Meyer, Michael C.

English

University of New Mexico

Volume 25 
Issue 1 Symposium on Coastal Zone Management 
Winter 1985 
Pueblo Indian Water Rights: Struggle for a Precious Resource, by 
Charles T. DuMars, Marilyn O'Leary, and Albert E. Utton 
Michael C. Meyer 
Recommended Citation 
Michael C. Meyer, Pueblo Indian Water Rights: Struggle for a Precious Resource, by Charles T. DuMars, 
Marilyn O'Leary, and Albert E. Utton, 25 Nat. Resources J. 252 (1985). 
Available at: https://digitalrepository.unm.edu/nrj/vol25/iss1/14 
This Book Review is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has 
been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For 
more information, please contact amywinter@unm.edu, lsloane@salud.unm.edu, sarahrk@unm.edu. 
PUEBLO INDIAN WATER RIGHTS:
STRUGGLE FOR A PRECIOUS RESOURCE
CHARLES T. DUMARS, MARILYN O'LEARY
& ALBERT E. UTTON.
Tucson: University of Arizona Press. 1984. Pp. vi, 183. $22.50.
Legal scholars do not often write books with broad appeal. Pueblo
Indian Water Rights is a major exception. The study is a remarkable one
for a number of reasons. It not only confronts a series of issues central
to the future of continued growth in the southwest, but also addresses an
even more fundamental issue. What should be the role of equity in the
competition for a scarce natural resource?
As lawyers the authors are, of course, interested in legal precedent and
case law, but they frame their answers within the broader cultural construct
of the region's history. They are able to pursue this line of inquiry because
of the massive amount of new historical data made available for the first
time in the longstanding Pueblo Indian water rights case, New Mexico v.
Aamodt. The three authors provide a fresh and eminently reasonable legal
perspective to the historical evidence marshalled by historians William
Taylor, Lawrence Kelley, Richard Frost, Daniel Tyler, Susan Deeds, and
Michael Meyer in that controversial case.
The Pueblo Indians of the upper Rio Grande valley of New Mexico
have been disputing water with their non-Indian neighbors since the first
Spanish colonization of the region in the late seventeenth century. During
the years following that initial settlement Spanish water law was trans-
planted to the northern frontier of the Viceroyalty of New Spain where
it matured and mutated with the exigencies of time and place. It is this
Hispanic tradition, the authors argue, that should provide the framework
for an equitable solution to Pueblo Indian water disputes today. The
Winter's Doctrine, defining Indian water rights in 1908 on the Fort Belk-
nap Reservation of Montana, has no legal applicability to the upper Rio
Grande valley because the United States made no treaty with the Pueblos
similar to that which it concluded with the Gros Ventre and Assiniboine
Indians. The applicable treaty for New Mexico is the Treaty of Guadalupe-
Hidalgo, the document which ended the war between the United States
and Mexico in 1848. Although the Pueblo Indians were not a direct party
to the Treaty, the document did, nevertheless, guarantee the property
rights of all Mexican citizens at the time of the transfer of territorial
sovereignty. Indians were citizens of Mexico at the time.
Spanish and Mexican law, as well as the Winters Doctrine, recognizes
that Indians enjoy first priority to water usage. But they differ tremen-
PUEBLO INDIAN RIGHTS
dously on what that means. The difference centers on the crucial issue
of quantity. Inherent in the Winters decision is the concept of "practicably
irrigable acreage." The Indian population is guaranteed water in an amount
sufficient to cultivate all of the "practicably irrigable acreage" on their
respective land grants or reservations. Spanish and Mexican law was not
nearly so sweeping, as it had other priorities. To be sure, Indian water
rights were carefully protected in the Recopilacion de 1680 and in sub-
sequent decrees both before and after Mexican independence. Indians
were to enjoy derechos de primacia, primary rights. These rights were
elastic and could be expanded as the Indian population grew or their needs
changed. But water rights were not predicated on a fixed quantifiable
scale such as "practicably irrigated acreage." Because Spanish colonial
and Mexican law concerned itself with protecting the rights of others as
well, the body of water law was much more flexible.
Throughout the study the authors strongly support the Hispanic water
tradition of New Mexico, not the Winters Doctrine:
How can a court apply Winters to lands that were not set aside by
the United States but were in existence under another sovereign and
another legal system that not only defined land protected and Pueblo
water rights but also considered the rights of others? The United
States obligated itself to honor Pueblo water rights under the Treaty
of Guadalupe Hidalgo; it did not agree to protect under case law yet
to be decided. (p. 113)
Interestingly enough, both the historical data and the case law prompted
this important conclusion. It is fortuitous that the evidence led the authors
in this direction because the hallmark of the Hispanic legal tradition,
nurtured in arid Iberia, was balancing the interests of contending parties
in water allocations on a scale uniquely fashioned to weigh equity. It not
only sought to protect third parties but to assess need and intent and to
reject claims to exclusive ownership and use. Few historians would sug-
gest that these lofty goals were attained in New Mexico or elsewhere in
northern New Spain. But if Spanish and Mexican officials innocently or
purposely misread the scale, it was not the fault of the judicial mechanism
itself.
This work, carefully researched and nicely written, instructs the courts
and the politicians on a sensible course to be followed in future appor-
tionment of the waters of the Rio Grande. I commend it to the public as
well.
Michael C. Meyer, Director
Latin American Area Center
University of Arizona
January 1985]


Pueblo Indian Water Rights: Struggle for a Precious Resource, by Charles T. DuMars, Marilyn O\u27Leary, and Albert E. Utton

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Pueblo Indian Water Rights: Struggle for a Precious Resource, by Charles T. DuMars, Marilyn O\u27Leary, and Albert E. Utton

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