The Color of Water: Observations of a Brown Buffalo on Water Law and Policy in Ten Stanzas

Abstract

This article invokes Chicano Movement lawyer, Oscar “Zeta” Acosta, and his literary persona of the “Brown Buffalo” to bring the perspective of LatCrit Theory into exploring and understanding the rights, remedies, and policies associated with water resource management. Perhaps owning to water’s scarcity, humans have developed complex and sophisticated legal regimes surrounding the use, acquisition, and distribution of water as a resource. Accordingly, this article is meant to draw attention to some of the ways that law has directly contributed to an unequal and inequitable distribution of water problems; including access to domestic water supplies, maintenance of water and sewage infrastructure, contamination of drinking water, and safe levels of floodplain occupancy. Although such problems have been associated with developing countries and their subordinated racialized communities in Africa, Asia, and Latin America, they are present as well among certain communities of color in the United States. Yet, outside of a very narrow range of exceptions — namely environmental justice and the water rights of political and cultural minorities such as American Indians or Hispanos in New Mexico — legal scholars or policy makers of the United States who think about, study, and write about race or water law rarely if ever address the racial intractability of these problems. The article argues that water organizations and legal institutions are too often color-blind in their legal and policy orientation. The article is organized in five parts; each introduced by stanza or stanzas of an original poem, El Grito de la Agua, I penned in preparation for my plenary remarks at the Fifteenth Annual LatCrit Symposium held in Denver, Colorado in October 2010. As such, it has been republished in 1 University of Miami Race & Social Justice Law Review 107 (2011). The article is not meant to be exhaustive, but merely suggestive of the many insidious ways that water law and policy creates, reinforces, and reproduces the Brown, Black, White, Red, and Yellow color lines that have become so salient a feature of social inequality in the modern world. It highlights, as well, the across-the-board neglect about the racial impact of water rights and administration by not only main stream policymakers and academics, but by progressives and the LatCrit project in particular. By invoking Acosta’s Brown Buffalo, I hope to begin a lasting conversation about water, race, and the role of water lawyers and policy makers in an ever thirsty world.