Water Rights Becoming a Focal Point for Native Nations

Across the expansive White Earth Indian Reservation in Minnesota, the native tribe has historically depended on waters for wild rice harvesting, sturgeon restoration, and supplying bait for fishing. However, climate change-induced droughts and agricultural irrigation are jeopardizing these waters. Added to this, manure runoff from large farms could further contaminate the remaining water sources.

In response, the tribal government introduced an ordinance last year. It restricts water withdrawals from the reservation and neighboring areas sharing an aquifer. Specifically, businesses or farms wanting to withdraw over a million gallons annually now require a tribal permit. Yet, the state has continued issuing water withdrawal permits on reservation land, sparking a legal contention currently in the tribal court. Amid this, Minnesota officials are reassessing jurisdictional boundaries while the tribe pushes for its sovereignty recognition.

The White Earth Band is not alone in its fight. Tribal nations across the U.S., from Minnesota to California, are increasingly asserting their sovereignty to protect water resources. Many have instated tribal ordinances to monitor polluters on their lands. Others are leveraging the federal Clean Water Act to implement their water quality standards, a tool to combat external pollution sources.

The U.S. Environmental Protection Agency (EPA) further boosted tribal efforts by allowing the Jamestown S’Klallam Tribe to set its water quality standards under the Treatment as a State (TAS) program. This program essentially equates tribes with states regarding certain water quality regulatory powers. To gain this status, tribes must demonstrate their jurisdiction over waters connected to or running through reservation and tribal trust lands.

Furthermore, the EPA is formulating baseline water quality standards for tribes without their own, ensuring that all native lands benefit from Clean Water Act safeguards.

Although tribes are making strides in establishing their standards and permit programs, there are challenges. These programs are expensive, time-consuming, and some tribes can’t afford them. Additionally, asserting sovereignty often leads to costly legal disputes with states that are hesitant to cede their permitting rights. Notably, only 84 out of the 574 federally recognized tribes have been recognized under the TAS program.

Nevertheless, momentum is building. The EPA eased the application process in 2016, leading to 22 tribes attaining TAS status since 2020. Tribes like the Keweenaw Bay Indian Community in Michigan and the Karuk Tribe in California have also recently received TAS status. Both are actively working towards defining water quality standards.

However, several tribes face challenges like the required expertise and staffing to manage a water quality program. Moreover, tribes in states resistant to tribal sovereignty or environmental norms may confront legal challenges from state governments and conservative factions.

As climate change and industrial activities threaten water sources, tribal nations are stepping up to protect their waters. By setting their standards or seeking TAS status, tribes can exert more control over their water resources. As these efforts gather pace, the EPA’s proposed baseline water quality standard seeks to shield tribal lands still not under TAS, thereby securing vast stretches of rivers, lakes, and reservoirs.