Pueblo Water Rights

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.