DU Water Law Review Spring 2015 Symposium

“THE LAW WITHOUT SCHOLARSHIP WOULD BUILD A BOAT TO FLOAT A WATERLESS SEA”

 Denver, Colorado        April 10, 2015

Access to Justice & Tribal Water Rights

Professor Lucy Marsh, a professor dedicated to pro bono work for elderly and low-income tribal clients at the University of Denver Sturm College of Law, was the moderator for the opening panel at the University of Denver Water Law Review’s eighth Annual Symposium. Professor Marsh introduced three wonderful speakers: Retired Justice Patricio Serna, Chairman of the U.S. Indian Law and Order Commission Troy Eid, and Professor Sarah Krakoff. All three panelists spoke on a topic that is dear to Professor Marsh’s and Justice Gregory Hobbs’ hearts – the rights of Native Americans and Justice Hobbs’ enduring contributions to those rights.

Retired Justice Serna is an honored Justice of the New Mexico Supreme Court, where he served for fifteen years. He was a District Court Judge eleven years before that. Justice Serna is still active as Emeritus on the Board of Directors for the National Consortium on Racial and Ethnic Fairness in the Courts. Justice Serna began the panel speaking on how important the past is to Navajo people and how he was awarded by a group of Navajo with his own bolo tie. The bolo tie is a trademark of Justice Hobbs, who is rarely seen without one. According to Justice Serna, the bolo tie represents for Navajo people their philosophy that people are to be “in harmony with nature.”

Justice Serna spoke of the New Mexico tribal state judicial consortium. He explained that the consortium is composed of individuals who are appointed by the New Mexico Supreme Court to represent the twenty-three tribes and pueblos that are recognized as residing in New Mexico. Justice Serna spoke on how the consortium was put into place to facilitate communications between the courts and the tribes. The consortium succeeded by creating tribal courts with their own tribal judges. Further, he explained that the tribal judges are given authority by the state to make rulings, and that these courts are unique in that each tribal judge sits in tandem with a state judge. Justice Serna then spoke of his personal experiences with the tribal courts, his appreciation for the tribal court judges, and the effective work he has done to improve the livelihood of tribal members.

Next, Justice Serna shared an Indian water law case that has been ongoing since 1966, New Mexico ex rel. State Engineer v. Aamodt. The case was filed in 1966 in the United States District Court. It is the longest running water law dispute in New Mexico. The case is adjudicating the water rights in the Rio Pojoaque System of both Pueblo and non-Pueblo peoples of New Mexico. The Pueblo includes the Nambe, Pojoaque, Tesuque, and San Ildefonso. Further proceedings in the case were stayed in August of 2000. The parties still have not reached a settlement agreement and the case remains open today. Justice Serna concluded his presentation by reading an original poem by Justice Hobbs, “An Oath as Good as Fry Bread.”

Troy Eid presented next. Eid is a principle shareholder in the Denver office of the law firm of Greenberg Traurig. He also teaches as an adjunct professor at both the University of Denver Sturm College of Law and the University of Colorado School of Law. He has worked as a U.S. Attorney for the District of Colorado and is recognized for his passion for improving the lives of Native Americans. Eid gave a glimpse into Justice Hobbs’ life before being a Colorado Supreme Court Justice. Justice Hobbs was once a boy scout. He excelled at that, as he has many things in his life, exemplified by his being awarded the Eagle Badge. Justice Hobbs also served in the Peace Corps with his wife Bobbie.

Eid also shared that Justice Hobbs revolutionized water law here in the West through his work in the judiciary. The role of reclamation, as a principle of water management, has changed over the years. During its change, Justice Hobbs has helped people understand, steering the wave by issuing educational decisions on water law throughout his career as a justice. Justice Hobbs’ reputation only grew when he became the focal point in a 2009 primary. In that primary, Congressman McGinnis was accused 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 Justice Hobbs served the Native American community. Justice Hobbs, together with Mike Welsh, obtained a two million dollar grant to set up a workshop for Navajo teachers on tribal sovereignty. The goal of the program was to equip the Navajo teachers with the skills to develop a curriculum and to share their own history with others. Eid concluded his speech by commending Justice Hobbs for his involvement in educating the public of the importance behind Governor Hickenlooper’s formal apology to the Cheyenne and Arapahoe tribes for the Sand Creek Massacre. The massacre occurred on November 29, 1864, when Colorado Territorial militia slaughtered between two hundred and four hundred tribal people. Those murdered were mostly women, children, and elders. It was not until December 3, 2014, that Governor Hickenlooper apologized to the descendants of these tribes, the first formal apology of the massacre from a representative of the State. Justice Hobbs played a large role in making the apology happen. Justice Hobbs gave a speech at the State Capitol that day, and Eid quoted one of the Native American leaders who was present for the ceremony. That leader said of Justice Hobbs, “That judge sure told the truth.”

The panel concluded with a presentation by Professor Sarah Krakoff of the University of Colorado School of Law. She is well renowned in the areas of American Indian law and natural resources law. Krakoff started the American Indian Law Clinic at University of Colorado School of Law, and before that she lived on the Navajo Nation for three years while working for DNA People’s Legal Services. Today, Krakoff regularly takes students to work with traditional farmers in the San Luis Valley. Krakoff and the law students who accompany her work pro bono for low-income farmers engaged in traditional irrigation techniques called “acequias.” Connecting this work to Justice Hobbs’ ultimate respect for indigenous traditions, even when they are 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 Justice Hobbs: access to justice, scholarship and scholarly writing, and western water law. Krakoff commended Justice Hobbs for all the work and contributions he has made, as an attorney and as a judge, in the realm of water law. Krakoff explained how the Acequia Project benefits the land and farmers of Costilla County, Colorado. The farmers in Costilla County are descendants of original Spaniard settlers.

Next, Krakoff provided some light on why her work is termed the Acequia Project. She explained that acequias are used in irrigation. The water is diverted in a canal from the main source of water, with smaller ditches running off of the canal to provide water to the fields that if flows by. When water is scarce, which is common, determining how to prioritize the water from the acequia for irrigating is handled by each family. This method of irrigating, and equitable division of water distribution, is counter to Colorado’s current water law that recognizes first in time, first in right. Colorado has chosen to recognize acequias as a form of irrigation and assisted these farmers by passing Colorado Revised Statute section 7-42-101.5. This legislation gives the farmers in the valley the right of first refusal, a right given to owners of conventional ditches.

After providing all this background, Krakoff spoke of the other parts of the trifecta. A couple of the students on the Acequia Project have done extensive research and drafted an acequia handbook. There is also a scholarship in place for those participating in the program. The majority of the work done has been by the students of the project, along with collaborators.

Krakoff ended her presentation of the Hobbsian Trifecta with a fourth commitment of Justice Hobbs, one that all of the speakers recognized—his poetry. Krakoff delivered a brief five-line poem, known as a cinquain, she wrote herself in honor of Justice Hobbs. The poem ended by honoring Justice Hobbs as “one of Colorado’s sages.”

The final part of the presentation was a question and answer session. Professor Marsh asked Justice Hobbs to explain the case of Archuleta v. Gomez, a case the Colorado Supreme Court decided in 2012. Having written the opinion, Justice Hobbs explained how the Court determined that a beneficially used water right was subject to adverse possession.