madalena draft layout

8/6/2019 Madalena Draft Layout

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MADALENA


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In New Mexico, visitors may feel--as much as

see--the dominance of the sky. Its enormity can

create a sort of euphoria. The visceral sense of

being on top of the world as the sky stretches from horizon

to horizon can lead to a mistaken sense of invincibility andpower. The powerful, proud viewer may imagine the Great

Things to be imposed on this promising landscape, but

overlook the lack of green here. That lack of green should be

a clue that there may not be quite enough water to realize

the wildest of dreams, but sometimes it has been a clue left

undiscovered until far too late.

Some newcomers have realized that the civilizations

in New Mexico for millennia have gained wisdom about

surviving in such a fragile human landscape and from

dreaming only of living in harmony with the place itself.

Some have accepted the reality that water must be shared

and not just diverted, leaving some high and dry while

supporting new visions in new times. Others have sought to

create a dierent reality. In the meantime, people invisible

from afar continue to have an intimate connection with New

Mexicos water, using it in daily rites that respect its power

and inspiration in the desert.

AS STATE LEGISLATORS KNOW, ANY TRIP

FROM THE NORTH, SOUTH OR WEST TO THE

CAPITOL AT SANTA FE LEADS THROUGH THETRADITIONAL HOMELANDS OF THE 19 PUEBLOS1,

where descendants of the rst people in New Mexico live,

people who know a good deal about sustainability and

endurance, and who know that in this landscape survival

requires patience as well as vision, a sense of place as well as

of possibility, modesty as well as imagination.

Legislators know that civilizations in New Mexicothat would seem familiar to persons in the 21st century

were already established and dissolved by 1250 A.D. Most


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legislators know that the early civilizations solved the

problem of access to sustained water supplies through

building irrigation canals. Most legislators know that by

the 1500s, Puebloan people numbered 248,900 living in

some 134 or more towns and villages, speaking some sevenlanguages belonging to four Indian familiesthe Tanoan

(near Galisteo), Keresan (primarily along the Rio Grande

corridor), Zuni (some 70 miles west of Albuquerque) and

Uto-Aztecan (at Hopi, in Arizona).2 (The Tiwa, Tewa and

Towa languages are sometimes categorized as subsets of the

Tanoan.)3 And most know that, because these puebloan

people were living in the desert long before anyone else, they

have something to oer in the way of wise use and deserve

recognition as prior users of much of the states water.

Today, puebloan people are still living their lives

quietly in the lands visible from highways to Santa Fe. They

persist in a way of life that has survived invasions, changes

of external sovereigns and federal and state water policies.

They have negotiated and litigated to preserve their ability

to live on this land and use its water, with what some see

as tragic results, but they have persisted. The issue of

nding adequate stores of water for newcomers has been

impossible to ignore since statehood and still remains so in

the centennial year.

One of these puebloan people is James RogerMadalena, elected in 1985 from House District 65 and re-

elected at every opportunity since. A member of Jemez

Pueblo, the Representative earned his bachelors degree in

Sociology with a minor in Political Science from Eastern New

Mexico University, and has chaired important committees

of the legislature dealing with water, energy and natural

resources and Indian aairs. In 2006 the Representative wasgovernor of Jemez, also called Walatowa and Guisewa as

well as representing the area in the state legislature. He has

constituents in Bernalillo, McKinley, Rio Arriba and Sandoval

counties and speaks English and Towa, a language once

spoken in 11 villages, but only at Jemez today.4

PUEBLO CITIZENSHIP, LAND AND WATER STATUS IN

NEW MEXICO

Representative Madalena could not have voted when

the state was created in 1912. Instead, it took until 1967,

two years after passage of the federal Voting Rights Act for

pueblo people to know for certain they could not be turnedaway at New Mexico polling places.

The pueblo peoples formal inclusion in this states

representative democracy lagged for fty years after

statehood. Despite the 1924 federal validation of native

peoples rights to vote, Miguel Trujillo, an Isleta pueblo

veteran of World War II who was a teacher and principal

at the Bureau of Indian Aairs School at Laguna Pueblo,

was turned away from a Valencia County polling place in a

1948 state election.5 The federal district court armed his

right to vote and criticized the state constitutions language

excluding Indians not taxed from the right to vote as a

violation of the U.S. Constitutions Fourteenth Amendment.6

However, state voters did not approve deletion of thelanguage until 1967after adoption of the federal Voting

Rights Act--despite attempts to amend the constitution

beginning in 1953 to comply with the opinion.7

For most native people across the U.S., the federal

courts identied the federal government as owing a trust

responsibility to provide certain services and protections for

dispossessing people from native lands. Because the federalgovernment was charged with that responsibility, states had

no taxing or governing authority.


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Clearly, the pueblo people did not share that history

of domination and displacement, as they were not removed

from their land and forced to live elsewhere. In 1858 the

U.S. Congress conrmed many pueblo land titles8. Pueblo

people were presumed able and entitled to sell and buy

portions of pueblo lands, holding them in fee simple

without any impairment to sale. In fact, for some three

decades prior to New Mexicos statehood, the U.S. Supreme

Court recognized that pueblo title was actually superior to

that of the federal government and that pueblos were not

Indian tribes within the meaning of the 1834 and 1851 Non-intercourse Acts.9 Non-pueblo people began to buy acreage

from pueblo holders, often without pueblo governmental

approval.

However, in the year after New Mexico became

a state, the U.S. Supreme Court held that pueblo people,

despite being recognized separately by the Treaty of

Guadalupe Hidalgo, should be aorded the same federalprotection aorded to reservation tribes, including

a prohibition on individual sale of pueblo lands.1 The

protective stance of the federal government over pueblos

undermined pueblo sovereignty and threw into dispute

signicant numbers of acres held by an estimated twelve

thousand non-pueblo people in New Mexico.10

Holm O. Bursum, 11 Republican caucus chair, chair

of the Republican Central Committee in New Mexico, and

a leader of the convention that created the New Mexico

constitution introduced the Bursum Bill at the U.S.

Congress in 1922. The bill would have permitted award to

non-Indian claimants of disputed pueblo land and water

rights, even without evidence of a good-faith purchase. The

bill was nally defeated after the Council of All the New

Mexico Pueblos Appeal to the People of the United States

and personal testimony by a delegation of some 17 pueblo

leaders in Washington.12 Through the Councils intervention,

the Bursum bill was trounced, and the Pueblo Lands Act of

1924, establishing a three-member board to determine thedisposition of pueblo lands acquired by non-pueblo people

was established instead. The Council endorsed the Act on

the basis that it allowed for appeals of the boards decision,

but the board found for non-pueblo people often enough to

alienate a good portion of pueblo lands in New Mexicos rst

dozen years as a state.

Although the federal government was formally

responsible for the preservation and disposition of

pueblo lands, state policies in which the pueblos had no

participation aected land title and water rights to the

detriment of the pueblos. By 1907, the New Mexico territory

had adopted the water code still in use today, giving a state

actorthe state engineerbroad authority to adjudicate

water rights as necessary, including those for both surface

and ground water. Most water compacts were made

between 1922 and 1950.13

At the rst statehood legislative session in 1912,

the legislature passed bills authorizing the investigation

of underground water pumping at even the rst session

(House Bill 77) and issuing bonds for purchase andconstruction of a water and sewer system (Senate Bill 95).

It considered but did not pass other proposals to regulate

the use of water in New Mexico (House Bill 93), to improve

the Rio Grande (Senate Bill 60) and to regulate the use and

distribution of water (Senate Bill 166).

By 1967 when the state constitution formally eliminated

the provision that excluded Native American people fromthe right to vote, the consequences of pueblo exclusion

in policymaking were feltthough it was far too late for


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pueblos to be involved in crucial decisions. It was too

late even in 1953 when the state court invalidated the

constitutional provision against excluding Indians not

taxed from voting in New Mexico. For instance, at Cochiti

Pueblo, construction had begun with earthll in 1953 for theCochiti Dam, authorized under the federal Flood Control

Act of 196014 and completed in 1973a project that caused

the ooding of traditional agricultural lands and the demise

of an entire way of life. Taos Pueblo lost 2,401.16 acres

to claims by non-Indians adjudicated under the Pueblo

Lands Act and 926 acres to the town of Taos. The Pueblos

of Tesuque, Nambe, Pojoaque, and San Ildefonso lost than4000 acres to claims by non-Indians under the 1924 Act. 15

At Jemez, acreage was reduced from 270,000 acres including

a variety of land forms to just under 90,000 acres of rolling

hills. In 2000, the private Lannan Foundation was still

attempting to correct the non-pueblo takings, and awarded

$4.5 million to Santa Clara Pueblo to nance the re-

purchase of more than 5,000 acres of ancestral lands known

as Po Pii Khnu.

REPRESENTATIVE MADALENAS GENTLY

IRONIC SMILE while speaking of sympathizing with

ranchers in the legislature who worry about the loss of land

and water rights seems especially generous in the contextof such losses. As chair of the House Energy and Natural

Resources Committee, the Representative said he aimed

to keep the peace with ranchers by truly understanding

how precious the rights to land and water are. I treated

members fairly, he said, and let discussions go on where

they were needed. I told them, You ranchers are very

protective of the environment, the ingress and egress, and Ican imagine whatever you feel. Thats how native people feel

when we look at the [federally expropriated and privately


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alienated] that used to be ours. Whatever you feel, thats

what we feel too. I dont blame you.

Our land is sacred to us. Water is life blood to us,

just as to any group of people, the Representative said, but

even closer for us, in some senses.

The water is who we were, who we are and who

we still want to be. It is part of our human experience. Our

intent is not to sell it, but to use it as we always have.

The Representative described his public eorts

to preserve sovereign rights today, both as a legislator and

chief negotiator of the Jemez water settlement committee.

His public eorts are deeply connected to his more private

connection with the Jemez River, though, in his daily ritual

of running. The run and the ritual bath before it are said

to settle the mind as well as give liberation to the body.The Jemez people have a notable tradition of long-distance

running, shared among other pueblos, and Representative

Madalena adheres to the tradition. Running is who we

are. It is how we express ourselves, the Representative

explained. The Towa running tradition is based on racing,

especially in the fall during the harvest season, but it

also emphasizes the endurance and stamina you need

to be a hunting people, the Representative continued.

Francisco Madalena, who served as Jemez governor in

1920, was a runner, as were other Madalena relatives in

Jemez government serving in 1976, 1978 and 1983. The

representatives uncle on his fathers side was a well-known

distance runner.

My dad and grandpa were distance runners, the

Representative said. When I was young, I could go with my

grandfather, and he ran. The older man, who introduced

Representative Madalena as the eldest of a dozen childrento deer hunting, the stars and the running tradition, would

wash in the river and wrap his food for the day in a cloth


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Holy Week, the threatened abolition of the Kachina cult by

Governor Bernardo Lopez de Mendizabal (1659-1660) and

the assassination of Quarai governor Esteban Clemente

on orders of Governor Diego Dionisio de Penalosa (1661-

1664).18

The culminating event in the arrest of some 47religious leaders from the pueblo required a coordinated

response. When the leaders of San Ildefonso (Po-sogeh),

Jemez (Walatowa), San Felipe (Koots-cha), Nambe (Nampe),

Santa Clara (Ka-p-geh), Taos (Teotho), Picuris (Welai),

Santo Domingo (Khe-wa, formally changed to Kewa in 2009)

and Tesuque (Tetsugeh) were ignored by Governor Treveino

in their requests to release some 43 pueblo people on threatof retaliation after three were hanged and one took his own

life, the runners served as the telegraph system. 19

Prior to the conquest of Coronado in 1541, Jemez pueblo

occupied several villages, some as many as four stories high

with as many as three thousand rooms. Between these

villages were hundreds of smaller houses used as base

camps for hunting in spring and summer. At rst contact

with the Spaniards, Jemez people numbered some 30,000.

After the Spanish reconquered New Mexico a dozen years

after the revolt, the Jemez Nation was moved into the single

village of Walatowa and in 1838, members of the Pueblo of

Pecos resettled among the Jemez. In 1936 the two Pueblos

were legally merged by an Act of Congress. In the 1970sJemez had as much as 70% of its enrolled population (1,890)

living on the reservation. Today the population has grown

to around 3,400 members.20 At one time Jemez consisted

of 270,000 acres including a variety of land forms, the

Representative, governor of the pueblo in 2006, said. Today

it is 89,623.78 acres21 of rolling hills.

Of the Jemez runners, N. Scott Momaday haswritten, These are people who run as water runs, nding

their way in the landscape as water lls the river bed. I still

run, the representative said, but I now see that things are

changing. When I was a child, our water was always high.

The last few years, I can sometimes run on the riverbed. Its

nothing but puddles.

The Representative expressed the rational viewshared by puebloan and others when he said, I think

it would make sense for a newcomer to ask the pueblo

whether it would share its water, whether they would share

it for livestock and farming. It would make sense to ask, he

said, but that is not what happened. Instead, new settlers

said they recognized the rights of pueblos to water, but

limited the right to use it. At present, Jemez does not havethe right to future or recreational use of its water and lately

was denied the ability to create a holding pond for a spring

water storage facility. The Bureau of Indian Aairs (BIA)

acknowledged the Pueblo of Jemez right to a guaranteed

number of acre feet of the Rio Jemez, but only of the surface

ow.

Pueblo governments have been working toward

resolving conicting claims for use and storage of water

for nearly a century now. As a legislator, Representative

Madalena has championed many such bills as well as others

targeting Native American issues such as:

providing Native American students the opportunity

to attend tribal schools on the states lottery scholarship(last introduced by the Representative as House Bill 104

in 2006, sponsored by others in the Native American

delegation in subsequent years and still not passed as of the

centennial year);

providing for education of voting ocials about

pueblo voting rights (most recently introduced as House Bill

207 in 2009); increasing criminal penalties for fraudulent

identication of Native American arts and crafts (House Bill


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210 in 2008);

providing for the clean-up of the legacy of uranium

mining in Northwest New Mexico (House Bill 749 in 2009);

restoring American Indian religious protections

(House Memorial 128 in 2009); establishing state cultural properties for burial of

certain human remains (House Bill 73 in 2007);

assessing cultural needs in Indian child placement

(passed as House Bill 223 in 2005, but pocket vetoed

by Governor Bill Richardson after his signature on the

companion bill sponsored by Senator Leonard Tsosie, Senate

Bill 214); and tracking Native American student success rates

(House Memorial 43 in 1999), among the hundreds of bills

sponsored over his rst twenty-ve years as a legislator.

By the 50th legislative session, the U.S. Congress

approved funds and set them aside for settling various

pueblo water disputes. Correcting for a shocking

underpayment for lands lost as a part of the adjudications of

the Pueblo Lands Board, the federal government set aside all

but some 40% of the funding required. The states portion,

however, was not yet appropriated.

In the rst of the two sessions of the 50 th legislature,

Representative Madalena sponsored House Bill 515, which

would have temporarily allocated six percent of the statesseverance tax bonding from Fiscal Years 2012 through

2021 to payment of the states portion of the pueblo and

Navajo water settlements approved and funded by the

U.S. Congress. Congress authorized $1.16 billion for the

settlements and appropriated over $300 million, requesting

another $150 million budget authorization at the time New

Mexico commits its share of the fund, some $130 million.The bill died. The Representative then attempted to get

some $15 million from the current years severance tax bill

used for capital outlay for the same purpose. However, as

discussed in the interview with Lynda Lovejoy, that bill was

libustered and ultimately defeated on the last day of the

session. One year remained of the Centennial session to

begin to correct for the underpayment. The Representative did not project how long

it might take for the settlement of such old disputes to

be funded, but was condent that it could be done. His

decades in service as a state legislator, his status as the

chief negotiator of the Jemez water settlement negotiating

committee, and his experience as a son, a father and now a

grandfather living so close to the Jemez River allowed hima certain patience. I know I am just a stepping stone, he

said. And especially when decisions are important, we need

to be respectful. We are ambassadors of our people, and we

greet people with respect.

I have not had a political vendetta, the rst pueblo

legislator ever elected concluded. I have tried to educate

and inform people that there are native people in this state

and we are all dierenteven from each other. I have tried

to establish a foundation of education and respect through

diplomacy. In recognition of the Representatives attention

to diplomacy and his chairmanship of the committee, the

New Mexico Institute of Mining and Technology awarded

him its Earth Sciences Award for diplomacy in 2011.Time will take care of itself, and the way becomes

clearer over time he said. Time is something people can

use to advantage, if they acknowledge it.

As I run in the hills, I notice things and think about

them, he said, but before I know it, time has passed and

I have come to eight or ten miles and the things I thought

about are better resolved.In the same way, he expects that the resolution of

pueblo land and water disputes will become clearerand


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not because all the pueblo land and water will have been

expropriated. Finding the best solutions will take steady

work, constant attention and a thorough investigation of

possibilitiestasks in which the Representative has been

engaged for a quarter century already. He runs as the riverruns and solves many problems along the way.


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1 Isleta, Sandia, Santa Ana, Cochiti, San Felipe, Santo

Domingo (now Kewa), Tesuque, Nambeh, Ohkay Owengeh

(formerly San Juan), Pojoaque, San Ildefonso, Santa

Clara, Picuris, Taos, Acoma, Laguna, Jemez, Zia, and Zuni.According to Joe S. Sando, Nee Hemish: A History of Jemez

Pueblo (Clear Light Publishing, Santa Fe 2008, originally

published in 1982 by UNM Press), appendices at 237, the

Towa names for these pueblos are, respectively, Tewakwa,

Sundayagee, Tunndagee, Kag-trgee or Kagtowa, Kwilegee,

Tahwegee, Tsota, Namba, Okangee, Pojoagee, Peah Sho Gee,

Shaa Peah Gee, Peh Kwileta, Yelata or Yelawa, Tho-tiagee,Kio-weh-gee, Walatowa or Towa, Ceya-kwa and Sr-nee. The

purpose of including the Jemez names here is to reinforce

eorts to preserve original names at least where readily

available.

2 Ramon A. Gutierrez, When Jesus Came, the Corn

Mothers Went Away, (Stanford University Press, 1991) p.xxv.

3 According to Gutierrez, the Tanoan language family

included Tiwa (Taos, Picuris, Sandia and Isleta pueblos);

Tewa (Santa Clara, San Ildefonso, Pojoaque, Nambe, Tesuque

and Cuyamunge as well as San Juan de los Caballeros and

Yugeuingge pueblos); Towa (Giusewa --or San Jose de Jemez

pueblo) and Piro (spoken along the banks of the Rio Grande

and its tributaries). The second large language group

the Keres was spoken at Acoma some 60 miles west of

Albuquerque and by Cochiti, Santo Domingo, San Felipe, Zia

and Santa Ana and, by 1697, at Laguna. The third language

group was the Zuni, spoken at six pueblos approximately 70

miles northwest of Acoma. The fourth was Hopi, spoken in

Arizona.

4 Jemez Pueblo is the only remaining Towa- speakingpueblo. In eorts to prevent exploitation, the tribes

traditional law makes it illegal to write the Towa language;


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thus, it is preserved entirely by the speakers at Jemez

Pueblo.

5 See Trujillo v. Garley, U.S. Dist. N.M.-No. 1350

(1948).

6 Some assert that the Fourteenth Amendmentsprotections exclude native peoples: At Section 1, the

amendment provides that: All persons born or naturalized

in the United States and subject to the jurisdiction thereof,

are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life,liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of

the laws. However, immediately thereafter, in the section on

apportionment found at Section 2, the Amendment clearly

states that Representatives shall be apportioned among

the several States according to their respective numbers,

counting the whole number of persons in each State,

excluding Indians not taxed. Vine DeLoria, Jr. and David

E. Wilkins, Tribes, Treaties and Constitutional Tribulations,

(University of Texas Press, Austin 1999) , pp. 141-149.

7 The voting privileges section of the

state constitution was written intentionally to be

unamendablerequiring at least three-fourths of the

electors voting in the whole state and at least two-thirds

of those voting in each county of the state for amendment.

See New Mexico Government, Paul L. Hain, F. Chris Garcia,

and Gilbert K. St. Clair, editors (UNM Press, Albuquerque

1994), Constitutional Politics in New Mexico 1910-1976,

chapter by Dorothy I. Cline.

8 See N.M. v. Aamodt, 537 F.2d 1102 (10th

Cir. 1975)(detailing the history of Indian lands legislation including

conrmation by Congress in 1858, 11 Stat. 374).

9 United States v. Joseph, 94 U.S. 614 (1876).

10 See Statement of Michael L. Connor, Commissioner,

Bureau of Reclamation, U.S. Department of the Interior,

before the Natural Resources Committees subcommittee on

water and power, in hearings on H.R. 3254, theTaos Pueblo Indian Water Rights Settlement Act, September

9, 2009.

11 See more details of the congressmans activities at

statehood in New Mexico Government..

12 Tisa Wenger, Land, Culture, and Sovereignty in the

Pueblo Dance Controversy, Journal of the Southwest, June

2004.13 See Sections 72-15-1 to 72-15-28 NMSA 1978.

14 Public Law 86-645, 74 Stat. 493.

15 See testimony of Michael L. Connor, Commissioner,

Bureau of Reclamation, U.S. Department of the Interior,

before the Natural Resources Committees subcommittee on

water and power, in hearings on H.R. 3342, for the Aamodt

water rights settlement, September 9, 2009. The U.S. Senate

passed water rights settlements for tribes in three states in

late 2010, providing federal funds toward the settlement for

dispossession of pueblo lands under the Pueblo Lands Act.

The federal bill provided $66 million in immediate funding

and authorized $58 million for future spending, subject to

appropriations for the Taos water settlement, some $81.8

million for the Aamodt settlement. See www.Indianz.com

16 Joe S. Sando, Popay: Leader of the First American

Revolution, Clear Light Publishing, Santa Fe (2005) pp. 219-

225.

17 Id.

18 The arrest of 47 religious leaders, theft of their

religious articles, herbs and medicine and hanging of fourin front of their own people as ordered by Governor Juan

de Trevino (1675-1677) was only the last straw. One man


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was hanged at Walatowa (Jemez), one at Koots-cha (San

Felipe) and a third at Nampe (Nambe). A fourth man

hanged himself before he could be taken to his village. The

43 remaining prisoners were imprisoned and subjected to

public lashings. Popay, p. 18.19 Id.

20 State historian website and Jemez Pueblo, History

of the Pueblo of Jemez. Walatowa Visitors Center, http://

www.jemezpueblo.com/ (accessed July 7, 2009).

21 Joe S. Sando, Nee Hemish:A History of Jemez

Pueblo, Clear Light Publishing,Santa Fe (2008), p. 23.

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