Domestic Affairs

Restoring Tribal Water Rights

The COVID-19 pandemic continues to serve as a tragic reminder of the racial inequalities that plague the U.S., and Native Americans are some of the most vulnerable. Inadequate funding, homes in rural locations and a higher risk of health conditions such as diabetes, asthma and cardiovascular disease have led to a disproportionate risk of death for American Indians living through the pandemic. Lack of water, in particular, is weighing down Native American communities during COVID-19. This long-standing problem on reservations makes washing hands difficult, impedes medicine administration and forces people to congregate at the few spots where clean water is available. It is time to listen to Indigenous people and implement the solutions they’ve been calling for: granting tribes environmental primacy and allowing them to determine their own futures. 

The U.S. federal government has a moral and legal responsibility to ensure that reservations have access to clean and reliable drinking water. When tribes conceded millions of acres of land to the U.S. government, they did so with the promise that the U.S. would provide a “livable reservation” in return. Clearly, water is an absolute necessity for establishing a livable home, and legally, the right to water on reservations was affirmed by the Supreme Court’s  1908 decision in Winters v. United States. The Supreme Court ruled that “access to a clean, reliable supply of water is basic to human health” and that tribes reserved the right to enough water to fulfill the purposes of the reservation. Since then, there have been multiple decisions reaffirming the federal government’s responsibility to maintain and protect Indian lands, including United States v. Mitchell (1983), United States v. White Mountain Apache Tribe (2003), and United States v. Navajo Nation (2009).

Despite the precedent established by the Court and the promises made by the government, half a million people living on reservations continue to live in homes without potable water. Water insecurity has grown so bad among tribes in the Colorado River Basin that it is customary to bring bottled water as a greeting gift. Homes frequently lack flushing toilets or running water to wash dishes. Homes that do have running water have to contend with rampant water contamination, making the water flowing out unusable. Budgets are so tight on reservations that water system repairs are often cut whenever budget shortfalls occur. The result of this underinvestment is outdated technology and rotting pipes. Additionally, unprecedented growth of the Indigenous population has placed further strain on failing systems.

Tribes have made tremendous strides by pursuing lawsuits against the federal government in recent years. Unfortunately, these lawsuits have some significant downsides. First, they are lengthy and costly. Suing the federal government for anything takes an extraordinary amount of time, especially when billions of dollars worth of funding are at stake. 

Second, the terms of the lawsuits concede a significant portion of tribes’ hard-earned water. Lawsuits do not provide the immediate relief tribes need, and even in situations where they do succeed, reservations are often left without the necessary funding to act on their claims. The result is that many legal challenges end in settlements that exchange a portion of tribes’ deserved water for an immediate conclusion and some funding for water infrastructure. Settling early on is usually a more practical alternative to continuing a lawsuit for years. This legal reality is nothing more than an absolution of responsibility by the U.S. for a promise it has already broken. The government’s inaction amounts to theft. 

Third and lastly, even when water settlements are reached, they can fail to be implemented. Congress must approve any water rights settlement before it can take effect. Only 17% of water rights settlements were approved when Republicans controlled both houses of Congress, in contrast to the 72% of settlements approved when Democrats controlled both houses. In short, current litigation based solutions are not working. 

The only viable solution is one that embraces a unified approach across governmental departments. Existing regulation over tribal lands and their water is spread out, confusing, and lacks clear direction. Government agencies must have clear direction and the funding to achieve the necessary goals. 

The first step is to expand Tribes as States status to all federally recognized tribes under Section 518 of the Clean Water Act. Tribes as States (TAS) status allows the Environmental Protection Agency (EPA) to treat recognized tribes in a manner similar to states for the purposes of environmental enforcement. The Clean Water Act established the standards we use to determine whether water is clean enough for drinking and other day-to-day uses. However, political concerns about federal overreach meant that the bill worked under a state primacy framework. Under this framework, the EPA was given authority to approve standards, make inspections and review results, but it had to work with state governments to maintain and enforce water quality standards. State primacy gave states a significant amount of control over the execution of environmental projects. The original 1972 version of the bill had no mention of tribes or reservations, leaving tribes in legal limbo. American Indian tribes are legally sovereign nations in the eyes of the federal government, but their land is held in trust, meaning that there is no mechanism for tribes to enforce or set their own water standards. Eventually, led by a push from indigenous activists, amendments were made that allowed the EPA to grant TAS status to tribes. 

TAS closed one regulatory gap, but it caused others to open. Tribes wishing to implement water quality standards must apply and receive primacy status from the EPA. Only 15% of eligible tribes were approved, but most of the denials occured for easily identifiable reasons. Tribes lack the technical expertise and funding necessary to develop standards and submit them for review to the EPA. Not only must the EPA review proposals, but it must also ensure that tribes can enforce them. The lack of funding means that the majority of the applicants are not able to meet this standard. Furthermore, there is little political incentive for the EPA to help. EPA resources are already stretched thin, and American Indians are not viewed as a significant enough voting bloc to shift lawmakers’ attention. Furthermore, the EPA tends to focus on large wastewater treatment facilities for enforcement and inspection. Unfortunately, a significant portion of tribal wastewater facilities are small to very small facilities. This is where tribal primacy has the most positive effects. About 15% of tribal wastewater facilities operate under tribal primacy, and it is in these areas where historically neglected communities get the most attention. Small facilities receive almost three times more inspections under tribal primacy than when under the EPA. 

Granting primacy status to tribes gives them the regulatory framework necessary to take charge of their future. Although funding and expert shortages are still impediments for tribes that the EPA has not approved, there is a solution for that.

The second step, funding for the Indian Health Service’s Sanitation Facilities Construction Program and the U.S. Department of Agriculture’s Rural Development Program must increase. As discussed above, the country has an obligation to ensure that the conditions on tribal lands are sufficient to provide Natives living on those lands a comfortable and thriving future. The U.S. government has been shirking its financial responsibilities to tribes for far too long. Federal funding for reservations has fallen below expectations for decades now. The aforementioned programs are existing solutions that would not necessitate extensive policy meetings in Washington. Congress could simply allocate more funding, and/or the executive branch could redirect more funding to go towards these programs. The Sanitation Facilities Construction Program uses its funds to help design and build wastewater and solid waste facilities and has been effective in the past. Similarly, the Rural Development Program offers additional funds through its Water and Waste Disposal Grants. This additional funding means that the EPA should have no doubts that tribes have the resources necessary to maintain and repair their facilities. 

The third and last step is to instruct the Bureau of Reclamation (BOR) to provide technical assistance to tribes in need. The BOR has been involved for decades in supplying water across the American West. The agency has a history in the area and could provide the technical expertise necessary for tribes to receive approval from the EPA. The Native American Affairs Program would benefit from more funding, but it could offer invaluable expertise for rural communities even as it stands now. The technical knowledge required to perform maintenance on water facilities is not easy to acquire for systematically underfunded communities. Providing technical assistance through the BOR would allow tribes to fulfill the EPA’s requirements and create jobs in areas that are struggling economically. 

Reservations are in a state of crisis. The U.S. government has failed to treat tribes with basic human dignity for centuries. Perpetual underfunding, rejection of basic legal rights, and active attempts to undermine Native goals are historically and presently disgraceful elements of the American relationship with tribes. Indigenous communities are advocating for change that continues to fall on deaf ears. It is time our leaders start listening. The least we could do as a country is to stop reneging on our promises and provide the bare minimum necessary for the flourishing of Native life. All the tools required to achieve this goal already exist. The only question is whether or not we are willing to seize them for a greater good.

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