Defending Indigenous Water Rights
with the Laws of a Dominant Culture
The Case of the United States
DAVID H. GETCHES
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 of the so-called Indian water rights in the United States remains an imperfect model.
The apparently generous recognition of significant legal rights for indigenous peoples to water for their lands and families has produced more paper documenting legal rights than usable water for indigenous peoples and lands. A fundamental problem is that legal rights were announced a century ago, but after that the national government and the states, whose laws dominate water allocation, promoted non-Indian use of water. Nowadays, if local Indian kinship groups attempt to use the large quantities of water to which the law entitles them, they face formidable economic and political barriers because non-Indians are already using most of the water.
The principles of Indian water rights—as developed in the legal system of the Unites States—were created to advance national policies, not simply to achieve justice for indigenous peoples or ensure the survival of their cultures. As is often the case, the realization of the law's beneficence in the future will depend on the dominant culture's willingness to make readjustments that affect negatively the nonindigenous majority of water users. To many, Indian water rights seem anomalous (see chapter 5 for a parallel situation in the Andes).