Tribal leaders engage Colorado Senator Bennet to ensure universal access to clean water on reservations

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Lorelei Cloud grew up in a house without running water. Every week, her family would travel to her uncle’s place and haul water from his garden house back to their house. Eventually they moved and did have a water line coming in, but even then, it wasn’t drinkable due to naturally occurring methane in the area water system. 

Cloud is a member of the Southern Ute Indian Tribe, a relatively small tribe of 1,500 members, 1,000 of which live on the tribe’s reservation covering a little more than 1,000 square miles south of Durango abutting the border with New Mexico. Cloud’s experience is not uncommon in tribal homes across the country, as nearly 48% of them — representing more than half a million people — do not have “access to reliable water sources, clean drinking water or basic sanitation,” according to a 2017 congressional report. 

“In this day and age with all the technological advances, to acknowledge that there are still people in this country that do not have access to safe and quality drinking water and these people reside on reservations across the country is unfathomable,” Cloud told a virtual gathering of water and policy leaders in mid-December. The meeting was hosted by the Water & Tribes Initiative (WTI) to highlight the immediate need, made more urgent by the pandemic, for universal access to clean water on tribal lands within the Colorado River Basin.

“When we went into this work, we went with this premise that water is a human rights issue and that the federal government has a responsibility to ensure that native homes on the reservations have the same water access that any other American’s does in an urban setting,” says Heather Tanana, an enrolled member of the Navajo Nation and professor at the University of Utah law school. Tanana also has a public health degree and is working with WTI on clean water access. 

The CDC reports that the coronavirus pandemic has disproportionately impacted Native Americans and Alaska Natives, with an infection rate 3.5 times that of the white population. Plus, Native American households are 19 times more likely to lack indoor plumbing than white households, Tanana says, quoting the U.S. Water Alliance. 

“We’ve known about these problems for years, it’s not new,” Tanana says. “And the challenges that created them, we’re very well familiar with them.”

The federal government has long ignored Indian country, even as essential infrastructure like roads, electric and water systems, even broadband, developed in white communities around the country. This despite treaties that created reservations in the 19th century that were supposed to provide such things. Historically, Tanana adds, there’s been a lack of coordination between a variety of federal agencies from the Bureau of Indian Affairs (BIA) and Indian Health Service (IHS) to the USDA Rural Development, the EPA, Housing and Urban Development and the Bureau of Reclamation, all of which play a part or have funding to help address these issues.

“There were promises made to make reservations sustainable for life and economic development,” Tanana says. “And it just hasn’t happened.”

Within the Colorado River Basin specifically, these issues are compacted by the fact that tribes and tribal rights haven’t historically been part of the management of the Colorado River. WTI was formed a few years ago with a mission to bring the tribal voice and a greater tribal presence within management discussions and negotiations involving the Colorado River Basin.

There are 29 federally recognized tribes within the Basin, which provides water to 40 million people in seven states, as well as areas of Mexico. Management of the Colorado River system has a long history, with competing interests, complex water rights law and growing populations. 

Tribal rights are briefly mentioned in the Colorado River Compact, although not in connection with the management of the river, says Anne Castle with the Getches-Wilkinson Center at the University of Colorado Law School, who is co-leading the universal access to clean water initiative with WTI. Following a Supreme Court case in the 1960s, there has been an effort to quantify and allocate tribal water rights across the basin through settlements, but to this day not all of the 29 tribes have secured the legal right to water. Currently, tribes hold the rights to 3.4 million acre-feet of water annually with some of the most senior water rights in the Colorado River Basin. 

“It’s probably fair to say that for the vast majority of decisions about management of the Colorado River, the interests of tribes have not been prominent,” Castle says. “There are situations in which discussions about a particular region or watershed, where there are tribal rights, that have been more inclusive discussions, but for the most part tribal rights haven’t been considered.”

For example, the Navajo Nation just recently reached a settlement with the federal government and the state of Utah recognizing its senior water rights in the Colorado River Basin, an agreement that also comes with financing for the construction of water lines and treatment systems. The Navajo Utah Water Rights Settlement Act was signed into law as part of the $2.3 trillion funding bill that also provided COVID-19 relief and stimulus in late December.  

But the historic lack of infrastructure has made battling the pandemic in the Navajo Nation particularly challenging, as 30-40% of its citizens lack access to clean water, President Jonathan Nez told the virtual meeting in December. In some cases, families have to travel 60 miles round trip to get clean water — necessary for personal hygiene and hand washing, key components in battling the virus.  

“Increased incidence of COVID on reservations has been attributed to lack of access to clean water,” Castle says. 

Which is where the WTI universal access to clean water initiative comes in. As part of the project, Tanana is researching and surveying clean water access on tribal lands across the Colorado River Basin. She says the issues fall into four main categories: Some areas may lack running water in homes, others see inadequate water infrastructure (either because it’s outdated or because it can’t meet the current demand). The cost associated with the operation and maintenance of current water systems can also be a barrier, Tanana says, as can inadequate water quality. 

“That has been a huge problem for Hopi,” she says. “They have naturally occurring arsenic that’s been in their water systems since the 1960s when BIA first installed its drinking water system. … They’re estimating that 75% of people on Hopi land are drinking arsenic contaminated water, which, even though it’s naturally occurring, has been connected with diabetes, cancer, blindness, all sorts of serious health concerns.”

The discussion of tribal involvement in management of the Colorado River, as well as lack of access to clean water, also comes at a time of severe drought throughout the Basin. “For the almost century that the Colorado River Compact has been in existence, there wasn’t the kind of pressure and scarcity of water supplies that we’re in the middle of right now,” Castle says. 

While the Colorado River and its tributaries supplies 1 in 10 Americans some, if not all, of their municipal water, including that for drinking, it’s also experienced historically low water flows since 2000, attributable at least in part to climate change. 

“If there’s enough water to go around, there’s less pressure on making sure that everybody with water rights is treated equally,” Castle says, “but in the 21st century that has changed and the supplies are no longer equal to the demand and they’re diminishing.”

As drought continues to threaten the Colorado River, it affects tribes like the Southern Utes who rely on subsidiaries of the Colorado for their water supply, Cloud said at the December meeting. Decreased runoff in the region, along with contaminated runoff from agriculture (like E. coli from livestock in the area) and leaky septic systems upstream all burden the tribe’s water supply and treatment facility, costs that are passed down to tribal members. 

“Anyone who has spent one second on tribal lands can tell you that these inequalities have been staring us in the face for decades and a lot of people in Washington just chose to look the other way and ignore them,” Colorado Senator Michael Bennet, who represents the Southern Utes in Congress, told the virtual gathering in December.

In outlying areas of the Ute Mountain Ute Reservation, areas like White Mesa, Bennet told the virtual gathering he’s heard that it has now become a custom to bring bottled water as a greeting gift because water contamination is such an issue. 

“That is completely unacceptable to me and it should be unacceptable to every member of Congress because if you don’t have access to clean water you can’t build a thriving community. Without clean water people get sick and can’t work, kids get sick and can’t learn, businesses can’t operate,” he said. “In other words, clean water is foundational to everything else.” 

Bennet responded to requests from WTI to spearhead the clean water access effort on the federal level as part of a strategy to address some of the institutional and structural inequality and racism in the country, particularly when it comes to the historical and current treatment of tribes and indigenous people. On the call, Bennet promised to work with the incoming Biden administration to secure more funding and help federal agencies coordinate efforts to secure universal access to clean water for tribal nations and reservations. 

“That was Washington’s promise when the reservations were first created, to take care of the tribes’ essential needs, and our government needs to live up to its federal trust responsibility at long last,” he said. 

He also promised to make sure the Biden administration consults with tribal leadership “government to government.” 

“We’re not going to accept federal fiats with no relationship to what’s actually happening on the ground,” he said. “We need to fight to make sure that Washington doesn’t provide one-off investments but enduring support. If it finances a water system, for example, it has to support maintaining that system in the years ahead.” 

 Bennet said he plans to introduce a resolution in Congress to recognize the federal government’s responsibility to secure clean water access for all tribal nations, as promised in the numerous treaties and agreements that established reservations. His office is busy writing the resolution in conjunction with the tribal leaders and intends to reach out to other Senate offices to gauge interest in co-sponsorship, hoping to make this a bipartisan effort. The resolution will call upon the executive branch to work with tribal governments to expedite the planning and development of infrastructure to support reliable clean drinking water on reservations and Alaska Native villages. 

Castle says the next step is working on Congressional legislation to ensure universal access to clean water, as well as workding with the incoming Biden administration, as clean water access in Indian country is implicated in each one of its priorities: COVID-19 relief, economic recovery, racial equity and climate change. 

“We have some pretty good ideas about what needs to be done to solve the problem,” Castle says. 

There’s also the possibility that making progress on clean water access could come up in discussions about the future of water management in the Colorado River Basin. Currently, water managers in the seven Basin states rely on federal operating guidelines established in 2007, along with a drought contingency plan, to inform their decisions. But these expire at the end of 2025 and officials are already talking about what comes next. 

WTI exists to ensure tribal nations are represented in renegotiating the guidelines, a position that largely wasn’t afforded to them in previous discussions. Castle says tribal leaders have yet to determine their negotiating positions when it comes to the next set of operating guidelines for the Colorado River. “That’s a decision that they’ll have to make, and that has not occurred at this point, but it could be that the tribal leaders will determine that access to clean water should be part of the discussion,” she says. 

Daryl Vigil, codirector of WTI and water administrator for the Jicarilla Apache Nation, says the clean water access campaign is “absolutely connected” to WTI’s work in the guideline negotiations for the Colorado River.

“The renegotiations deal with the larger issues of water policy and in my experience in terms of the history of that, the policy has been exclusion and lack of engagement and — maybe this is a little harsh but — institutional theft of tribal water with the inability to develop tribal water rights in a climate of conservation,” he says. “We need to determine who we’re going to be as human beings in the Colorado River Basin and determine what we value and then build a policy on that.”    

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