The Rio Grande Compact: Blane M. Sanchez is from both Acoma and Its the Law! Isleta Pueblos. Blane has a B.S. in agriculture from New Mexico State University and has completed graduate courses in the Water Resources Program at the University of New Mexico. He also has taken EPA technical The Rio Grande Compact: training courses. Currently he is employed Its the Law - But with the All Indian Council Pueblo. Previ- What About ously, Blane worked for the Pueblo of Isleta Pueblo Water? and served as their environmental point of contact and Water Quality Officer. Prior to working in the water quality/environment area, Blane spent 12 years dedicated to natural resources and wildlife management with the BIA/Southern Pueblos Agency. Blanes background has provided him the opportunity to work on a number of Rio Grande related issues stemming from bosque management/restoration to silvery minnow recovery efforts. The Rio Grande Compact: protect and secure Indian land and water interests. Its the Law - But What The states continuing commitment to extinguish Indian sovereignty and subsume Tribal govern- About Pueblo Water? ments under state law is a well documented fact.2 One aspect of such history and fact is our topic of discussion today, the Rio Grande Compact. In 1938, when the Rio Grande Compact was created, why were the Pueblos not present to This presentation represents the speakers participate? Was this a planned oversight to opinions and thoughts and IN NO WAY ignore the presence of Pueblos and their water represents in any form the views of the interests? Could this oversight have been planned Pueblos/Tribes. in order to make it so difficult or even impossible to amend the Compact and the Mexican Water The failure of the federal government to Treaty years later to include Indian water? As we uphold it trust responsibility to Native well know and for the most part, Tribal water Americans is clearly demonstrated in its rights have been determined through the courts interpretation of treaties, Executive Orders, and deep-seated institutional ambivalence as other agreements made between Indians and the guardian over Native American water 1 federal government. Such interpretations have not resources. been to the full enjoyment of Tribes. Though Article XVI of the Compact contains disclaimer It is acknowledged that throughout U.S. language, this does nothing more than create more WRRI Conference history, the federal government has failed to questions than answers. Proceedings 1999 1 The Rio Grande Compact: Article XVI acknowledging this agreement. So how can we Its the Law! Nothing in this Compact shall be expect this Compact to apply to the Pueblos? construed as affecting the obligations of the United States of America to Mexico States and state institutions are bound under existing treaties, or to the Indian by the provisions of the Rio Grande Tribes, or as impairing the rights of the Compact. The federal government is The Rio Grande Indian Tribes. likewise bound, as a matter of comity. In Compact: its capacity as trustee for the Indians, Its the Law - But So what does this exactly mean? Let me point out however, it is arguable that it is not What About some basic tenets. bound. There is no indication in the Pueblo Water? compact that the Pueblos or Tribes of The law of the Rio Grande is a one state have agreed to the quantities composite of international treaty provi- pledged to a sister state.5 sions, interstate compact commitments, federal reclamation laws, state laws, and Also, we find, undefined Pueblo Indian water rights. These Indian pueblos hold water rights The Rio Grande originates in the moun- reserved under federal law and treaties tains of southern Colorado and en route which are not controlled by either interstate to the Gulf of Mexico passes through compacts or by state law.6 New Mexico, Texas, and by Mexico... because it cuts through three states, its But yet, Indian water was excluded when the flow is further apportioned by the Rio Compact was devised in terms of delivery ar- Grande Compact. Under this compact, a rangements to Pueblos, with the exception of the portion of its water is retained in Colo- disclaimer. Clearly, Pueblo water did not seem to rado, a portion retained in New Mexico, be that important a factor. There were bigger and the balance consumed in Texas and issues. Mexico.3 The Compact reflects the perception First, lets re-frame the geographic setting and during negotiations that a guaranteed the jurisdictional governments inadvertently left annual release of 790,000 af from out from the above excerpt. Again, I must con- Elephant Butte would protect existing tinue to remind audiences, there are not only three downstream uses in Texas, New Mexico, states found within the Rio Grande basin, but also and Mexico.7 18 Pueblos4 and three Tribes, each a recognized individual sovereign government. So what about the Pueblos and the fact that Second, let me define the term Compact they have the highest priority water right? Should according to Websters New World Dictionary: not the Compact reflect meeting those obligations (n) an agreement between two or more first? If delivery schedules were created among individuals, states, etc.; covenant the states, should not the same apply to Colorado Next, let me define the term Covenant: and New Mexico to meet delivery obligations to (n) Law - a formal sealed, contract the Pueblos, which would consequently affect Finally, let me define the term Contract: Texas? Despite not containing delivery language, (n) an agreement between two or more Article XVI of the Compact would be put to the people (or in this case states and pos- test by six middle Rio Grande Pueblos. sible tribes) to do something, especially I would like to acknowledge Diego Abeita, one formally set forth in writing and Pueblo of Isleta, Porfirio Montoya, Pueblo of enforceable by law Santa Ana, and Domingo Montoya, Pueblo of Applying these definitions to the Rio Grande Sandia for their efforts to insure Pueblo water is Compact, this covenant,or contract, is an not obligated to the Rio Grande Compact. Due to agreement entered into clearly by three states. New Mexicos debt to Texas in 1951, the WRRI Nowhere do we find a single Pueblo signature Compact Commission ordered that no water be Conference Proceedings 1999 2 The Rio Grande Compact: stored in El Vado Dam. This directive would exercised readily by all the Pueblos. Mini- Its the Law! directly impact the six middle Rio Grande Pueb- mum instream flows, if applied by the los ability to irrigate. The six middle Rio Grande Pueblos, would support endangered species Pueblos met and appointed the Irrigation Commit- habitat, while not affecting their other uses. tee comprising Diego Abeita, Porfirio Montoya, Where should the Pueblos (and other Tribes) and Domingo Montoya to protect the Pueblos water come from? As stated before, the The Rio Grande water rights.8 burden should not solely rest with New Compact: After meeting with Bureau of Indian Affairs Mexico but be shared by all three states and Its the Law - But (BIA) attorney William Brophy and others, the maybe Mexico as well. Many claim it is What About Irrigation Committee made a request to the impossible to renegotiate the terms of the Rio Pueblo Water? Secretary asking that the Compact Commission Grande Compact. Given that constraint, or review its decision. When the Commission refused inflexibility, choices are few for New Mexico. to change its decision, the Secretary directed the Ramifications of Arizona v. California could Middle Rio Grande Conservancy District mean that New Mexico will have to relinquish (MRGCD) to store water for the six middle Rio Indian water to the Pueblos and Tribes. A Grande Pueblos at El Vado, even though no other recent Albuquerque Tribune article entitled, storage was allowed that year. That action set a Tribes could be big winners in Arizona precedent allowing water to be stored in El Vado water dispute, reported that Arizona and for the six middle Rio Grande Pueblos, which has federal negotiators are working on an continued ever since. agreement that could leave 10 Indian tribes in The Irrigation Committee continued to control of nearly half of the Colorado River function apart from the Texas/New Mexico water that flows through the Central Arizona dispute of the Rio Grande Compact. When Texas Project.12 What would be the result in New sued New Mexico in the Supreme Court in 1951, Mexico if a parallel determination were made, the Committee urged the U.S. to file a brief especially in light of the Rio Grandes meager asserting the water rights of the six Pueblos. The supply of water? Special Master appointed to hear the case met Who on the Rio Grande Compact Com- with the Committee chairman to hear the Pueblos mission represents Pueblo water interests? concerns. In a report to the Court, the Special The front cover of the Report of the Rio Master stated that the U.S.s duty to protect the Grande Compact Commission every year Pueblo water rights in the Rio Grande made it an states that the report is submitted to the indispensable party to the case. As a result, the governors of Colorado, New Mexico, and Court dismissed the action in 1957.9 Texas. What about Pueblo governors? As pointed out earlier, Article XVI of the Other fundamental questions must be Compact creates more questions than answers. answered. A step forward in resolving our Here are a few. collective water issues would be to first recognize In terms of the Agreement10 for Indian Water the Pueblos sovereign status and truly give them Storage in El Vado, what happens to the the respect they deserve on a government to Pueblos stored water if native water is government basis.