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Wicazo Sa Review 22.2 (2007) 57-92

"The Sword of Damocles?"
The Gila River Indian Community Water Settlement Act of 2004 in Historical Perspective
David H. DeJong

Greek mythology tells the story of Damocles, an attendant in the royal court of Dionysius who lived in Syracuse on the 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 was beginning to enjoy himself, Damocles was horrified to discover a sword hanging over his head, suspended by a single strand of horsehair. What if the hair should break? The smile disappeared from his face and he grew pale. His hands trembled and he no longer took delight in the music. He ran from the palace. "What is the matter?" Dionysius demanded. "That sword! That sword!" cried Damocles. "Yes," said 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."

James Baldwin, Favorite Tales of Long Ago
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In 1982, Pima attorney and tribal member Rod Lewis remarked, "The only viable way of [settling Pima water rights] is through litigation. Once . . . there is a possibility of people, industry, towns, and counties losing water . . . then perhaps that is the only way in which people can come to the negotiating table."1 A year earlier one writer characterized Indian water rights as "a public policy and administrative mess." A well-known water attorney remarked that when it came to water rights disputes, "it has frequently been nip and tuck whether the difference of opinion would be solved by briefs or bullets."2 In 1973, the National Water Commission warned that "future utilization of early Indian [water] rights on fully appropriated streams will divest prior users . . . and will impose economic hardship."3 Phoenix (Arizona) City Water Manager Tom Buschatzke stated in 2004 that Indian priority water claims were "a threat to our water supply." As these statements demonstrate, Indian water rights pose a Damoclean risk to state interests.4

Although water disputes in the West have involved many constituencies—agriculturalists, urban dwellers, environmentalists, recreationists, and Indian tribes—the most contentious parties historically have been tribal and nontribal agricultural interests. Although both groups recognize that water in the West is essential for economic and cultural survival, it is especially so for American Indians, whose way of life and identity are tied to the land. The reason for this dichotomy is that tribal and nontribal rights to use of the water are based on separate and competing legal doctrines. Because of the historic federal–Indian political relationship, tribal water rights are predicated on federal law and the concept of reserved rights. This legal doctrine states that Indian tribes and/or the federal government in its fiduciary capacity impliedly and implicitly reserved sufficient water to make reservations a permanent homeland. These reserved rights to water are not only based on the past and present needs of the tribes but also extend into the future, meaning as tribes develop their reservations into economically and socially viable homelands, their future water needs are protected.

Non-Indians in the West, on the other hand, are governed by a different set of laws based on state statutes. These laws reward senior water users with rights that supersede junior users if the former make lawful, beneficial uses of the water. In other words, "first in time means first in line." The key to prior appropriation is that the water must be beneficially and continuously used, or the right is forfeited after five consecutive years of nonuse. Consequently, Indian water rights—based on federal law—have not only pitted powerful state interests against tribes and the federal government but, because of their future-oriented...


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