiation among Indigenous groups. It also demonstrates how a focus on procedural details can provide the appearance of fairness while concealing substantive injustice (Hendry and Tatum 2016). This chapter will propose a new way of looking at the particular problem of the Pueblos of the American southwest and their rights to water.
I would like to thank Holly Doremus and Robert Glennon for their comments on an earlier and longer versions of this chapter. I would also like to express my appreciation to the editors of this volume for their welcomed and insightful review and commentary. Finally, I would like to express my deep appreciation for the Pueblo governors, officials, citizens, and attorneys who continue to advance their substantive rights as sovereign nations.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Ohkay Owingeh is the original name for the Pueblo formerly known as San Juan. A discussion of the treatment of Pueblo people by the Catholic Church and Spanish settlers is beyond the scope of this chapter. For an excellent study of the Pueblo Revolt, see Wilcox (2009).
- 2.
Simply put, the Doctrine of Discovery is grounded in the idea that a European king or queen could give permission to an explorer to possess and conquer the lands of ‘savages’ (Williams 2012).
- 3.
An additional wrinkle to Pueblo water rights was that the patents did not address land titles within the Pueblos held by non-Indians. For example, by 1913, 80 to 90 per cent of Pueblo lands close to urban centres had passed to non-Indians (DuMars et al. 1984, p. 56).
- 4.
See also, United States v Canderlaria (1926) 271 U.S. 432 (holding with specific reference to the 1851 application of the 1834 Indian Trade and Intercourse Act, that the Pueblos were indeed ‘Indians’ and that they were subject to exercise of Congressional guardianship).
- 5.
Unfortunately, there is insufficient space in this volume to fully describe the court’s reasoning in this case. For an excellent summary of U.S. v Abousleman and the other cases in the Pueblo water law litigation see, Hughes (2017) pp. 236–40.
- 6.
Treaty of Guadalupe Hidalgo (1848). It is important to note that, ‘Mexican’ in this context is a term inclusive of citizens of the Pueblos.
References
C. Briggs and J. Van Ness (eds) (1987) Land, Water, And Culture: New Perspectives On Hispanic Land Grants, (Albuquerque: University of New Mexico Press).
Cohen’s Handbook of Federal Indian Law (2012) (Albuquerque: American Indian Law Center, 2012).
C. Dumars, M. O’Leary, and A. E. Utton (1984) Pueblo Indian Water Rights: Struggles For A Precious Resource, (Tucson: University of Arizona Press).
M. Ebright (1987) ‘New Mexican Land Grants: The Legal Background’ in C. Briggs and J. Van Ness (eds) Land, Water, and Culture: New Perspectives On Hispanic Land Grants, (Albuquerque: University of New Mexico Press).
B. Ederington (1997) ‘Property as a Natural Institution: The Separation of Property from Sovereignty in International Law’, American University International Law Review, 13(2), 263–331.
P. Gomez (1985) ‘The History and Adjudication of the Common Lands of Spanish and Mexican Land Grants’, Natural Resources Journal, 25, 1039–1080.
J. Hendry and M. Tatum (2016) ‘Human Rights, Indigenous Peoples, and the Pursuit of Justice’, Yale Law and Policy Review,34, 351.
R. Hughes (2017) ‘Pueblo Indian Water Rights: Charting the Unknown’, Natural Resources Journal, 57, 219–261.
M. C. Myer (1996) Water in the Hispanic Southwest: A Social And Legal History, 1550–1850, (Tucson: University Of Arizona Press).
D.P. O’Connell (1967) State Succession In Municipal Law And International Law, Volume 1, (Cambridge: Cambridge University Press).
C. Schmitt (2005) Political Theology, (G. Schwab trs.), (Chicago: University Of Chicago Press).
M. Sornarajah (ed.) (1986) The Pursuit of Nationalized Property, (Dordrecht: Springer Netherlands).
United States Of America To Various Pueblos, 1 November 1864.
M. Wilcox (2009) The Pueblo Revolt And The Mythology Of Conquest: An Indigenous Archaeology Of Contact, (Berkeley: University of California Press).
R. A. Williams (2012) Savage Anxieties: The Making Of Western Civilization, (New York: Palgrave Macmillan).
Legislation and Cases
Pueblo Land Act of 1833.
Pueblo Land Act of 1924.
Treaty of Guadalupe Hidalgo (1848).
Arizona v California (1963) 373 U.S. 546.
Botiller v Dominguez (1889) 130 U.S. 238.
Cherokee Nation v Georgia (1831) 30 U.S. (5 Peters) 1.
Collins v Yosemite Park Co. (1938) 304 U.S. 518.
Colville Confederated Tribes v Walton (1981) 647 F.2d 42 (9th Cir.).
Enabling Act of New Mexico (1910).
General Allotment Act (1887) 25 U.S.C. 331.
Johnson v M’Intosh (1823) 21 (8 Wheat) 543.
Morton v Mancari (1974) 417 U.S. 535.
New Mexico v Aamodt (1976) 537 F.2d 1102 (10th Cir.) [Aamodt I].
New Mexico v Abbot (2010) unpublished opinion case number 68cv7488 BB-ACE (U.S. Dist. Crt. Dist. N.M.).
New Mexico ex rel. Reynolds v Aamodt (1985) 618 F. Supp. 993, 996 (D.N.M.) [Aamodt II].
United States v Abousleman (1983) No. CIV-83-1041 SC (D.N.M.)
United States v Adair (1983) 723 F.2d 1394.
United States v. Canderlaria (1926) 271 U.S. 432.
United States v District Court for Eagle County (1971) 401 U.S. 520.
United States v Joseph (1876) 94 U.S. 614.
United States v Lucero (1869) 1 N.M. 422 (N.M. Terr.).
United States v Percheman (1833) 32 U.S. 51.
United States v Sandoval (1913) 231 U.S. 28.
United States v Soulard (1830) 29 U.S. 511.
United States v Winans (1905) 198 U.S. 371.
Winters v United States (1908) 207 U.S. 564.
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Copyright information
© 2018 The Author(s)
About this chapter
Cite this chapter
Modzelewski, D. (2018). Pueblo Water Rights. In: Hendry, J., Tatum, M., Jorgensen, M., Howard-Wagner, D. (eds) Indigenous Justice. Palgrave Socio-Legal Studies. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-60645-7_4
Download citation
DOI: https://doi.org/10.1057/978-1-137-60645-7_4
Published:
Publisher Name: Palgrave Macmillan, London
Print ISBN: 978-1-137-60644-0
Online ISBN: 978-1-137-60645-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)