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«Item type text; Electronic Dissertation Authors DeJong, David Henry Publisher The University of Arizona. Rights Copyright © is held by the author. ...»

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While beneficial to states such as Idaho, whose population doubled in the 1890s largely because of the act, the law had limited impacts and was conspicuous in that it did not apply to territories such as Arizona and New Mexico.9 Westerners, including Nevada’s Francis Newlands, continued to advocate federal support for reclamation projects, even as the federal government remained divided as to the appropriate role of government. The U.S. Geological Survey, then surveying potential western water development, advocated “single use resources [with] many potential uses,” including reclamation. The older, more established Army Corps of Engineers, on the other hand, “placed upon private landowners” responsibility for reclamation, holding a more conservative opinion of water use and development.10 By the last decade of the nineteenth century the federal government increasingly hinted at federal control of water independent of state laws. The Corps of Engineers, for instance, asserted control over the construction of dams on all navigable rivers. In 1898 Congress asserted federal authority over all water passing through national forest reserves if it could be used for “domestic, mining, milling or irrigation” purposes. The following year the United States Supreme Court opined in US vs. Rio Grande Dam and Irrigation

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Company that if any part of a river—including its tributaries—were used for transportation, it would fall under federal auspices.11 As importantly, in the Desert Land Act Congress subjected to prior appropriation all public land titles to “surplus waters over and above such actual use,” together with all water from lakes, rivers and other bodies of water if used for irrigation purposes. States might distribute water, but all federal rights were retained.12 By the turn of the twentieth century, Congress was primed for a national reclamation policy that would further land development. With the ascendancy of Theodore Roosevelt to the Presidency, a progressive leader occupied the White House. Despite tepid eastern support, backing for reclamation seemed assured. On June 30, 1902, Congress enacted the National Reclamation Act.

The passage of the Reclamation Act was one of the most decisive laws in the history of the West, initiating an era of federally subsidized reclamation projects. While intending to complement land laws and foster yeoman settlement of the West, powerful and politically well-heeled speculators, government bureaucrats and Congressional allies asserted control over the region’s water resources and manipulated the act to their benefit.13 In the early years of the twentieth century, western water advocates strengthened their position by forming political alliances to further determine and manipulate water policy in the West. This alliance consisted of key congressional committees and legislators, executive agencies (i.e., the Bureau of Reclamation and the

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Army Corps of Engineers) and special interest groups (water users in the West). This “iron triangle” influenced public policy to its own advantage and, rather than benefiting yeoman farmers, the Reclamation Act became part of an overall “incongruous land system” in the West by encouraging speculation.14 While profoundly affecting the social culture of the West and its development, the Reclamation Act did not fulfill its rhetorical purpose of fostering the family farm in the West.15 For American Indian farmers, the federal goal of yeoman farmers was rhetorical. Even tribal nations with a history of farming, such as the Pima, this goal was more rhetorical than reality.

Unlike federal land and resource laws, the administration and regulation of Indian policy has always been a federal responsibility since the United States Constitution granted Congress sole authority over Indian affairs. Article 1, Section 8 (Commerce Clause) of the United States Constitution, specifically conferred on Congress the power to regulate commerce “with the Indian tribes.” Under the Articles of Confederation (1781-1789), the central government asserted limited control over Indian affairs, although it did define the limits of Indian Country and establish a national pledge of maintaining “the utmost good faith” in dealing with Indian tribes.16 These regulations were deemed essential for securing the peace and friendship of the tribes, with federal policies generally centered on clearing the land of Indian title.

Following the implementation of the U.S. Constitution in 1789, President George Washington encouraged Congress to enact legislation authorizing the United States to

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lawfully interact with tribal nations. Congress followed Washington’s lead and enacted the first in a series of trade and intercourse acts in 1790, by which the United States asserted the authority to regulate Indian trade. In 1824 John C. Calhoun unofficially established a bureau of Indians affairs within the War Department.17 With the territorial expansion of the United States, the trade and intercourse act was amended to reflect the geographical growth of the nation. In 1851 and, again, in 1856 an amended act extended federal authority over the Pima villages.18 As the commercial interests of the United States expanded west via the Santa Fe, Southern and Oregon trails, trade increased, with tens of thousands of emigrants crossing the territory of the western tribes. Protection of U.S. citizens traveling on or engaging in commerce along the trails became paramount, leading to a series of treaties with the western tribes beginning in 1846. With thousands of emigrants arriving in the California gold fields in 1849, local tribes found themselves subjected to policies of extermination.

Further hostilities erupted on the plains and interior deserts, with local calls for extermination forcing Congress to establish the reservation system in 1851. The new federal policy was designed to reduce Indian land holdings by transforming the Indians into passive yeoman agriculturalists.19 After the Civil War, Congress initiated an intensive effort at assimilating American Indians. As part of this plan, President Ulysses S. Grant appointed a group of eastern philanthropists to the newly created Board of Indian Commissioners and charged

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them with guiding and advising the President on federal Indian relations. The policy advocated by the Board was to bring about the “humanization, civilization and Christianization of the Indians.” To accomplish this required a bold social plan designed to change the Indians’ property, legal, social and political rights.

This era of allotment and assimilation represented an extraordinary attack on tribal nations and Indian people, with the federal courts supporting such policies. In Lonewolf v. Hitchcock (1903), the court upheld the authority of the federal government to act without tribal consent. Despite this ruling, the U.S. Supreme Court recognized tribal resource rights in United States v. Winans (1904) and Winters v. United States (1908), the latter of which upheld tribal rights to water resources.

Between the 1860s and the 1920s, federal land and resource policies in the West tended towards economic liberalism. Federal laws established an incongruous set of land and resource policies that might be characterized as more of a patchwork of laws that frequently conflicted and undermined each other. These policies, while not surprising given the social and political mindset of the nation at the time, were a complicated mesh that grew more incongruous with the passage of a Western water policy. These policies had a profound and lasting impact on American Indians, as great demands were placed on tribal nations’ lands and resources. Under intense pressure by land-hungry settlers and government agents to part with their land and resources, tribal nations faced a juggernaut of continental imperialism. Among the impacts on tribal nations were land displacement, water deprivation, resource dispossession, cultural loss and economic privation. This

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European contact, was systematically disenfranchised by a myriad of political interests, federal and territorial policies, and off-reservation lobbying efforts that resulted in the near complete dispossession by non-Indians of Pima water and water rights.

When combined with federal Indian policies designed to displace American Indians from their remaining lands and assimilate them into American society, federal land and resource policies had an especially detrimental impact. Reservations were allotted, with many thrown open to non-Indian settlement, resulting in the loss of more than 86,000,000 tribal acres.20 As the West was settled and its resources exploited, economic liberalism despoiled the Indian land base and pushed American Indians to the periphery of the national economy.21 Federal policymakers, having “little real interest in the welfare of Native Americans,” manipulated a dynamic federal resource policy for the purpose of controlling and directing the land and its resources for their own or their constituents’ benefit.22 Rather than promoting agriculture in the West, federal Indian policies—combined with federal land policies—actually diminished Indian agriculture.

Economic and social policies designed to foster the yeoman farm instead fractionated the land and isolated American Indians on scattered lands across the West, making economic enhancement of tribal lands difficult to impossible. These policies are best summed up as raising a metaphorical sword above the heads of non-Indian water users.

This metaphor comes from Greek mythology, which relates the story of Damocles, an attendant in the royal court of Dionysius, who lived in Syracuse on the

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island of Sicily. Damocles dreamed of the riches and pleasures of Dionysius. One day, the Greek ruler thought to teach Damocles a lesson by hosting a banquet and inviting the attendant to sit in the place of honor. Just as he began to enjoy himself at the banquet table, Damocles was horrified to discover a sword hanging over his head, suspended by a single strand of horsehair. What if the hair should break and the sword fall? The smile disappeared from Damocles’ face and he grew pale. His hands trembled and he no longer took delight at the seat of honor. He ran from the palace. “What is the matter?” Dionysius demanded. “That sword! That sword!” cried Damocles. “Yes,” replied Dionysius. “I know there is a sword above your head, and that it may fall at any moment. But I have a sword over my head all the time. I live every moment in dread lest something should befall me.”23 The Sword of Damocles has come to represent an ever-present peril should a legal right be exercised by the party that holds a prior right. In the present case, Pima rights to the waters of the Gila River and its tributaries were both legitimate and a priority that superseded the settlers who made use of the water. In so doing, a metaphorical sword was elevated above these users and represented a distal threat should the Pima exercise their prior rights.

The sword, therefore, serves as an apt metaphor for the water rights struggle of the Pima.24 While non-Indians made use of the water, the Pima maintained a moral and legal right to it. In time, the United States Government, the State of Arizona and thirtytwo water entities, cities and corporations, including the City of Phoenix, the Salt River

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Project and a score of irrigation districts, recognized that should the Pima gain a definitive legal victory in the courts it might result in the sword descending with severe ramifications. With strong federal encouragement, the State of Arizona and its political subdivisions were encouraged to deal with the metaphorical sword. The result was an historic water settlement act for the Gila River Indian Community in 2004.

Surprisingly little has been written by scholars on the Gila River Pima and their water and agricultural history, although Hale erroneously included the Pima as a tribal nation without a single book written on them.25 There have been no scholarly quantitative studies published related to historic Pima agriculture, water use and water rights.

Notwithstanding a dearth of quantitative scholarship, there is a good body of useful qualitative literature that deals with aspects of Pima water history. In recent years, a number of good analytical studies of Indian water rights have included chapters, or portions thereof, on the rights of the Gila River Pima. These general qualitative works (Colby, et. al 2005; Colby, et. al. 2006; McCool 1994; McCool 2002; McGuire et. al.

1993) provide broad overarching analyses of Indian water rights but contribute little toward understanding the effects of water deprivation on the Pima or its impact on the Pima economy. Several scholarly works related to the Central Arizona Project (Johnson 1977; August 1996) have a direct bearing on the Gila River Indian Community’s recent water claims and efforts to expand agricultural production.

A number of good scholarly qualitative works cover the broader water rights dispute in the Western U.S. (Dunbar 1983; Foreman 1981; Fradkin 1981; Mann 1963;

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Reisner 1986; Stegner 1992; Wilkinson 1992; Worster 1985), but each of these considers this struggle in the West and largely absorbs Indian water rights into the larger national picture. Some recent scholarly work on federal land and resource policies has been beneficial in understanding the broader scope of Pima agriculture, water use and water rights (Klyza 1996; Platt 1996; Pisani 1992; Pisani 1996), although none deals directly with Pima issues with the exception of Pisani (2002), who devotes a portion of one chapter to Pima water struggles at the turn of the twentieth century. Klyza, Platt and Carlson (1981) provide a useful background of economic theories governing federal land and resource policies. Smith (1981) and Smith and Dudley (1989) provide an excellent analysis of the marriage of law and public policy in south central Arizona for the decades sandwiched around the turn of the twentieth century.

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