Water Rights and A Civil Action (1998): A Riparian Dilemma

Water Rights and A Civil Action  (1998): A Riparian Dilemma

Water has been considered a natural right around in the world and treated as a usufructary right for thousands of years. Such a right gives temporary possession and enjoyment to those who use water, as long as that use does not cause damage or change it. According to this perspective, water can be used but not owned. The Riparian Doctrine clarifies this natural right.  As economist Zachary Donohew explains, because water is typically seen as a usufructary right, rivers and streams cannot be owned but their water can be accessed by those who live and work beside their banks (90). Although current riparian principles draw on private ownership to define reasonable water use, the doctrine primarily applies to public riparian lands, as activist Vandana Shiva notes in her discussion of communal water use in Colorado’s Rio Grande Valley (27).  The Riparian Doctrine still prevails in much of the Eastern United States because water is much more abundant there than in the Western states, but it also serves as a guiding principle for community rights and water democracies in India (Shiva 29), which hold that “Water is a commons…. It cannot be owned as private property and sold as a commodity” (36).

Both fictional features and documentaries with water at their center draw on the tenets of the Riparian Doctrine. Westerns such as The Ballad of Cable Hogue (1970) emphasize riparian principles, especially in relation to the Desert Land Act, but contemporary feature films also draw on riparian ideals, which, in these cases, are in conflict with the Clean Water Act and its roots in human approaches to ecology. In A Civil Action (1998), for example, “reasonable use” is under question. The film explores whether or not those who used the same water source as does a leather tanning company were adversely affected by the company’s water use. Although the film primarily centers on Jan Schlichtmann’s (John Travolta) failed attempts to sue both Beatrice and W.R. Grace, he ultimately proves that the tannery these companies manage dumped silicone and trichloroethylene (TCE), toxic waste that contaminated a town’s water supply and caused multiple cancers in its townspeople.

           

In A Civil Action, attorney Schlichtmann investigates a case that revolves around a woman whose son had died of leukemia two years before, along with more than a dozen other townspeople, and the city’s drinking water is blamed. The townspeople seem unaware of the source of this water pollution, but Schlichtmann discovers a tannery connected with W.R. Grace is dumping toxins into the river beside the factory. He meets representatives of Beatrice Foods and W.R. Grace, and since they have big pockets, the lawsuit begins. Schlichtmann’s investigation is meant to determine that silicone and trichloroethylene (TCE) were dumped into the water supply by the tannery and causing the cancers in townspeople. Ultimately, Schlictmann and his law firm settle with both Grace and Beatrice, but Schlichtmann also sends his case files to the EPA, including a report from a worker who witnessed the cleanup that proves toxic waste had been dumped in the city’s water supply, and the EPA forces both Grace and Beatrice to pay 69.4 million dollars in cleanup costs because both companies violated the Clean Water Act.

According to a summary of the Clean Water Act from the EPA, “the Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters,” but not groundwater sources. Based on this 1972 Clean Water Act, the EPA “has implemented pollution control programs such as setting wastewater standards for industry” and “set water quality standards for all contaminants in surface waters,” making it illegal to “discharge any pollutant from a point source into navigable waters, unless a permit was obtained.” The Clean Water Act helps control one important element of the riparian doctrine, ensuring that downstream water uses are not adversely affected by those upstream. The Clean Water Act and the EPA monitoring it become integral agents in A Civil Action and the actual court case it inspired.

The Cli Fi Movie Awards get a name: THE CLIFFIES! A Q and A with cli-fi founder Dan Bloom

The Cli Fi Movie Awards get a name: THE CLIFFIES!

Joe and I are pleased to share an amazing event with help from its founder, THE CLIFFIES! Please check out the Q and A below to learn more about the first awards program for climate  fiction (cli-fi) film! In a brief self-interview, climate activist and genre student Dan

Bloom talks about his new Cli Fi Movie Awards program, what it is and

why he started it.

QUESTION: -- Dan, you've coined the cli fi genre term and you've been

busy the past 3 years promoting it to the media in the USA, the UK and

Australia, with some pickups also in Denmark, Norway, Brazil, Chile

and Spain. Why are you now curating the CLIFFIES, what you call the

CLI FI MOVIE AWARDS, which you have dubbed in your word coining ways

as "The Cliffies"? What are the Cliffies?

DAN BLOOM: The Cli Fi Movie Awards will honor and recognize the best

cli fi movies of the year on an annual basis. In ten categories. The

2015 launch will be on February 15, a week before the Oscars telecast

worldwide.

QUESTION: -- Why run the event a week before the Oscars?

DAN BLOOM: We want to get maximum media exposure for the Cliffies

awards and this is just good PR timing.

QUESTION: How many movie nominations have come in this year for the

2014 period of cli fi movies?

DAN BLOOM: Seven films have been nominated so far, with categories

like best directors, actors, supporting actors, cinematography, PR and

marketing campaigns, and a few more new categories never awarded

before in Hollywood!

QUESTION: Such as.....?

DAN BLOOM: Wait for the CLIFFIES launch.

QUESTION: Who is funding the event? Sponsors? Venue? Where will the

CLiFFIES take place?

DAN BLOOM: Again, wait for the launch on mid February. This is big.

This is trending and this will reach a lot of important people in the

movie industry with a cli fi message for future years. That's our

goal. That's our premise. That was our starting point. The Cliffies

are not about glitz or glamor or movie stars. They are about the very

future of our planet. Hollywood has a big role to play and indie

movies, too.

QUESTION: Dan, you come across as a bit of an eccentric, a bit of a

maverick and a bit of a climate activist with a never give up

attitude. Who are you?

DAN BLOOM: All three. Take your pick. I answer to all of them. Mostly

I'm a lone wolf crying in the wilderness, shouting from the rooftops,

issuing some wake up calls, ringing some alarm bells, hopefully.

QUESTION: Do you think in all seriousness the media is going to pay

attention to this cockamamie idea of a cli fi movie awards event

dubbed the CLIFFIES when you yourself have zero street cred in

Hollywood, zero media visibility and zero sponsorships?

DAN BLOOM: I'm not worried. What will happen, will happen. Watch! This

is big. We're starting small, but there is a huge growth potential

here, and not about money or glitz. This is a very serious thing we

are curating.

QUESTION: Do you have have any background in the movie business? I

mean, what are you getting yourself in to?

DAN BLOOM: I know a few people in the movie industry, producers and

screenwriters. I've been around the film business all my life as a PR

guy. But this is not about Hollywood, this is about waking Hollywood

up. See?

QUESTION: I do believe you are a maverick, an eccentric,

and a lone wolf climate activist. Not many people would go out on a

limb and do what you are doing, without a parachute and without any

funding or sponsors.

DAN BLOOM: If you build it, they will come. I once interviewed Kevin

Costner during a press conference in Tokyo when I worked there as a

reporter and he came to town for DANCES WITH WOLVES. If you build it,

they will come. He taught me that! ''Field of Dreams''!

NOTE: Nominations for the CLIFFIES are still valid until last day of

December. Send suggestions and categories to:

TheCliffies2015@gmail.com

Westerns and Environmental Adaptation: Turning Reservation Hell Into Home

Western films in which Native American characters are highlighted rest on what we call narratives of environmental adaptation. Although westerns with Native Americans at the center or on their edges do construct Native Americans as either savage or noble “others,” the films also (and most importantly for us) demonstrate how effectively Native Americans have adapted, and adapted to, what white settlers see as an environmental “hell” or something worse. As the Fort Lowell commander, Major Cartwright (Douglass Watson), puts it in Ulzana’s Raid (1972), “You know what General Sheridan said of this country, lieutenant? ... If he owned hell and Arizona, he’d live in hell and rent out Arizona.”

In a move toward a more sustainable view of prairie and desert ecosystems, Native Americans in a variety of western films adapt a seemingly lifeless environment into a place they can call home. This narrative of environmental adaptation continues even into contemporary western films set on and near reservation lands and gains particular force in Sherman Alexie’s Smoke Signals (1998). 

Economic and environmental disasters continue on reservations, perhaps like countries in the developing world where infant mortality, alcoholism, and poverty rates are shockingly high. Approximately one third of Native Americans live on reservations, and twenty-five percent live below the poverty line. Yet, as Sandefur asserts, numbers living on reservations have increased from twenty-five to thirty-four percent from 1980 to 2000 because the reservation also provides a cultural base where tribal language and culture can be maintained, a strong sense of family and community, and a sovereign system run by a tribal council and the Bureau of Indian Affairs. The goal for Native Americans living there is to adapt the “hell” of their reservations into a home. 

An earlier film, Chato’s Land (1972), helps illustrate the parameters and repercussions of such environmental adaptation. The film highlights the Apache worldview from a white perspective but provides insight into how Pardon Chato (Charles Bronson), a half Apache mestizo, survives in what seems like uninhabitable land. According to Captain Quincey Whitmore (Jack Palance), when Chato runs from the captain because he killed a U.S. marshal in self-defense, he “picks his ground” carefully. Unlike white soldiers, Chato has adapted to this inhospitable land and can use it to his advantage in a fight. The captain explains the wisdom of Chato’s choice to run through Indian Territory: “To you this is so much bad land—rock, scrub, desert and then more rock, a hard land that the sun has sucked all the good out of. You can’t farm it, and you can’t carve it out and call it your own… so you damn it to hell and it all looks the same. That is our way. To the breed now, it’s his land. He don’t expect it to give him much, and he don’t force it none. And to him it’s almost human—a livin’ active thing. And it will make him a good place to make his fight against us.”

Other western films address the Native American perspective on adapting to their land in less obvious ways. The Scalphunters (1968), for example, complicates received beliefs regarding both Native Americans and Comancheros when a group of Native Americans exchange Trapper Joe’s (Burt Lancaster) animal hides for an escaped slave named Joseph (Ossie Davis). When the Native Americans are raided by Comancheros led by Jim Howie (Telly Savalas), racial binaries begin to disintegrate, making room for accommodation and a collective view of human and nonhuman nature. And The Outlaw Josey Wales (1976) examines Native American worldviews both peripherally and from a first-person point of view—through the eyes of Lone Watie (Chief Dan George) who becomes part of a family of castoffs, including Josey Wales (Clint Eastwood). The majority of westerns, however, construct Native Americans as an “other” who must be destroyed or vanquished for civilization to prosper, but even films like The Searchers (1956) provide a more complex look at Native Americans when scrutinized through a narrative of environmental adaptation.

These narratives of environmental adaptation become most convincing, however, in the 1990s and 2000s when Native Americans begin telling their own stories both as filmmakers and actors. Written by a Spokane/Coeur d’Alene Indian, Sherman Alexie, and directed by a Cheyenne-Arapaho, Chris Eyre, Smoke Signals illustrates how Native Americans still transform hell into a home, in a narrative of environmental adaptation centering on two fatherless young men exploring their heritage outside the reservation.

The Vanishing American (1925) and The Miracle Rider (1935): Pre-World War II Narratives of Environmental Adaptation

Unlike Western literature, Western films tend to focus on Plains Indian tribes, the nomadic tribes in the plains settlers crossed to reach the West, with little distinction between tribes. The films also respond to film history, a history that coincides with political and cultural history of both Hollywood and the United States as a whole. According to Scott Simmon, American Indians were at the center of many early silent westerns, from The Red Girl (1908) to Hiawatha(1913). According to Simmon, “Indians may well have entered American film for the reason they came into the European tradition as a whole: Searching for stories to set in the landscape, pioneer filmmakers stumbled upon ‘Indians,’ the presumed men of nature” (4). Set in Eastern lush forests instead of desert plains, the narratives of these early silent westerns “are set entirely within tribal communities or feature a ‘noble redskin’ as guide or savior to the white hero” (4).

By 1914, however, Simmon asserts, American Indian actors and sympathetic narratives were no longer prominent in westerns at least partly because the “U. S. Army began planning, with some innocence, for America’s entry into World War I by requisitioning horses” (80). According to Simmon, “The subsequent history of Indian images in silent-era Hollywood becomes a story with two paths—one about war, the other about love—neither leading anywhere except Indian death” (81). 

In spite of Simmon’s contention, at least a few westerns highlighting American Indian characters and narratives present a more sympathetic view of a possible comic evolutionary narrative, a narrative of environmental adaptation that reveals the ineffectiveness of a tragic evolutionary path and the intruder pioneers who seek destruction rather than adaptation. Although racially flawed, The Vanishing American (1925) and The Miracle Rider (1935) serve as two western films prior to World War II, which draw on this more sympathetic perspective.

The Vanishing American traces a history of domination of American Indians by pioneering intruders, including that of Booker (Noah Beery) a white Indian agent overseeing a Navajo reservation where he mistreats the Navajo and steals their horses. Nophaie (Richard Dix), an educated Navajo who fought in World War I, is torn between his people and his white teacher, Marion Warner (Lois Wilson), when he returns from the war, and ultimately is sacrificed as he fights against Booker to regain his people’s dignity. Miscegenation is avoided because of Nophaie’s death, but the film’s prologue, especially, foregrounds a history of conquest, one that is lamented even if painted as inevitable in the film.

The Miracle Rider, a Tom Mix serial, opens with a chapter that is also dedicated to the “Vanishing Indian.” The episode provides historical background that bifurcates American Indians willing to adapt to their environment from their white opponents, demonstrating how a tragic evolutionary narrative destroys both American Indians and their hunting grounds. They both valorize a comic evolutionary narrative, one from a silent big budget western perspective, the other from a small budget western serial point of view, but they both also demonstrate the futility of such a valorization.

Dances With Wolves and the Evolutionary Narrative

Hailed as groundbreaking because of its sympathetic portrayal of American Indians, Dances with Wolves (1991) follows a pattern similar to that found in Jeremiah Johnson (1972), where a white American goes native, embracing and in the process co-opting American Indian culture and attitudes toward environmental adaptation. Sherman Alexie calls this “cultural appropriation” a threat to American Indian sovereignty. In the context of Dances with Wolves, such cultural appropriation serves as a threat to the Sioux Indians’ very survival. John Dunbar (Kevin Costner) penetrates the Siouxs’ homes, families, and culture as a brother, but he represents the military that will soon force the tribe’s banishment to the West. Before the film’s end, however, the narrative of environmental adaptation follows an evolutionary pattern: rebellion against and rejection of U.S. culture and movement west, discovering American Indians on the plains, gaining sympathy for Sioux culture and internalizing their ideology, and clashing with the dominant culture they left behind.

For us, the narrative in Dances with Wolves harkens back to Run of the Arrow (1957) in which Pvt. O’Meara (Rod Steiger) leaves the defeated Confederacy, joins the Sioux as an ex-soldier and takes an American Indian wife. Both films reverse the narrative of environmental adaptation by inserting a sympathetic white soldier as protagonist. In both movies, however, this evolutionary narrative fails because white intruders either banish or exterminate the Sioux. In spite of the two soldiers’ initial sympathy for the American Indians that adopt them, intruding pioneers dominate the narrative. As Meeker argues: “No human has ever known what it means to live in a climax ecosystem [in which human and nonhuman nature thrive], at least not since the emergence of consciousness which has made us human. We have generally acted the role of the pioneer species, dedicating ourselves to survival through the destruction of all our competitors and to achieving effective dominance over other forms of life” (162). In Run of the Arrow and Dances with Wolves, on the other hand, the Sioux and the white men they adopt are constructed as thriving members of a climax ecosystem that dissolves only when the pioneers, the cavalry, intervene.

In Run of the Arrow, O’Meara refuses to return home after the Civil War and pledge his allegiance to the Union with whom he had been fighting as a Southerner. He rejects the Union and flees to the West, meeting a tribe of Sioux who adopt him. He marries Yellow Moccasin (Sara Montiel) and lives peacefully with the Sioux until the cavalry begins building a fort on their land. This invasion into the Sioux paradise disturbs the evolutionary narrative O’Meara had been following. In the end, the cavalry defeat the Sioux in battle. O’Meara rejoins the white military and helps defeat his adopted “family.”

          

John Dunbar of Dances with Wolves rejects the civilization of the eastern United States when he asks to be reassigned to a western fort. His major (Maury Chaykin) asks him, “You wish to see the frontier?” And Dunbar answers, “Yes, sir, before it’s gone,” a subtle critique of the destruction in the West and of its resources by white settlers. He then encounters Sioux near his abandoned fort and records his observations in a journal, all reported in his voiceover narration. With each meeting, Dunbar gains more sympathy for the tribe. In one early entry, Dunbar notes, “Nothing I have been told about these people is correct. They are not thieves or beggars. They are not the bogeyman they are made out to be. On the contrary, they are polite guests and I enjoy their humor.”

Before the end of Dunbar’s evolutionary narrative, he has adopted an American Indian worldview. As Kicking Bird (Graham Greene) asserts of Dunbar’s transformation, “I was just thinking of all the trails in this life, there are some that matter most. It is the trail of a true human being. I think you are on this trail, and it is a good one.” Ten Bears (Floyd “Red Crow” Westerman) even tells Dunbar, when Dunbar expresses concern about the cavalry’s hunt for him, “The white man the soldiers are looking for no longer exists. Now there is only a Sioux named Dances with Wolves.”

Ultimately, however, the narrative breaks down because whites, like intruding pioneers, threaten to wipe out the Sioux and their land. The cavalry does find Dunbar and arrest him for desertion, but he escapes and, like the Sioux, vanishes into the wilderness, taking Stands With a Fist (Mary McDonnell) with him. Unlike the Sioux, however, Dunbar and Stands With a Fist are white and can integrate easily into white culture. The Sioux, however, must contend with white men whose numbers are, as Dunbar explains, “like the stars.”