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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.