Thursday, September 28, 2023

Pueblos Start Legal Proceedings to Quantify Their Rio Grande Water Rights

As the River Puddles, Six Pueblos Assert Their Sovereignty


By Gwynne Ann Unruh

For the first time in 40 years, a stretch of the Middle Rio Grande that flows through Albuquerque surrendered to a blazing hot 100-plus-degree temperatures in late July.  As the fifth-longest river in the U.S. went dry and became a collection of puddles, it left an array of aquatic life, some endangered, stranded and hard pressed to find a spot to call home. It also signaled that more rationing of water for farmers is again on the horizon.

While southern portions of the Rio Grande often dry out, the 1/2 mile of drying that began near the Rio Bravo bridge was another wake-up call on how serious the drought is across the state. With reservoirs at a fraction of their capacity, it’s clear that the river’s flow will not replenish them again this year. Right now, rains - not planned water releases - are what’s keeping the Rio Grande flowing.

As the puddles formed in the Rio Grande, a Six-Pueblo coalition started the legal process to quantify their water rights. The nature and amount of “Indian water rights” is a complex topic. Common-law theories or doctrines pertaining to Indians continue to be judicially refined and evolve. What effect quantifying Tribal water rights will have on non-Native water rights holders has not been fully explored. Pueblo and Tribal water rights belong to the Pueblo or Tribe, rather than an individual member, and are adjudicated to that governing entity.

Rio Grande Pueblos and other Native Tribes have inherent sovereign authority over their water resources as granted by the U.S. Congress. This means the Pueblos hold the senior-most water rights on the Middle Rio Grande. Native Americans have the right to draw enough water to enable their own self sufficiency from the rivers that flow through their reservations. As a key group of stakeholders in water rights in dry or low-flow years, their entitlement could be the largest proportion of the total surface water available for irrigation in the Middle Rio Grande.

It can take a long time and a lot of money to qualify water rights settlements, and once completed, infrastructure development to utilize those water rights have to be considered and the finances for such projects need to be found. Water rights are addressed according to specific watershed and adjudication therein. If they are located in New Mexico, and Pueblos and Tribes may have to pursue their water rights in more than one adjudication area.

Pueblo and Tribal water rights are determined and described under federal law, and may be asserted as aboriginal and federal reserved water rights claims. Some Pueblos and Tribes also claim storage rights and contract water rights.

“It’s time,” Sandia Pueblo Gov. Stuart Paisano told state lawmakers at the Water and Natural Resources Committee meeting in July, meaning it's time to determine the specific amount of water that should be allocated to regional Pueblos. Paisano said Pueblos need “a seat at the table” and deserve compensation for helping New Mexico meet the Rio Grande Compact deliveries. “It’s going to be a huge task,” he said.

In May the Six-Pueblo coalition seeking quantification of their water rights, also sought a formal relationship for the Pueblos at the Rio Grande Compact Commission’s table that oversees how the Rio Grande’s water is split, managed and used between states. In 1999, the Pueblos also requested to join discussions on the operating contract between the Middle Rio Grande Conservancy District and the Bureau of Reclamation. 

The Rio Grande Compact Commission was established in 1938 after years of lawsuits over the river’s waters among Colorado, New Mexico and Texas. The Compact recognizes the treaty obligations among the federal government, Mexico and Indian Tribes. Current commissioners at the Compact’s table include Colorado State Engineer Kevin Rein, New Mexico State Engineer Mike Hamman and Texas Commissioner Bobby Skov. The U.S. Bureau of Reclamation holds a non-voting seat and chairs the meeting. 

While monsoon storms have raised the Rio Grande water levels, it’s going to be another short, dry year for irrigation and some farmers may not be able to plant winter crops. When deciding how much water from the river can be allocated for municipalities and crop irrigation, regional water plans and management have to consider the fact that the Pueblo and Tribal senior water rights are not subject to state law nor are they governed by the state administration.

Only the Pueblos have an entitlement to receive Rio Grande surface water. The State of New Mexico’s share of the water under the Rio Grande Compact depends on the amount of flow in the river. As of the end of 2021, New Mexico owes more than 41 billion gallons under the Rio Grande Compact, which results in restricting the state’s ability to store or release water from upstream reservoirs.

Gov. Vernon Abeita (Isleta), speaking for the coalition at the Omission meeting in May, said the Pueblos have cultivated and lived on their land “for time immemorial” and should be included in all correspondence and meetings the Rio Grande Compact Commission has that may impact access to the Rio Grande water. The Pueblos want to be included in future commission meetings so they are able to interact directly with the commission rather than through the Bureau of Indian Affairs.

“In the past, the Bureau of Indian Affairs represented Pueblos at commission meetings,” Albeita said. “It is now time the coalition interacts with the commission directly, and for the commission to engage the coalition Pueblos, so that our voices can be heard.” 

“Our water resources are being adversely affected, and are threatened by the ongoing mega-drought and climate changes, and the Texas v. New Mexico Supreme Court litigation,” Abeita said.

Much of the Pueblo’s water is stored in El Vado Reservoir; however, the Bureau of Reclamation has started a two-year project to clean out the reservoir and plans to store the water owed to the Pueblos in the Abiquiu Reservoir for the next several irrigation seasons during the project. Pueblo water allotment is calculated monthly. Any unused water during any irrigation month reverts to the MRGCD Rio Grande general pool on the first day of the following month.

Because the Pueblo and Tribal rights to water are so old, they receive their water first based on how much is available. While Native American rights for using water out-prioritize non-Native American water rights, quantification of many Native American water rights have yet to be determined.

Some of the federal oversight rules that govern how their water is used on Tribal land were recently removed by Interior Secretary Deb Haaland. The U.S. Department of the Interior relaxed rules now allow tribes more control over their water rights and establish a federal assessment team to support the six Pueblos in resolving water claim issues between the state of New Mexico and the Middle Rio Grande Conservancy District.

“If we are to truly support Tribal self-determination, we cannot be afraid to review and correct actions of the past that were designed to create obstacles for Tribal nations,” Secretary Haaland said about the legal change. “Today’s action underscores our efforts to move forward in this new era.”


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