Tilton, James

English

University of Denver

Water Law Review Volume 18 Issue 2 Article 30 1-1-2015 Access to Justice & Tribal Water Rights James Tilton Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation James Tilton, Symposium Notes, Access to Justice & Tribal Water Rights, 18 U. Denv. Water L. Rev. 479 (2015). This Symposium Notes is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. SYMPOSIUM NOTESthe location in question. To Justice Hobbs, context was always of critical im-portance. In all of Justice Hobbs's work, the deep history of the land madpeople in question, the profound sense of that place, was the necessary foun-dation for understanding the questions at hand.Finally, she described Justice Hobbs's love of neighbors, friends, and fain-ily, and his comminent to a diverse and inclusive conmuinity in Colorado.She revealed that the Court's recognition of law firms committed to pro bonowork was Justice Hobbs's brainchild. She also talked about how justiceHobbs recently took his grandson on a college tour, and is currently taking acreative writing class with his granddaughter. To Justice Hobbs, the ethic ofplace is rooted in the land, and integr'ates a profound appreciation of fainilyand friends.justice Eid closed by observing that Justice Hobbs is an accomlplished au-thor, traveler, historian, and poet. Although he will be retiring from his posi-tion on the bench, he will doubtlessly continue in his other "jobs," tirelesslycommitted to history, community, and his ethic of place.Following Justice Eid, ChieflJustice Nancy Rice shared her thoughts andrellection. on nearly two decades of working with Justice Hobbs. As SupreleCourt Justices, the seven members of the Court spend a great deal of time to-gether, often sitting, talking, mad waiting for things to happen. To Chief JusticeRice, Justice Hobbs represents one-seventh of her life, her conversation, andher work; accordingly, she will greatly miss his camaraderie and friendship.Of special inportance to Chief.lustice Rice is the learning center at theRalph Carr Judicial Center. She described how a committee, which includedJustice Hobbs, inet regularly for two years in order to create the center, andshe believes that the learning center represents one of Justice Hobbs's greatestlegacies.The ChiefiJustice's linal story involved Justice Hobbs convincing the otherjustices to pertormn a play in commenoration of the founding father John Ad-ans and his wife Abigail. Justice Hobbs played John Adams, and Chief Jus-tice Rice played Abigail Adamns. To the delight of the crowd, Chief.lusticeRice brought pieces from her costume to share, and reenacted a particularscene where she threw her bonnet in frustration at John Adams's failure togive women the right to vote in the US Constitution. The play is one of herfavorite memories of her time with Justice Hobbs, a representation of the fun,humor, and intellectual curiosity that he brought to the Court.Chief justice Rice finished by thanking Justice Hobbs for his friendship,his many contributions to the Court, and his many contributions to the state ofColorado.Kaly RankinACCESS TO JUSTICE & TRIBAL WATER RIGHTSProfessor Lucy Marsh, a professor at the University of Denver Sturi Col-lege of Law dedicated to pro bono work for elderly and low-income tribal cli-ents, was the moderator for the opening panel at the University of DenverWa1erLiwevieWs eighth Annual Symposium. Professor Marsh introducedthree esteemed speakers: Retired New Mexico Supreme CourtJustice PatricioIssue 2WA TER LA W REVIEWSerna, Chairman of the US Indian Law and Order Commission Troy Eid,and Professor Sarah Krakoff of the University of Colorado School of Law.All three panelists spoke on a topic that is dear to Professor Marsh's and Jus-tice Gregory Hobbs's hearts-the rights of Native Americans and other under-served groups and Justice Hobbs's enduring contributions to the protectionand advancement of those rights.Retired Justice Serna served fifteen years on the New Mexico SupremeCourt. He was a District Court Judge for eleven years before that. JusticeSema is still active as a member of the Emeritus Board of Directors for theNational Consortium on Racial and Ethnic Fairness in the Courts. JusticeSerna began the panel speaking about how important the past is to Navajopeople and how a group of Navajo awarded him with his own bolo tie. Thebolo tie is a trademark of Justice Hobbs, who is rarely seen without one. Ac-cording to justice Serna, the bolo tie represents for Navajo people their phi-losophy that people are to be "in harmony with nature."Justice Sema spoke of the New Mexico tribal state judicial consortium.He explained that the consortium is composed of individuals who are ap-pointed by the New Mexico Supreme Court to represent the twenty-three rec-ognized tribes and pueblos in New Mexico. Justice Sema noted that the con-sortium was established to facilitate communications between the courts andthe tribes. The consortium succeeded by creating tribal courts with their owntribal judges. Further, he explained that the tribal judges are given authorityby the state to make rulings, and that these courts are unique in that each trib-al judge sits in tandem with a state judge. Justice Serna then spoke of his per-sonal experiences with the tribal courts, his appreciation for the tribal courtjudges, and the effective work he has done to improve the livelihood of tribalmembers.Next, Justice Serna shared an Indian water law case that has been ongoingsince 1966, New Mexico ex wie. Sitve Engineer v. Aamod. The case was filedin 1966 in the United States District Court for the District of New Mexico andis the longest running water law dispute in New Mexico. The case is adjudicat-ing the water rights in the Rio Pojoaque System of both pueblo and non-pueblo peoples of New Mexico. The pueblo peoples include the Nambe, Po-joaque, Tesuque, and San Ildefonso. Further proceedings in the case werestayed in August 2000. The parties still have not reached a settlement agree-ment and the case remains open today. Justice Serna concluded his presenta-tion by reading an poem by Justice Hobbs, "An Oath as Good as Fry Bread."Troy Eid presented next. Eid is a principle shareholder in the Denver o-lice of the law firm of Greenberg Traurig LLP. He also teaches is an adjunctprofessor at both the University of Denver Sturn College of Law and theUniversity of Colorado School of Law. He has worked as a US Attorney forthe District of Colorado and is recognized for his passion for improving thelives of Native Americans. Eid gave a glimpse into Justice Hobbs's life beforebeing a Colorado Supreme Court Justice. Justice Hobbs was once a boyscout. He excelled at that, as he has many things in his life, and earned an Ea-gle Scout Badge to show for it. Justice Hobbs also served in the Peace Corpswith his wife, Bobbie.Eid also shared that Justice Hobbs revolutionized water law here in the\Vest through his work in the judiciary. The role of reclamation, as a prilci-Volume 18SYMPOSIUM AOTE'pie of water management, has changed over the years. During this change,Justice Hobbs has helped people understand water law, steering the discussionby issuing educational decisions on water law throughout his career as a jus-[ice. Justice Hobbs's reputation only grew when he becane the focal point ina 2009 primary election. In that primary, Congressman Scott McGinnis wasaccused of plagiarizing an article written by justice Hobbs. This incident was,according to Eid, justice Hobbs' love for "water, personified in the state."Eid, like Justice Serna, also had stories to share of times when justiceHobbs served the Native American community. Justice Hobbs, together withMike Welsh, obtained a two million dollar grant to set up a workshop forNavajo teachers on tribal sovereignity. The goal of the prograun wias to equipthe Navajo teachers with the skills needed to develop a curriculum and toshare their own history with others. Eid concluded his speech by commend-ing Justice Hobbs for his involvement in educating the public of the im-portance behind Governor Hickenlooper's fornnal apology to the Cheyenneand Arapahoe tribes for the Sand Creek Massacre. The massacre occurredon November 29, 1864, when Colorado Territorial militia slaughtered be-tween two hundred and four hundred tribal people. Those murdered weremostly women, children, and elders. It was not until December 3, 2014, thatGovernor Hickenlooper apologized to the descendants of these tribes, thelirst lormal apology of the massacre from a representative of the State. justiceHobbs played a large role in making the apology happen. justice Hobbs gavea speech at the State Capitol that day, and Eid quoted one of the NativeAmerican leaders who was present for the ceremony. That leader said ofJus-tice Hobbs, "That judge sure told the truth."The panel concluded with a presentation by Professor Sarah Krakoll, whois well-renowned in the areas of American Indian law and natural resourceslaw. Krakoff started the American Indian Liw Clinic at University of Colora--do School of Law, and before that she lived on the Navajo Nation for threeyears while working for DNA People's Legal Services. Today, Krakoff regu-larly takes students to work with traditional farmers in the San Luis Valley.Krakoff and her law students work pro bono for low-income farners engagedin traditional irrigation techniques that use "acequias." Connecting this workto Justice Hobbs' ultimate respect for indigenous traditions, even when theyare contrary to the western doctrine of water law, she presented her work on"The Acequia Project" as "a Hobbsian Trifecta."The Acequia Project is a trifecta of three values that are dear to justiceHobbs: access to justice, scholarship and scholarly writing, and western waterlaw. Krakofi commended Justice Hobbs for all the work mad contributions hehas made, as an attorney and as a jidge, in the realm of water law. Krakoffexplained how the Acequia Project benefits the land and farmers of CostillaCounty, Colorado. Many of the farmers in Costilla County are descendants oforiginal Spaniard settlers.Next, Krakoff provided some light on why her work is termed theAcequia Project. She explained that acequias are used in irrigation. The wa-ter is diverted in a canad from the river, with smaller ditches running off of thecanal to provide water to the fields that it flows by. When water is scarce, theacectuia families and community determine how to prioritize the water fromthe acequia for irrigation. This method of irrigating, and the equitable divisionISStlc 2IVA TE? LA W REVIEWof water, is counter to Colorado's water law doctrine, which recognizes first intime, first in right. Colorado has chosen to recognize acequias as a form ofirrigation and assisted these f'armers by passing Colorado Revised Statutes ec-tion 7-42-101.5. This legislation gives the farmers in the valley the ability toestablish bylaws similar to conventional ditches that, amnong other things, maygive acequia members the right of first refusal when a member seeks to selltheir water rights.After providing all this background, Krakoff spoke of the other parts ofthe trifecta. A couple of the students on the Acequia Project have done exten-sive research and drafted an acequia handbook. There is also a scholarship inplace for those participating in the progran. The majority of the work (lonehas been by the students of the project, along with collaborators.Krakoff ended her presentation of the Hobbsian Trifecta with a fourthcommitment of justice Hobbs, one that all of the speakers recognized-hispoetry. Krakoff delivered a brief five-line poem, known as a cinquain, shewrote herself in honor of Justice Hobbs. The poem ended by honoring jus-tice Hobbs as "one of Colorado's sages."The final part of the presentation was a question and answer session. Pro-fessor Marsh asked Justice Hobbs to explain the case of Archuleta v. Gomez,a case the Colorado Supreme Court considered twice, most recently in 2012.Having written both opinions, Justice Hobbs explained how the Court deter-mined that a person may adversely possess a water right after diversionthrough a headgate if the adverse possessor beneficially uses the water right.As Justice Hobbs related, he had considered this legal concept before and dis-cussed the possibility of water right adverse possession with the late JosephSax while at the University of California-Berkeley School of Law, but beforeArchuleta the issue was unresolved in Colorado.Jamles K1tonWATER LAW AND THE HISTORY OF DEVELOPING THE WESTAs part of its one-day annual Symposiumn, the University of Den ver WaterLaw Review hosted a three-member panel discussing the importance of waterlaw history and its relationship to Justice Hobbs's tenure on the Colorado Su-preme Court bench.The first speaker and the host of the panel, Professor Tom Romero ofthe University of Denver, relayed the importance of history, its effect on thelaw, and its utility in arriving to consistent legal conclusions. Historical and le-gal traditions are often linked, as most judges are trained similarly to histori-ans. Judges describe all sides of the issues with which they are presented, evenif those sides are socially unpopular. History also plays an important role inlegal jurisprudence around issues including free speech and claims of reversediscrimination. Professor Romero also stated that history is necessary for legalcontext, something that Justice Hobbs incorporated extremely well into his le-gal analysis and conclusions as a justice. Lastly, Professor Romero mentionedthat history plays a vital role in water law, using the example of how detenina-tions of historical consumptive use require close inspections of historical pat-terns.Volume 18

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