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On Wednesday, September 27, 2023, the Senate Committee on Indian Affairs held an oversight hearing on Tribal water access. The hearing focused on the continuing water security challenges that Tribes and indigenous people face throughout the United States.

Disparities and underinvestment in water infrastructure between Native Americans and non-Native Americans in the United States have existed for decades.¹ These problems were brought to light during the pandemic when the Navajo Nation experienced the highest per capita COVID -19 infection rate in the country,² in part due to lack of water access.³ Committee members and witnesses shared figures and stories to illustrate the adverse impacts of water insecurity. Senator Murkowski highlighted, for example, that infants in the Yukon-Kuskokwim Delta are eleven times more likely to be hospitalized for respiratory infections and pneumonia compared to those with access to piped water.⁴

During the hearing, several efforts addressing water insecurity by Congress and the Biden-Harris Administration were mentioned, including the unprecedented amount of funding provided by the Inflation Reduction Act (IRA) and the Infrastructure Investment and Jobs Act (IIJA), Tribal water settlements, the Indian Health Service鈥檚 Sanitation Facilities Construction (SFC) Program, programs from agencies including the Bureau of Reclamation, and the . Witnesses were

quick to emphasize their appreciation for these efforts while also commenting on some of the challenges they faced when accessing those and other programs meant to address water insecurity.

For example, federal agencies and the intended beneficiaries of the programs discussed are limited in their ability to access funding provided by IIJA and the IRA. On the federal side, the influx of funding provided by IIJA 鈥渉as significantly increased the SFC workload. However, the IIJA limits funding for program support activities to 3 percent per year.鈥�⁵ The combination of the increased workload and the limit on program support activities, thus, could increase project durations beyond the time limits of IIJA鈥檚 appropriations. IHS estimates the average duration of a project at 3.6 years.⁶ Meanwhile, IIJA provides funding from FY 2022 through FY 2026.⁷ As a result, water infrastructure projects could run into the problem of insufficient funds. This was especially concerning to Senator Murkowski, who noted that projects in Alaska were unlikely to finish within the 3.6 year average, given supply chain issues and Alaska鈥檚 three month short construction season.8 Witness Benjamin Smith, Deputy Director of Indian Health Service also reported difficulties in workforce retention and recruitment.⁹

Witness Kali Watson, Chairman, Hawaiian Homes Commission, noted that one of the biggest hurdles in IIJA and IRA funds is the lack of parity. Specifically, Native Hawaiians are not eligible for some of the programs that received funding IIJA or IRA funding.10 The IHS-administered SFC Program, which uses federal funds 鈥渢o design and construct water, wastewater, and solid waste facilities,鈥�¹¹ received $3.5B from IIJA, but Native Hawaiians cannot access these funds because they are not eligible for the SFC.

Hurdles preventing Native Americans in the contiguous U.S from accessing IIJA funds were also discussed. Many Tribes, for example, lack the capacity to track and/or apply for all the funding opportunities made available across all the federal agencies that offer assistance for Tribal water infrastructure projects.¹² A report by the initiative, which strives towards 鈥渦niversal access to clean, safe drinking water for all Native communities in the United States,鈥�¹³ suggests that at least seven federal agencies offer funding for Tribal water infrastructure projects,¹⁴ all of which have their own requirements, deadlines, and amounts, with no guidance as to how these programs can fit together.¹⁵ Cost sharing requirements, which refers to project costs that cannot be funded by federal programs, present another burden in accessing federal programs.¹⁶

Other programs meant to improve access to water infrastructure are limited because of restrictions on the type of projects eligible for funding. IHS鈥檚 SFCP, for example, exists largely for inhome sanitation. Water infrastructure projects supporting Tribal economic development, however, are not eligible for funding under the SFCP or any other program.¹⁷ IHS has also declined to fund water infrastructure projects for community centers, such as schools, through the SFC Program.

Looming over the hearing is the ambiguity of the federal government鈥檚 trust responsibility to Tribes. Early in the hearing, Senator Schatz stated that ensuring access to water is 鈥渢he federal government鈥檚 trust and treaty responsibility.鈥�¹⁸ Contrary to the Supreme Court鈥檚 decision¹⁹, Senator Schatz said the United States must 鈥渓ive up to [its] promises and take affirmative steps to secure access to the best of [its] ability.鈥�²⁰ Bryan Newland, Assistant Secretary for Indian Affairs, Department of the Interior, stated that the United States 鈥渉as charged itself with the highest responsibility in trust,鈥�²¹ but stopped short of specifying what exactly that 鈥渉ighest responsibility,鈥� is.

Witnesses listed several potential solutions to address the aforementioned hurdles. Watson noted that the Native Hawaiian Home Lands Program would benefit from steady annual appropriations. Several bills that would help close the water access gap were also mentioned. Navajo Nation Council Speaker Crystalyne Curley mentioned , which would make it possible to fully implement commitments made by the federal government as part of the San Juan River Basin Water Rights Settlement.²² Curley, along with Heather Tanana, lead of the Universal Access to Clean Water initiative, stated their support for the (and companion bill, ), which would improve Tribal access to water infrastructure.

The approval of, and ongoing appropriations for, Indian water rights settlements was also listed as a means of supporting Tribal access to water since they, in part, facilitate 鈥渨ins鈥� between Tribes and other settlement parties. Water rights settlements also afford Tribes the opportunity to include provisions that would support Tribal economic development.²³ Although water rights settlement can be helpful on the ground, they are not without their own weaknesses. Tanana stated that settlements do not address the needs of all 574 federally recognized Tribes. By contrast, a court decision, like that in , by comparison, can create legal precedent that could apply more broadly to all Tribal nations, despite not being party to the suit. Furthermore, while settlements may include provisions for the construction of water projects, settlements may also involve the concession of Tribal rights, including giving up claims to the full amount of water to which they are entitled鈥攖he very thing that they are entitled to under the Winters doctrine.

Tanana noted that, especially in light of , Congress could reaffirm its trust responsibility to Tribes:

Congressional action affirming the federal trust duty is necessary to close the water gap in Indian country. In the wake of, the burden has been fully placed on Tribes. And some many say, 鈥淭hat鈥檚 just part of Tribal self-governance.鈥� But they鈥檙e wrong. Fulfillment of the federal trust responsibility is a necessary precondition to truly realize Tribal self-determination. Past federal policies sought to destroy and terminate Native existence. It created the inequalities that we鈥檙e experiencing today. And it鈥檚 imperative that the federal government remedy harms inflicted, but even more so, just hold up its end of the deal and honor healthy, permanent homelands.²⁴

Check out our previous blog post on the Tribal Access to Clean Water Act of 2023, where we outlined how its passage would facilitate Tribal access to clean water. For additional information about the Act, including its partners and supporters, check out .

Frannie Monasterio, Water Law Fellow at the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at the University of Colorado Boulder Law School, works with the and contributed to

¹ Benjamin Smith, Deputy Dir., Indian Health Serv., Water as a Trust Resource: Examining Access in Native Communities Written Testimony (2023), at 1, .
² Jesse Saffron, COVID-19 Shines Light on Navajo Water Contamination, Envtl. Factor (2020), .
³ Wilfred F. Denetclaw et al., Din茅 Navajo Resilience to the COVID-19 Pandemic, 17 PLoS Onee0272089 (2022), .
⁴ Oversight Hearing (Senator Murkowski).
⁵ Smith, supra note 1, at 6.
⁶ Id.
⁷ Indian Health Serv., Indian Health Service, Bipartisan Infrastructure Law (BIL) Funding, TribalConsultation (2023), at 7, .
⁸ Oversight Hearing (Senator Murkowski).
⁹ Oversight Hearing (Benjamin Smith, Deputy Dir., Indian Health Serv.).
¹⁰ Oversight Hearing (Kali Watson, Chairman, Hawaiian Homes Comm'n). GWC Blog: From the Baseline, Congressional Hearing Addresses Tribal Access To Clean Water
Oct. 18, 2023 4 Frannie Monasterio
¹¹ Heather Tanana et al., Universal Access to Clean Water for Tribes in the Colorado River Basin (2021), at 4, .
¹² Heather Tanana, Initiative Lead, Universal Access to Clean Water, Universal Access to Clean Water for Tribal Communities, Water as a Trust Resource: Examining Access in Native Communities Written Testimony (2023), at 10, .
¹³ Universal Access to Clean Water for Tribal Communities, (last visited Oct. 18, 2023).
¹⁴ Tanana et al., supra note 11, at 5.
¹⁵ Tanana, supra note 12, at 11.
¹⁶ Oversight Hearing (Senator Luj谩n).
¹⁷ Oversight Hearing (Crystalyne Curley, Speaker, Navajo Nation Council).
¹⁸ Oversight Hearing (Senator Schatz).
¹⁹ No. 21-1484 (U.S. June 22, 2023), 2023 WL 4110231, .
²⁰ Oversight Hearing.
²¹ Oversight Hearing (Bryan Newland, Assistant Sec'y for Indian Affairs, Dep't of the Interior).
²² Oversight Hearing (Crystalyne Curley, Speaker, Navajo Nation Council).
²³ Oversight Hearing (Crystalyne Curley, Speaker, Navajo Nation Council).
²⁴ Oversight Hearing (Heather Tanana, Initiative Lead, Universal Access to Clean Water). See e.g.,Treaty Between the United States of America and the Navajo Tribe of Indian art. XI, Sept. 9, 1849, 9 Stat. 974. See also Treaty with the Apache art. XI, July 1, 1852, 10 Stat. 979.