In long-sought change, states must consider tribal rights when crafting water rules

By Alex Brown

In the 1800s, the Fond du Lac Band of Lake Superior Chippewa joined other tribes in signing a pair of treaties with the federal government, giving up massive swaths of land in return for the creation of a reservation in eastern Minnesota. The treaties included a guarantee: Tribal members would be able to return in perpetuity to the lands they were signing away to gather wild rice, known as manoomin.

“There’s a recognition that [manoomin] is a relative that figures very prominently in the Ojibwe migration story,” said Nancy Schuldt, water projects coordinator with the environmental program for the Fond du Lac Band of Lake Superior Chippewa. “It is one of the hallmarks of the how and the why [that] the Ojibwe people found themselves migrating to the western Great Lakes.”

Retaining the right to harvest manoomin allowed tribal members to maintain a connection to their ancestral lands, even as they were forced to live within reservation boundaries. But wild rice is very sensitive to environmental conditions, and the tribe found that sulfate pollution from nearby mining threatened the waters on which their harvest depended.

The tribe fought for decades to get the state of Minnesota to issue water quality standards to protect wild rice and, later, to enforce those standards. But Wisconsin, where the Fond du Lac Band also retains harvesting rights in certain areas, has been much slower to enact similar protections.

Tribal leaders are hopeful that a new federal rule will change that.

This May, the U.S. Environmental Protection Agency issued a revision to the Clean Water Act that requires states to consider tribal treaty rights when crafting water quality regulations. The rule could protect resources such as wild rice, sturgeon, salmon and shellfish.

While many tribes have issued pollution standards for waters within their own boundaries, the federal rule will cover off-reservation landscapes on which Native people still exercise hard-won rights to hunt, fish and gather. Such areas cover millions of acres mapped out in dozens of treaties, concentrated especially in the Great Lakes and Pacific Northwest.

State regulators have long been tasked with setting water quality standards for those areas. Now, the new rule directs them to consider the treaty-protected aquatic species that depend on those waters. For instance, states may be forced to lower pollution thresholds in some waters to account for the fact that tribal members who practice subsistence lifestyles consume fish at higher rates than the general public.

Daniel Cordalis, an attorney with the Native American Rights Fund, a tribal advocacy group, said tribes have long been frustrated with some state regulators for setting regulations without tribal input.

“Tribes have been asking for this for a long time,” he said. “These are federally based rights that need to be incorporated into the calculus as you’re developing or revising a water quality standard.”

Washington state’s experience

In Washington state, a landmark court decision in 1974 forced the state to recognize tribal fishing rights, and entitled tribal members to half of the harvestable catch. Officials with the Washington State Department of Ecology say they have a formal process for reaching out to tribal governments whenever they propose a new rule.

In 2009, agency leaders began a dialogue with tribes over the state’s human health criteria. The agency had long relied on baseline federal figures — meaning pollution limits were set on an assumption that residents eat 6.5 grams of fish per day.

After discussions with tribal groups, however, officials determined that the baseline figure was too low to protect tribal members whose diets are heavy in salmon and other culturally important aquatic species. Higher consumption rates made tribal members vulnerable to accumulations of mercury and other contaminants that fish can pick up in polluted water.

“We knew it needed to be updated and be reflective of fish consumption that was really happening in Washington state by tribes,” said Melissa Gildersleeve, who oversees water quality standards for the agency. “We’ve gotten used to that conversation around tribal data.”

In 2016, Washington state issued new criteria based on a consumption rate of 175 grams per day, nearly 30 times the previous assumption. Because of tribes’ right to harvest fish, waters throughout the state gained extra protections in order to ensure that right could be exercised safely.

But other states have been more resistant, with a dozen joining a lawsuit seeking to get the new EPA rule thrown out. They argue that it treads on states’ delegated authority to set standards under the conditions laid out in the Clean Water Act, putting tribal interests before states’ judgment. The lawsuit also asserts that treaty rights are guarantees made by the federal government, and putting the onus on states to validate and uphold those rights gives them a near-impossible task.

“This starkly conflicts with the [Clean Water Act’s] specific recognition, preservation, and protection of the States’ primary right and responsibility to establish designated uses and consequent water quality standards,” the plaintiffs wrote.

The states challenging the rule are Alaska, Idaho, Iowa, Louisiana, Montana, Nebraska, North Dakota, South Carolina, South Dakota, Texas, Utah and Wyoming.

Tribal leaders say that Idaho and other states in the case have long ignored tribes’ attempts to have their rights considered. They say the rule is necessary because states have demonstrated that they won’t listen to tribes unless they’re forced to.

“Historically, it’s taken litigation to get states to recognize tribes’ rights, and that’s really expensive,” said Gussie Lord, managing attorney of the Tribal Partnerships Program with Earthjustice, an environmental law group. “This provides a framework for a process that has been divisive and adversarial.”

Restoring flows

Some other tribal advocates believe the rule, if upheld, could represent a massive shift. They note that pollution isn’t the only factor preventing the exercise of their rights. In some areas, irrigation for agriculture or the construction of dams have reduced water flows in rivers and choked off fish populations.

“This could be one tool in restoring the flows back into these waterways,” said Ken Norton, chair of the National Tribal Water Council, a tribal advocacy group.

The states opposing the rule fear the same outcome, arguing that it would conflict with states’ authority to delegate water rights.

The rule could also require states to set higher standards even in waters where treaty rights aren’t currently being exercised. If tribes aren’t harvesting fish in a river because it’s polluted, states must consider what the harvest might look like if poor water quality didn’t prevent tribes from exercising their right.

The EPA did not grant an interview request to discuss the rule and its implications.

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