Water Rites: A Comparative Study of the Dispossession of American Indians and Palestinians from Natural Resources

Georgetown International Environmental Law Review, Winter 2004 by Jabaily, Annalisa

There is nothing softer and weaker than water,

And yet there is nothing better for attacking hard and strong things.

For this reason there is no substitute for it.

- Lao-Tzu1

I. INTRODUCTION

This paper sets out to explore a contradiction in the natural resource regulation polices of the United States and Israel. The contradiction is grounded in the persistent fact that American Indians and Palestinians, though ideologically and physically removed from the land and water, cannot be reduced beyond their basic human need for water. Both groups are disproportionately thirsty when compared to dominant populations. But for an Indian or Palestinian to make an inevitable claim for water, she must make a claim of existence against the very regime that relies on the fantasy of her non-existence.

I will explore this contradiction by making visible the non-necessary but current connection between State dispossession ideology and State natural resource regulation. U.S. and Israeli dispossession ideologies rely heavily on concepts of settlement, development, and progress. The land to be settled was presumed empty or, when inhabitants were recognized, "wandered over" by backward savages. On the flip side, natural resource regulation was either in the form of halting settlement (as in the U.S. case) or in the form of channeling resources in order to increase development (as in the Israeli case). In both cases, the resource regulation plan was defined by the settlement presumptions. By drawing attention to American Indian and Palestinian methods of resource regulation, their subsequent dispossession, and their current subordination, I hope to put pressure on the fantasy in U.S. and Israeli discourses that these groups do not exist or have never regulated land or water.

Part II will examine strands of natural resource regulation by Palestinians and American Indians that pre-dated the current state. I am not interested in glorifying, sentimentalizing, or homogenizing these earlier regimes. Rather, I will examine certain strands of regulation simply to make the case that they existed, that the land was not empty, and that the water was not unmanaged.

In Part III, I will look at the U.S. and Israeli governments' policies of land and water dispossession. Specifically, this part will compare the U.S. settlement/ preservation discourse and the Israeli settlement/development discourse. I argue that although both States discursively presumed the settler to be the "subject" and land as the "object" of their projects, each State understood the land in different ways, which led to different resource regulation strategies. The U.S. discourse characterized land as wild, pristine, and virgin, which paved the way for a preservationist movement that demanded the government "set aside" some land as public parks. In contrast, the Israeli discourse portrayed land as neglected, wounded, and violated, which instead inspired a stronger development movement that would nurture the land out of its desert existence. However, despite the differences in land characterization, I argue that for Palestinians and American Indians, the settlement/preservation and settlement/development dichotomies were actually complementary sides of the same dispossessive strategy.

Finally, in Part IV, I will take stock of the current distributive inequalities of land and clean water in the United States and lands controlled by Israel. I argue that American Indians' and Palestinians' claims to clean water are quite limited because they require recognition by the very regime that seeks to erase them. Moreover, even when Palestinians and American Indians are recognized, they continue to receive disproportionate allocations of dirty water or thirst.

II. EARLY RITES: STRANDS OF REGULATORY METHODS THAT PRECEDED ISRAEL AND THE UNITED STATES

This part will introduce some examples of land and water regulation practiced by Palestinians and American Indians. Because it is impossible to articulate methods common throughout groups and over time, I have taken a very narrow focus. First, I look at Palestinian land and water regulation in Jabal Nablus, which is now located in the Occupied Territories. From the snapshot of that city in the mid-nineteenth century, I turn to several sources of land and water regulation that were available to govern the city and its surrounding villages, including the Ottoman Code, the shari'a, and the interpretations of jurists. In the second half of this section, I look at some methods of land and water regulation practiced by Pueblo, Hohokam, and Hopi tribes, as well as some American Indian techniques of ecological information gathering. Again, I am not presenting these examples to say that their ways were inherently more effective or even more equitable. Rather, I put these examples on the table simply to counter presumptions in the U.S. and Israeli discourses that rely on the denial of these groups' existence and methods of regulation of land and water.

A. SOME EXAMPLES OF RESOURCE REGULATION UNDER THE OTTOMAN EMPIRE