Excerpted From: Robin Kundis Craig, Tribal Water Rights and Tribal Health: the Klamath Tribes and the Navajo Nation During the Covid-19 Pandemic, 16 Saint Louis University Journal of Health Law & Policy 35 (2022) (183 Footnotes) (Full Document)


RobinKundisCraigPublic health measures to combat COVID-19 required individuals to be able to access fresh water while remaining isolated from most of their fellow human beings, especially in the first year (roughly March 2020 to March 2021) before vaccines became widely available. This access was not a problem for most Americans. As researchers summarized in 2021:

The United Nations Sustainable Development Goals Tracker, which tracks progress toward meeting Sustainable Development Goal Number 6--calling for universal access to potable water and sanitation for all by 2030--estimates that 99.2% of the US population has continuous access to potable water and 88.9% has access to sanitation. By percentages and the lived experience of most Americans, this appears accurate. The American Community Survey shows that from 2014 to 2018 only an estimated 0.41% of occupied US households lacked access to complete plumbing--meaning access to hot and cold water, a sink with a faucet, and a bath or shower.

However, given the size of the United States, 0.41% is not a trivial number of people left struggling to comply with pandemic protocols, but instead “corresponds to 489,836 households spread unevenly across the country ....” Thus, “millions live in counties where more than 1 out of 100 occupied households lack complete plumbing,” and “more than two million Americans live without running water and basic indoor plumbing, and many more without sanitation.”

Many of these people are Native Americans. This pervasive inequity for Native Americans was recognized as a significant public health issue even before the pandemic. Indeed, “because reservations are less likely to have clean and reliable water, [Native Americans] experience higher mortality, poverty, and unemployment rates.” “Native American households are 19 times more likely than white households to lack indoor plumbing,” with the result that “58 out of every 1,000 Native American households lack complete plumbing, as opposed to three out of every 1,000 white households.” Native Americans are also significantly less likely to have access to indoor running water than Black or Latinx people. Finally, socioeconomic status is largely irrelevant to Native American access to water; instead, Native Americans “are equally likely to lack complete plumbing whether they are high- or low-income, and whether they live in urban or rural areas.”

The problem of legal access to water often only exacerbates the household water access issue for Native Americans who live on a federally established reservation for one of the 574 federally recognized Tribes. To use and consume water in the United States, a person, government, or business entity must have a water right, and the acquisition and exercise of these water rights are the primary focus of water law. Unless they have their own wells, most households get their water from municipal utilities, which, as of 2015, serve about eighty-seven percent of the U.S. population. Thus, it is generally these public water supply utilities (not individual households) that hold the relevant water rights to provide household drinking water, and for most water utilities these water rights derive from the relevant state's water law.

For many Native Americans, however, the rules for drinking water access are different. Federally recognized Tribes get their water as a result of a special kind of right: a federal reserved water right, also known as a Winters right. Moreover, while most states have well-defined procedures for applying for or recognizing a water right, Winters rights are a U.S. Supreme Court construction with no accompanying federal administrative apparatus. As a result, most Tribes must both reify and quantify their otherwise amorphous Winters rights before they can even think about providing water to the households within their reservation borders. Making Winters rights usable, in turn, generally requires either litigation or a water rights settlement with the relevant state.

To highlight the critical role that water rights played in Tribes' capacities to cope with the COVID-19 pandemic, this Essay compares the Klamath Tribes in Oregon, who after forty years of litigation have relatively securely established themselves as the senior water rights holders in the Klamath River Basin, to the Diné (Navajo) Nation, whose reservation--the largest in the United States, covering well over 27,500 square miles of Arizona, Utah, and New Mexico--largely lacks quantified water rights or the means to deliver water to households. This Essay proceeds in four parts. Part II reviews the public health mandates and recommendations that made individualized household access to water particularly critical during the COVID-19 pandemic. Part III provides a short primer on Winters rights and the difficulties that Tribes can face in actualizing those rights. Part IV then actively compares the Klamath Tribes to the Diné, providing background on the status of their Winters rights before assessing the Tribes' capacity to adequately respond to the COVID-19 pandemic. This essay concludes that, while access to water was not the sole factor in these two Tribes' vastly different experiences with COVID-19, it was an important one, underscoring the need for states and the federal government to finally acknowledge and quantify the water rights that Tribes have been legally guaranteed since the Supreme Court's 1908 Winters decision.

[. . .]

As the plight of the Navajo, the 2022 Navajo-Utah Water Rights Settlement, and the Ninth Circuit's 2022 decision in Navajo Nation v. U.S. Department of the Interior all suggest, the coronavirus pandemic highlighted the importance of tribal access to water in promoting and preserving the health of Native Americans. That access, in turn, often starts with securing and implementing tribal water rights. While the final outcome of the Navajo Nation's quest for Colorado River Basin water--as limited as that supply is becoming--may turn on future decisions of the U.S. Supreme Court, the Ninth Circuit's decision to tie the federal government's tribal trust duties to Winters rights provides a new pathway to invigorating those rights. Regardless of the future outcome of that particular case, however, COVID-19 made clear that Native American Tribes need their water rights, and they need them now.

Robert C. Packard Trustee Chair in Law, University of Southern California Gould School of Law, Los Angeles, CA.