Rivers, Rights, and Riveting Historiography

Rivers are ideal subjects for environmental historians not only because water access is a pressing issue today, but also as they are sites of complex human-nature interactions. Human transformations of river systems have not always been detrimental, but generally they have had major negative consequences, emblematic of the Anthropocene. Early historians of river systems (influenced by the contemporary environmentalist movement), like Donald Worster, were interested in how they were exploited for human use, believing that the stories of rivers were those of declension. Eventually, the declension focus gave way to a hybrid understanding of nature. Instead of cleaving the human and non-human apart: historians like Richard White have argued in favor viewing changes to “nature” as additions to a “second nature” not an aberration of “pristine nature.”

It follows that if humans have transformed rivers and rivers have transformed human life, river systems have also had profound effects on nation-states, power relations, and urban development. Rivers, unpredictable and uncontainable are useful environmental historical subjects because they eschew deterministic argumentation. Historians have pushed the boundaries of environmental historical study by challenging typical periodization, scales, and scopes to study rivers. They have utilized the methodologies of historians of politics, science, law and culture to evoke a similar underlying message: societies have not just changed rivers, rivers have transformed societies and altered the course of history. The rights to these rivers have also shifted in American history, and the process of providing these rights has not only left the environment in danger, but it has also created great inequity among Americans and Native Americans. So if we really want a “hybrid” understanding of nature, it’s critical to bring together not just the environmental and political shifts that create a second nature, but also the legal processes as well.

Riparian Imperium

Donald Worster wrote one of the first major river studies that set the stage for the generations of work that came after it. In Rivers of Empire, Worster details the tragedy that accompanied the misuse of technology in the West.[1] Worster examines the arid and semi-arid west from the mid-nineteenth century onwards. During this period Americans constructed what he calls the “greatest hydraulic society ever built in history.”[2] This society was “coercive, monolithic, and hierarchical,” controlled by “a power elite based on the ownership of capital and expertise” leading to a “managerial relationship with nature.”[3] Worster rejects the idyllic vision of the American West as a place of “untrammeled freedom,” instead it was a “land of authority and restraint, of class and exploitation, and…imperial power.”[4] The irrigation ditch provides key “clues to the to the meaning of freedom and autonomy, of democratic self-determination and openness, in the historical as opposed to the mythical West.”[5] The irrigation ditch gave profit and freedom to certain elites, but Worster argues that it led to unfreedom for nature itself. Rivers can no longer be “free-flowing entities with their own integrity and order.”[6] Humans in turn have given up more autonomy than they have gained by seeking to control the river.

Worster centers on the emergence of two main groups, the “power elite,” which colluded to produce this coercive West: agribusiness and the federal government (specifically the Bureau of Reclamation).[7] Worster links the efforts to control water to the concentration of political power, developments in the agricultural labor system, the lives of Native Americans, as well as the rise of human engineered environmental change. Worster argues Americans in the nineteenth century built a society in the West where nature had no intrinsic value, it only existed for exploitation and domination. He calls this creation a “techno-economic order,” one which was imposed “for the purpose of mastering a difficult environment.”[8][9]

In this new order, humans did not just change the environment. As humans began to change the rivers in order to suit their needs, they inevitably began to “bear the mark of the desert,” in that power came to be concentrated in the hands of the few, and eventually the “hydraulic society” of Karl Wittfogel transformed into an undemocratic “hydraulic empire.”[10] Worster builds on Wittfogel and Marx to argue that there were stages of agricultural and irrigation development: the local subsistence mode, agrarian state mode, and the capitalist state mode. In the final mode, it was not just capital that gained power, but the state as well – without the state, there would be no guarantee that the technologies intended to control and profit from rivers ran efficiently. Unlike in the local subsistence mode where water was worshipped as divine, or in the agrarian state mode where people viewed water as an “awe-inspiring, animistic ally in a quest for political empire,” in the capitalist state water is only a commodity. It is this abstraction of water, and in turn the rivers that provided it, that catalyzed the Anthropocene’s worst consequences.

Worster introduces three stages of development in the West that led to water’s abstraction: incipience (1840-1890), florescence (1900-1940), and finally empire (1940 to the present). As a consequence of the development of the West’s rivers, the West became a major national and international economic force. Urban centers and agribusinesses grew exponentially. The Colorado River was “transmogrified into an industrial artifact” and became “a part of nature that had died and been reborn as money.”[11] The Reclamation Act of 1902 was central to the commodification of rivers. The architects of the Reclamation Service boasted the creation of a progressive agency that would bring democracy, freedom, and order to the West, but Worster reveals it as an “elite program” that was the product of an “imperialist, expansionary culture.”[12] Worster then navigates to California, which based its hydraulic society on migrant laborers and subsidized water. Eventually the Bureau of Reclamation hailed California as one of its main successes. Without the Central Valley Project, the imperial hopes of the Bureau’s architects would have been dashed. However, as Worster makes clear, the Bureau did not win control in California as a “social reformer,” it did not democratize California’s waters.[13] Instead the Bureau relied on relationships with the budding agricultural businesses in the state and worked in their service. Power and control concentrated in the Central Valley not as a result of one group alone, but because of a “convergence of instrumental forces.”[14] The farmers who began to accumulate great wealth and the federal government’s technicians who were virtually unstoppable were both instrumental in the concentration of power to the elites.

It is frustrating that Worster only focuses on irrigated agriculture while there were many other commercial activities dependent on water (logging, cattle grazing, oil drilling, mining, etc.). The fact that these industries only receive a passing glance creates narrower picture of the West’s “empire.” Worster’s narrative is also problematic as he decides that California could stand-in for the West as a whole, considering that California’s size, level of landowners, and mechanization made its’ agricultural state more of an exception than a rule for the West. Although Worster critiques America’s “monolithic” and “alienating” relationship with nature, he does contribute slightly to this perspective by framing the rest of the Western states as satellites to California. Worster is innovative in his examination of how state and capital worked together to transform rivers, ultimately concentrating power in the hands of an elite group. Worster historicizes Americans’ inexorable need for water, the growth of the federal government, the cementing of capitalist power in the West, and the origins of our current water and ecological crisis.

Natural and Mechanical Flows

Richard White in The Organic Machine analyzes how various humans thought about the Columbia River and the resources it offered; these differences impacted how the river was transformed over the years. He also examines why people over the years have exploited the river’s resources and the implications of the resulting struggles. This analysis, combined with an understanding of how the river changed on its own, White claims, are both required to solve the environmental problems of today. White challenged the then accepted methods of environmental history by arguing that the history of the Columbia River can only be told by including the interplay between human and natural histories. To do this, he structures his history around the categories of energy and work, both of which are qualities that rivers and people share. Technology and culture are essential to White’s work as well. Technology are the tools that people used to extract resources from and transform the river, the valley, and hinterland, while culture encompasses the attitudes, values, and aspirations of these people. The Columbia River was “an organic machine,” “an energy system which, although modified by human interventions, [maintained] its natural, ‘unmade’ qualities.”[15]

White examines how labor was organized in Native American and settler societies along the river. [16] While Native Americans viewed their relationship with the river as dependent on certain practices (for example, catching too many salmon would cause problems in the future), white settlers began to view the fish and other resources as commodities. It is important, as White points out, not to assume that there was an era “in which the planet was nurturing and humans simply accepting.”[17] Native Americans were not “simple fisherfolk” and made “no assumptions about the inevitability of the salmon’s return.”[18] The fact that their rituals all assumed that the salmon would not return, Native Americans were just as anxious of the river as white settlers. This anxiety contributed to their insistence on usufructary rights to fishing areas, meaning that the right to fish were conditional, so “the human and the natural were tightly linked, but one did not determine the other.”[19] Native Americans found ways to use and benefit from the river without conflicting over resources or territory. This all changed with white settlers who viewed the river as a market – with a variety of goods that could be bought and sold. White also argues that salmon were a part of the river’s energy system as they bring “energy garnered from outside the river back to the river.”[20] Humans diverted the energy from the salmon through the use of fish traps, canneries, henneries, and other technologies to use for their own benefit. The market perspective further encouraged this energy transfer.

White also examines these and other technologies that people have used to achieve “progress” with the river as a major contributor of resources.[21] He argues that these people appreciated both the natural and the mechanical in their era, which made their approach to the Columbia unique. White uses the writings of Ralph Waldo Emerson, who “simultaneously [rejoiced] in the ability of the machine to subjugate…nature and in the spiritual truth…that nature provided.”[22] When the dams endangered the salmon runs, resource managers created fish hatcheries which would hopefully “wed technology and biology, to merge factory-like production with natural reproduction.”[23] The hatcheries grew in number even though people had little to no knowledge of the life cycle of the salmon, and ultimately did more damage to the salmon than they actually benefitted. White calls this a “monstrous” transformation of the river. But Americans continued in their quest to reduce their labor by putting the river to work.

The damming of the river and the sale of the power through the Bonneville Power Administration (BPA) are a central feature of this book.[24] White uses Lewis Mumford’s writings to argue that contemporaries wanted the Columbia to represent the complete necessary unity of nature and machine. Mumford believed that the integration of these two components of the river could be balanced and ultimately bring the “earth as a whole up to the highest pitch of perfection and appropriate use.”[25] As Emerson believed, the “mechanical was not the antithesis of nature, but its realization in a new form.”[26] Finally, what has been most useful for me as a scholar is White’s examination of the impact that dams have had on fish, and argues that the predicament the salmon face reflects a similar unsuccessful relationship between humans and the Columbia River.[27] Even though salmon have become scarce, they still retain cultural power. As White points out, salmon now symbolizes “nature in the Pacific Northwest…they are [now] the tokens of a way of life.”[28] Anti-dam advocates in the 1940s had to prove in the face of a plethora of skeptics that new dams would actually harm salmon, but eventually they had to compromise with the increasing voices for development. Interestingly, just as Native Americans were anxious in the nineteenth century that the salmon would never return, in the twentieth century, “salmon inspire fear along the river.”[29] The BPA relied on the dams along the river and feared the success of costly salmon-protecting measures.

The Columbia has developed into an organic machine which “human beings manage without fully understanding what they have created;” disassembled and reassembled into usable parts, making natural indistinguishable from the mechanical. [30] As subjects of the Anthropocene, White believes we have to face how we have changed the Columbia and how it has housed the conflicts over our choices for the past two centuries. This is how to understand our relationship with nature, but also accept ourselves as a part of nature. This “hybrid” approach to environmental history has been revolutionary for the field, as it rejects the mutually exclusive categories of nature and culture. Dams were not “dominating” the Columbia, instead they contributed to, as William Cronon has suggested, a “second nature.” Nature is not a complete social construct and capital has not completely dominated this nature, instead there is an interrelationship that through historicization actually provides a clearer understanding of how and why we have arrived at the Anthropocene, and what to expect in the future.

The Rights to Water

Water is essential to all societies as the foundation to all life on earth; today, water enables and encourages development in irrigation and hydropower. However, the allocation of who owns how much water and from which river has been a difficult question in the history of American law – especially when the issue of Native American water rights is added to the question. Water development permitted the western United States to develop spectacularly over the past century. Nevertheless, Native Americans and their reservations have seldom shared in this growth and development.[31][32][33] Essentially, I use the term development in the context of what those in power in early twentieth century America believed needed “fixing” in order to achieve societal objectives. Though Native Americans have an implied right to certain waters associated with Indian reservations, the uncertainty surrounding these rights has created problems for Native Americans and non-Native Americans in the century since the initial court case in 1908. The Supreme Court's 1908 decision in Winters v. United States establishes that Native Americans have the right to draw enough water to enable their own self-sufficiency from the rivers that pass through their reservations. On the surface, this decision appears to protect Native people from incursions on their water rights by both white settlers and the federal government. In practice, however, Native Americans received only their paper rights, not actual “wet” rights. Various agencies in the executive branch, such as the Department of Interior and the Reclamation Service, were able to interpret the Winters decision in such a way as to ensure the prioritization of white American water rights and the federal government’s control of waterways.

The eminent water historian, Norris Hundley, claimed in his critical 1978 article “The Dark and Bloody Ground of Indian Water Rights” that “nothing is more important to the future of America’s Indian reservations than water, and no subject has been fraught with more confusion or been more bitterly contested than Indian water rights.”[34] Not much has changed in forty years, at least with regard to the scarcity and importance of water to Native Americans and everyone in the American West. Since 1908, Native Americans have clung to the hope of the Winters right, but in reality, the benefits of these rights have been few and far between. The mere potential application of the reserved rights doctrine was viewed with fear by western states and white settlers, and they claimed it would be a “cloud” on western water rights and development.

I grew obsessed with the Winters Doctrine because it has major implications for how we understand not just the rise of the modern presidency and the growth of the American state, but also how America developed as a continental power before it could establish itself as an international power. Water law, just as other realms of law in the twentieth century, was instrumental in the establishment and growth of the federal government, and in ensuring a status quo in which white citizens’ (and the federal government’s) rights were paramount in the American west.

In the before days [35] I was in the Library of Congress’ looking at old Supreme Court opinions, mainly trying to find the ideas of justices that sadly have not been digitized yet. After finding a ton of cases that I hadn’t seen online, it was clear that the transformations in water law during this era were instrumental in the federal government’s quest to maintain control over the Native American way of life and as much of their land as possible.

Before I could get to the archives, I saw that historians and legal scholars had made multiple references to how the expansion of the federal government, the failed allotment policy, and other events in the early twentieth century were instrumental in subjugating Native Americans across the United States, but no one was looking at the exact intersection of water law and the executive branch and how this impacted Native Americans.

So I wondered, if the federal government was insistent on making Native Americans the “vanishing race,” did Native Americans going to the legal system to resolve their water disputes and fight for their sovereignty mean that they ceded their sovereignty before the battle had even begun? I question the actual autonomy Native Americans held in the American legal system, especially considering how ineffective the Winters Doctrine actually was in protecting Native American’s water rights.

In 1978, 55% of 241 Native American reservations were located in the arid or semi-arid regions of the American West.[36] At the time of the Dawes Act (or the General Allotment Act of 1887), the federal government’s policy toward Native Americans pushed for assimilation into the role of the quintessential rural, independent American farmer; the federal government no longer wanted Native Americans to be dependent upon them. However, this legislation, which abolished all tribal and communal land ownership of Native American tribes and divided land into individual holdings, crippled Native Americans’ self-sufficiency, precisely because much of the land allotted to Native Americans was not arable.

In fact, while the framers of the legislation had promised Native Americans much less land than they held at that time, the allotment policy actually led to further attenuation in the Native American land base. Nevertheless, William Jones and Francis Leupp, both commissioners of Indian Affairs under Theodore Roosevelt, drew from social Darwinist views to claim that that “Indian reservations, along with government stewardship of Indian land, were doomed by social evolution.”[37] The passage of the Reclamation Act in 1902, which created the Reclamation Service, would lead to further land decreases, and ultimately a bitter inter-agency dispute over how to advocate for Native American water rights. The Reclamation Service required increasing amounts of land and streams in order to complete its projects, and Native American tribes along with the Bureau of Indian Affairs were not strong enough to push against the Reclamation Service, the presidency, or Congress.

At the time of Hundley’s article, most historians and legal scholars had largely ignored the issue of Native American water rights. Until 1963, when the Supreme Court held a specific type of right for Native Americans that was first held in 1908.[38] The effects of Arizona v. California and Winters v. United States, finally began to reach importance in legal and water history at the height of the environmental movement in the 1970s.

After reading the 1908 Winters opinion, I decided to look at how the executive branch and the federal government dealt with this case. The Theodore Roosevelt administration, specifically the Department of Interior and the Bureau of Reclamation found ways to manipulate and benefit from the Winters Doctrine, and ultimately take power away from Native Americans. This meant not only that law was deeply connected to politics, but also reveals how Native American law and water law specifically created fractures between the three branches of the federal government. The conflict between the riparian and prior appropriation doctrines in water law, and the synthesis in the reserved rights (Winters) doctrine exacerbated jurisdictional debates between the federal and state governments. Ultimately, the synthesis of water law created the conditions for Theodore Roosevelt to claim greater executive power and established the growth of the American state.

The American mission (even before America had become an independent country), since the Seven Years War had been to take more land, even if that land belonged to Native Americans. For all of the nineteenth century, since the Louisiana Purchase, the federal and state governments attempted to fulfill the Jeffersonian ideal of an agricultural republic, to support the white man’s right to property. After the United States war with Mexico, and America’s “paper” acquisition of all the land from the Atlantic to the Pacific oceans (though much of the Northern Plains had still not been officials acquired). The United States government still had to become an actual continental hegemon. What stood in the way was not just natural obstacles, but also Native Americans and ultimately the control of the waterways. The apex of this attempt to gain complete hegemony over the land and the treatment of water rights as the final frontier came during the Progressive Era.

The Progressive Era has been long recognized as the critical period for the rise of social reform and legislation, but this era also included the virtually complete dispossession of Native American lands and an attempt to de-Indianize their way of life. We know about the intersection of the rise of capitalism, industrialization, and big businesses, as well as how the legal developments during this period fit into the complete control over Native American reservations. The federal government after the Winters Doctrine eventually gained control over how Native Americans could use their water as well as the funding of irrigation projects on Native American lands, there was little left that Native Americans actually had control over when it came to their way of life, especially when it came to their economic futures.

After reading so many court opinions my head hurt, I realized that the changes in water law in the American West underscore a clear process of how Native Americans, their land, and their water were controlled, and how the federal government gained continental hegemony as well. There were attempts at Native American resistance to this hegemonic control, even though the first cases using the Winters Doctrine were mainly brought forward by white reservation superintendents, eventually Native Americans tried to take control over their legal futures. However, these counter-hegemonic attempts were futile in the long arc of Native American history in the twentieth century. Even though the Winters decision sent initial shockwaves through the federal government, the vagueness of the opinion allowed for the creation of a “water empire” throughout the American West. This empire enabled the federal government’s reclamation program to grow and increased the levels of control over state waterways and Native American reservations.

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[1] Donald Worster, Rivers of Empire: Water, Aridity, and the Growth of the American West, (New York: Pantheon Books), 1985. [2] Donald Worster, Rivers of Empire: Water, Aridity, and the Growth of the American West. (New York: Pantheon Books), 1985, 7. [3] Worster, 276, 5 [4] Worster, 4 [5] ibid. [6] Worster 5 [7] Today there are countless books on the Bureau of Reclamation and the irrigating of the West, but Worster’s account is perhaps one of the most detailed and extensive. [8] Worster, 6. [9] Worster relies heavily on the theoretical works of Karl Marx and Karl Wittfogel to support his notion of the “hydraulic empire” in the West. The core human impulse Worster relies on is that of humans to dominate others which derives from the “incessant modern drive to remake nature.” (53) [10] Worster, 22. [11] Worster, 276. [12] Worster, 169. [13] Worster 256 [14] ibid. [15] Richard White, The Organic Machine (New York: Hill and Wang, 1995), ix. [16] “Knowing, Nature Through Labor: Energy Salmon, and Society on the Columbia” [17] White, 18. [18] ibid. [19] White, 23. [20] White, 15. [21] “Putting the River to Work” [22] White, 35. [23] White, 47. [24] “The Power of the River” [25] White, 68. [26] White, 34. [27] “Salmon” [28] White, 91. [29] White, 107. [30] White, 108. [31] When I use the term “development” I am referring to the definition that arose in the early twentieth century in specific technical fields from urban planning to biology, it was seen as “an unfolding” which proceeded through knowable processes toward a predetermined end. The term development assumes that there is a maturation process underway, in which economies, regions, or even people have different speeds in which they progress from traditional to modern. [32] Nick Cullather, “Development? It's History.” Diplomatic History 24, no. 4 (2000): 641-53. [33] H.W. Arndt attributes the first use of "economic development" to Karl Marx (1887) who gave it implications of historical inevitability. Arndt, “Economic Development: A Semantic History,” Economic Development and Cultural Change 29, no. 3 (1981): 457-66. [34] Norris Hundley, “The Dark and Bloody Ground of Indian Water Rights: Confusion Elevated to Principle,” The Western Historical Quarterly 9, no. 4 (October 1978): 454-482. [35] Before the plague. [36] ibid. [37] Donald J. Pisani, Water and American Government: The Reclamation Bureau, National Water Policy, and the West, 1902-1935 (University of California Press, 2002), 158. [38] Arizona v. California, 373 U.S. 546 (1963).