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"Getches, David H"
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Out of the mainstream : water rights, politics and identity
\"Water is not only a source of life and culture. It is also a source of power, conflicting interests and identity battles. Rights to materially access, culturally organize and politically control water resources are poorly understood by mainstream scientific approaches and hardly addressed by current normative frameworks. These issues become even more challenging when law and policy-makers and dominant power groups try to grasp, contain and handle them in multicultural societies. The struggles over the uses, meanings and appropriation of water are especially well-illustrated in Andean communities and local water systems of Peru, Chile, Ecuador, and Bolivia, as well as in Native American communities in south-western USA. The problem is that throughout history, these nation-states have attempted to 'civilize' and bring into the mainstream the different cultures and peoples within their borders instead of understanding 'context' and harnessing the strengths and potentials of diversity. This book examines the multi-scale struggles for cultural justice and socio-economic re-distribution that arise as Latin American communities and user federations seek access to water resources and decision-making power regarding their control and management. It is set in the dynamic context of unequal, globalizing power relations, politics of scale and identity, environmental encroachment and the increasing presence of extractive industries that are creating additional pressures on local livelihoods. While much of the focus of the book is on the Andean Region, a number of comparative chapters are also included. These address issues such as water rights and defence strategies in neighbouring countries and those of Native American people in the southern USA, as well as state reform and multi-culturalism across Latin and Native America and the use of international standards in struggles for indigenous water rights. This book shows that, against all odds, people are actively contesting neoliberal globalization and water power plays. In doing so, they construct new, hybrid water rights systems, livelihoods, cultures and hydro-political networks, and dynamically challenge the mainstream powers and politics.\"--Publisher's description.
Book
Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law
For a century and a half, the Supreme Court was faithful to a set of foundation principles respecting Indian tribal sovereignty. Though the United States can abrogate tribal powers and rights, it can only do so by legislation. Accordingly, the Court has protected reservations as enclaves for Indian self-government, preventing states from enforcing their laws and taxes, and holding that even federal laws could not be applied to Indians without congressional permission. Recently, however, the Court has assumed the job it formerly conceded to Congress, considering and weighing cases to reach results comporting with the Justices' subjective notions of what the Indian jurisdictional situation ought to be. This new subjectivist approach, the author argues, severs tribal sovereignty from its historical moorings, leaving lower courts without principled, comprehensible guidance. Tribes hold distinct legal rights in treaties and other laws. They strive to perpetuate their cultures and land base through governance. But now they are left to the vicissitudes of Court majorities that depend on the perceptions of culturally alien Justices in individual cases. The author also assesses prospects for returning to foundation principles. Although most of the current Court accepts subjectivism, he concludes that a return is possible if one or more Justices assumes intellectual leadership in Indian law cases.
Journal Article
The Legacy of the Bush II Administration in Natural Resources: A Work in Progress
Critics of the George W. Bush Administration's record in natural resource management and environmental protection point to blatant violations of environmental and public land laws and neglect of legislative mandates. The Administration champions itself as working to streamline regulations, reduce red tape, and ensure that environmental reviews are conducted efficiently. An assessment of the environmental policy legacies left by preceding presidents is presented. The current Bush Administration does have an environmental agenda, the full implementation of which would afford it an enduring legacy.
Journal Article
Colorado Water Law for Non-Lawyers
Why do people fight about water rights? Who decides how much water can be used by a city or irrigator? Does the federal government get involved in state water issues? Why is water in Colorado so controversial? These questions, and others like them, are addressed inColorado Water Law for Non-Lawyers. This concise and understandable treatment of the complex web of Colorado water laws is the first book of its kind. Legal issues related to water rights in Colorado first surfaced during the gold mining era in the 1800s and continue to be contentious today with the explosive population growth of the twenty-first century. Drawing on geography and history, the authors explore the flashpoints and water wars that have shaped Colorado's present system of water allocation and management. They also address how this system, developed in the mid-1800s, is standing up to current tests-including the drought of the past decade and the competing interests for scarce water resources-and predict how it will stand up to new demands in the future.
This book will appeal to at students, non-lawyers involved with water issues, and general readers interested in Colorado's complex water rights law.
eBook
CHANGING THE RIVER'S COURSE: WESTERN WATER POLICY REFORM
Throughout the history of the West, water law and policy have had a profound influence on the environment of the region. Power production, agricultural irrigation, and economic eocpansion of the Columbia River Basin have depended upon the institutions of water policy, including the prior appropriation doctrine and major water development in the form of large dams and diversions. This has rendered the river incapable of sustaining the rich salmon populations that once were the mainstay of Northwest Indian culture and supported a major fishing industry. Professor Getches concludes that traditional instruments of water policy in the West—the beneficial use requirement of the prior appropriation doctrine, the water projects that harnessed the river in the first place, and the historically unfulfilled ideal of watershed management—can be reformed and redirected to address many of the problems the river has suffered.
Journal Article
The Unsettling of the West: How Indians Got the Best Water Rights
A single, century-old court decision affects the water rights of nearly everyone in the West. The Supreme Court's two-page opinion in 'Winters v. United States' sent out shock waves that reverberate today. By formulating the doctrine of reserved water rights, the Court put Indian tribes first in line for water in an arid region. Priority is everything where water law typically dictates that the senior water rights holder is satisfied first, even if it means taking all the water and leaving none for anyone else. Review: 'INDIAN RESERVED WATER RIGHTS: THE WINTERS DOCTRINE IN ITS SOCIAL AND LEGAL CONTEXT', 1880s-1930S. By John Shurts. Norman: University of Oklahoma Press. 2000. Pp. xv, 333. $39.95.
Book Review
Searching out the headwaters : change and rediscovery in western water policy
To the uninitiated, water policy seems a complicated, hypertechnical, and incomprehensible subject: a tangle of engineering jargon and legalese surrounding a complex, delicate, and interrelated structure. Decisions concerning the public's waters involve scant public participation, and in such a context, reform seems risky at best.Searching Out the Headwaters addresses that precarious situation by providing a thorough and straightforward analysis of western water use and the outmoded rules that govern it. The authors begin by tracing the history and evolution of the uses of western water. They describe the demographic and economic changes now occurring in the region, and identify the many communities of interest involved in all water-use issues. After an examination of the central precepts of current water policy, along with their original rationale and subsequent evolution, they consider the reform movement that has recently begun to emerge. In the end, the authors articulate the foundations for a water policy that can meet the needs of the new West and discuss the various means for effectively implementing such a policy, including market economics, regulation, the broad-based use of scientific knowledge, and open and full public participation.
eBook
Defending Indigenous Water Rights with the Laws of a Dominant Culture
The United States is one of the few nations of the world to provide distinctive and apparently robust legal recognition to the water rights of its indigenous peoples. On rivers in the arid, western United States where most ethnic groups reside, indigenous peoples have rights to water that are superior to those of their nonindigenous neighbors. If dominant societies do not extend legal dignity to the water rights of indigenous peoples, this can impede or doom their struggle to hold and use their territories. The integrity of these territories is essential to indigenous cultures and livelihood strategies. Yet the protection
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