Excerpted From: Adam Crepelle, The Reservation Water Crisis: American Indians and Third World Water Conditions, 32 Tulane Environmental Law Journal 157 (Summer, 2019) (166 Footnotes) (Full Document)
The water crisis in Flint, Michigan, grabbed national headlines and produced immediate action. Indeed, federal legislators, high-ranking government officials, and even President Obama named the Flint water crisis as the primary catalyst for the Water Infrastructure Improvements for the Nation Act of 2016. As Senator Debbie Stabenow said, “The people of Flint have waited far too long for their water system to be fixed so they can have confidence that their water is safe!” However, American Indian communities have waited even longer for safe water.
Though oil pipelines have recently brought attention to tribal water supplies, Indian country water supplies have been insufficient and polluted for generations. For example, government officials knew the Navajo Nation's drinking water supply contained toxic levels of uranium for well over a decade, yet the Navajo Nation was not notified. In contrast to Flint, no federal resources were directed to the aid of the Navajo nor was there any national outrage. Sadly, the Navajo Nation is far from being the only tribe with water problems. Houses on many reservations lack running water and basic sanitation facilities like sinks, and many Indian country residents do not have access to safe drinking water. The remainder of this Article proceeds as follows:
Part II discusses the relationship between tribal sovereignty and tribal water rights;
Part III provides an overview of environmental law as it pertains to Indian tribes;
Part IV examines tribal authority under the Clean Water Act and the Safe Drinking Water Act;
Part V provides an overview of water quality in Indian country today; and
Part VI offers two paths to improve water quality and access on Indian reservations.
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As Americans become more concerned about drinking water safety, American Indians need to be included in the discussion. Tribes have established rights to adequate water supplies for their reservations, and Congress has authorized tribes to prosecute threats to their water. Nonetheless, the tremendous poverty that afflicts reservations leaves many tribes with a power they have no means to exercise. Congress or the Supreme Court can solve the water crisis in Indian country by affirming the tribal trust relationship. The United States has a sacred obligation to look after the welfare of tribes. Ensuring that tribes have access to safe drinking water should be foremost amongst the United States' duties as a trustee.
If the United States fails to address the safe water crisis in Indian country, tribes should turn to the international community. International law may not be binding in the United States; however, an international lawsuit over the terrible water situation in Indian country may shame the United States into addressing Indian country's water problem. It is well-known that the United States has broken numerous treaties with the tribes. Lesser known is that many American Indians in the contemporary United States lack access to water. An international lawsuit may bring light to the plight many Indians still endure. American Indians deserve access to water, and hopefully the international community will realize this even if the United States does not.
Adam Crepelle. Visiting Assistant Professor, Southern University Law Center; Appellate Judge, Pascua Yaqui Tribe.