MADALENA

n 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 and power. 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 different 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 THE TRADITIONAL HOMELANDS OF THE 19 PUEBLOS1, where descendants of the first 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 Mexico that would seem familiar to persons in the 21st century were already established and dissolved by 1250 A.D. Most

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 seven languages 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 offer 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 finding 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 Roger Madalena, elected in 1985 from House District 65 and reelected 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 affairs. In 2006 the Representative was governor 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 turned away at New Mexico polling places. The pueblo peoples formal inclusion in this states representative democracy lagged for fifty 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 Affairs School at Laguna Pueblo, was turned away from a Valencia County polling place in a 1948 state election.5 The federal district court affirmed 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 the language 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 identified the federal government as owing a trust responsibility to provide certain services and protections for dispossessing people from native lands. Because the federal government was charged with that responsibility, states had no taxing or governing authority.

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 confirmed 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 Nonintercourse 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 afforded the same federal protection afforded 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 significant 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 finally 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 the disposition 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 first 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 affected 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 first statehood legislative session in 1912, the legislature passed bills authorizing the investigation of underground water pumping at even the first session (House Bill 77) and issuing bonds for purchase and construction 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 from the right to vote, the consequences of pueblo exclusion in policymaking were feltthough it was far too late for

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 earthfill in 1953 for the Cochiti Dam, authorized under the federal Flood Control Act of 196014 and completed in 1973a project that caused the flooding 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 than 4000 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 finance the repurchase 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 context of 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 I can imagine whatever you feel. Thats how native people feel when we look at the [federally expropriated and privately

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 efforts to preserve sovereign rights today, both as a legislator and chief negotiator of the Jemez water settlement committee. His public efforts 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 children to deer hunting, the stars and the running tradition, would wash in the river and wrap his food for the day in a cloth

around his waist so that he could eat as he ran. Representative Madalenas godfather advised him to bathe in the river, then run and do so with a positive intention, but it took some years before the representative took the advice to heart, he saidstarting after he had reversed the pattern, run and then bathed only to come down with pneumonia. Running has been a way of life for the representative, who grew up running throughout the hills and canyons surrounding his home. His sons, Joshua, elected Jemez governor in 200816 and his son Darryl, a Sandoval County commissioner, have literally followed in his footsteps, running for health and for the adventure and satisfaction of being in the Jemez canyons, the hills and through traditional eagle-catching lands at the Valles Caldera. Jemez runners on some occasions run simultaneously south from the Red Rock visitors center

north of the pueblo and north from the crossing of Highway 4 and the river by San Ysidro. Stories of the famous Towa runners persist, and one wherein a runner was seen at a distance running uphill from the Gilman tunnels on the west into La Cueva, up to Redondo Peak and Vallecitos de los Ladios persists. Stopped and asked how much longer he could keep running, the runner said he had no problems left, as the rest of the way south to Caldwell Hill was all downhill. Runners from pueblos, including Jemez, relayed information in the great Pueblo Revolt of 1680 led by the middle-aged Ohkay Owengeh man, Po pay.17 The revolt was organized in part after the hanging of 29 men at Jemez Pueblo during the term of Governor Fernando de Arguello Caravajal (1644-1647); the killing of nine men from Jemez, Nafiat and Alameda and enslavement of more for a decade by Governor Hernando de Ugarte (1649-1653) for complicity with Apache theft of the royal herd during

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 (16611664).18 The culminating event in the arrest of some 47 religious 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 threat of 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 first 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 1970s Jemez 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 has written, These are people who run as water runs, finding their way in the landscape as water fills 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 view shared 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 have the 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 Affairs (BIA) acknowledged the Pueblo of Jemez right to a guaranteed number of acre feet of the Rio Jemez, but only of the surface flow. Pueblo governments have been working toward resolving conflicting 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 officials about pueblo voting rights (most recently introduced as House Bill 207 in 2009); increasing criminal penalties for fraudulent identification of Native American arts and crafts (House Bill

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 first twenty-five 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 first of the two sessions of the 50th legislature, Representative Madalena sponsored House Bill 515, which would have temporarily allocated six percent of the states severance 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 filibustered 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 confident 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 him a 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 first 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 differenteven 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

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 river runs and solves many problems along the way.

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 efforts 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- speaking pueblo. In efforts to prevent exploitation, the tribes traditional law makes it illegal to write the Towa language;

thus, it is preserved entirely by the speakers at Jemez 9 United States v. Joseph, 94 U.S. 614 (1876). Pueblo. 10 See Statement of Michael L. Connor, Commissioner, 5 See Trujillo v. Garley, U.S. Dist. N.M.-No. 1350 Bureau of Reclamation, U.S. Department of the Interior, (1948). before the Natural Resources Committees subcommittee on 6 Some assert that the Fourteenth Amendments water and power, in hearings on H.R. 3254, the protections exclude native peoples: At Section 1, the Taos Pueblo Indian Water Rights Settlement Act, September amendment provides that: All persons born or naturalized 9, 2009. in the United States and subject to the jurisdiction thereof, 11 See more details of the congressmans activities at are citizens of the United States and of the State wherein statehood in New Mexico Government.. they reside. No State shall make or enforce any law which 12 Tisa Wenger, Land, Culture, and Sovereignty in the shall abridge the privileges or immunities of citizens of the Pueblo Dance Controversy, Journal of the Southwest, June United States; nor shall any State deprive any person of life, 2004. liberty, or property, without due process of law; nor deny 13 See Sections 72-15-1 to 72-15-28 NMSA 1978. to any person within its jurisdiction the equal protection of 14 Public Law 86-645, 74 Stat. 493. the laws. However, immediately thereafter, in the section on 15 See testimony of Michael L. Connor, Commissioner, apportionment found at Section 2, the Amendment clearly Bureau of Reclamation, U.S. Department of the Interior, states that Representatives shall be apportioned among before the Natural Resources Committees subcommittee on the several States according to their respective numbers, water and power, in hearings on H.R. 3342, for the Aamodt counting the whole number of persons in each State, water rights settlement, September 9, 2009. The U.S. Senate excluding Indians not taxed. Vine DeLoria, Jr. and David passed water rights settlements for tribes in three states in E. Wilkins, Tribes, Treaties and Constitutional Tribulations, late 2010, providing federal funds toward the settlement for (University of Texas Press, Austin 1999) , pp. 141-149. dispossession of pueblo lands under the Pueblo Lands Act. 7 The voting privileges section of the The federal bill provided $66 million in immediate funding state constitution was written intentionally to be and authorized $58 million for future spending, subject to unamendablerequiring at least three-fourths of the appropriations for the Taos water settlement, some $81.8 electors voting in the whole state and at least two-thirds million for the Aamodt settlement. See www.Indianz.com of those voting in each county of the state for amendment. 16 Joe S. Sando, Popay: Leader of the First American See New Mexico Government, Paul L. Hain, F. Chris Garcia, Revolution, Clear Light Publishing, Santa Fe (2005) pp. 219and Gilbert K. St. Clair, editors (UNM Press, Albuquerque 225. 1994), Constitutional Politics in New Mexico 1910-1976, 17 Id. chapter by Dorothy I. Cline. 18 The arrest of 47 religious leaders, theft of their th 8 See N.M. v. Aamodt, 537 F.2d 1102 (10 Cir. 1975) religious articles, herbs and medicine and hanging of four (detailing the history of Indian lands legislation including in front of their own people as ordered by Governor Juan confirmation by Congress in 1858, 11 Stat. 374). de Trevino (1675-1677) was only the last straw. One man

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.