Published: Feb. 21, 2024 By
Manuel Heart, Ute Mountain Ute Chairman

On Thursday, February 8, 2024, the Senate Committee on Indian Affairs held a Legislative Hearing to gather more information about several tribal bills,1 including S. 2385, the Tribal Access to Clean Water Act of 2023, which we have covered in a previous blog. It was the Committee’s first hearing in 2024.

Witnesses commenting on the Act included Melanie Anne Egorin, Assistant Secretary for Legislation the Department of Health and Human Services; Kathryn Isom-Clause, the Deputy Assistant Secretary of Indian Affairs within the Department of the Interior; and Manuel Heart, Chairman of the Ute Mountain Ute of Colorado.

Though several bills were raised during the Hearing, comments from Senators Bennet (D-Colorado) and Murkowski (R-Alaska) focused almost exclusively on the lack of access to water and water infrastructure experienced by Tribes.

Senator Bennet, who introduced the Tribal Access to Clean Water Act last year in July, highlighted that “only half of households on Native American reservations have clean water or adequate sanitation.”2 Senator Bennet

Manuel Heart, Ute Mountain Ute Chairman

stated the lack of water access “is completely unacceptable to me, and it should be unacceptable to every member of the United States Senate. No family in this country should have to raise their children without clean water. No member of a Tribe should have to accept circumstances none of us would accept for our own family.”3

Senator Murkowski raised concerns for water access for Alaska Native communities. Lack of access to indoor plumbing, she noted, impacts one in ten Native Americans in 2024, and is “one of our great public health challenges in rural Alaska and so many parts of the country.”4

Ms. Egorin of the Department of Health and Human Services, within which the Indian Health Service (IHS) is housed, acknowledged that “too many tribal families still do not have access to clean water and reliable wastewater infrastructure.” The Department is still reviewing the implications of the Act and has not expressed support but stated it “would like to continue to work with the bill sponsors and Committee to ensure compatibility with existing sanitation facility authorities, and determine the best way to serve non-eligible homes and commercial properties located within tribal communities.”5

Ms. Egorin also commented on S. 3022, the IHS Workforce Parity Act of 2023, as a means to help address staffing issues chronically experienced by the IHS. Although healthcare services and sanitation services are different programs within the agency, the two are related. Health and Human Services reported that “[t]he absence of clean water to sanitation facilities for tribal households exacerbate concern for the Indian Health Service Clinical Health Care Program” and that “[e]fforts by other public health specialists such as nutritionists and public health nurses are much more effective when safe water and adequate wastewater disposal systems are available in the home.”6 Furthermore, “[e]very $1 spent on water and sewer infrastructure will save $1.23 in avoided direct healthcare cost.”7

Ms. Isom-Clause, the Deputy Assistant Secretary of Indian Affairs within the Department of the Interior, also commented on the S. 2385 and some of the services offered by Interior programs that help address water security issues. The “Bureau of Reclamation’s Native American Affairs Technical Assistance Program or TAP,” for example, “provides technical assistance to Tribes to develop, manage, and protect their water and related resources” and supports “a broad range of activities, including water needs assessments, improved water management studies, water quality data collection assessments, and water measurement studies.”8

Though Interior has not expressly supported S. 2385,9 it “is committed to further developing this program in the coming years, including with the FY 2024 President's Budget Request of” $23.5 million.10

Ms. Egorin and Ms. Isom-Clause did not comment on water-related treaty obligations or trust responsibilities the United States has to Tribes.

Manuel Heart, Chairman of the Ute Mountain Ute of Colorado, poignantly stated, “[o]ne of the most significant issues facing the Tribe today is access to reliable, clean drinking water.” He detailed Ute Mountain Ute’s ongoing challenges in addressing water insecurity in both his oral testimony and prepared statement, highlighting the looming difficulties many western Tribes face when trying to access water. Chairman Heart supported S. 2385 as “a necessary first step to meeting . . . the United States’ treaty obligation and trust responsibility to Ute Mountain Ute people.”11

One of these hurdles is that the Ute Mountain Ute’s tribal lands span three states: Colorado, New Mexico, and Utah. The result is that Ute Mountain Ute must coordinate with each state individually as water issues surface.

In Colorado, the Ute Mountain Ute experience the dichotomy of paper water, the amount of water to which they are legally entitled, and “wet water,” the water that they actually receive.12 Under “the Colorado Ute Settlement Act of 2000,” the Ute Mountain Ute were guaranteed “16,525 acre-feet of water from the Animas-La Plata Project (ALP) at Lake Nighthorse. However, year after year, the Tribe has been unable to access its water due to the lack of water infrastructure connecting the ALP project to the Tribe’s reservation lands.”13 Ute Mountain Ute receive no compensation for leaving the water available from the Animas-La Plata.14

Meanwhile, in Utah, the Ute Mountain Ute White Mesa community is afraid to drink the water available to them because of a uranium mill located 2.5 miles north.15 “Presently the Tribe is in discussion with the state engineer of Utah in settling the Tribe’s water rights in White Mesa.”16

Beyond the aforementioned issues, tribal water infrastructure projects are plagued by capacity limits. Many projects, for example, require planning and design to become shovel-ready.17 Operations and maintenance after construction also remain a problem. Relatedly, Senator Murkowski noted a study by the Government Accountability Office “to examine the operation and maintenance issue in greater detail.”18

Although not mentioned directly in this Hearing, parity to access Bipartisan Infrastructure Law (BIL) funding is another issue for other North American Indigenous communities. Senator Bennet hinted at it when he “welcomed the Committee’s feedback on how to approve this legislation so we can ensure Native Hawaiians and Alaska Natives and Tribes across the country can access Bipartisan Infrastructure Law funds to guarantee reliable access to clean water.”19 The issue was also raised during the Committee’s Oversight Hearing on Water as a Trust Resource, held in September 2023, when Mr. Kali Watson, Director the Department of Hawaiian Home Lands, stated that Native Hawaiians were not eligible for BIL funds for water and other infrastructure needs.20

The relationship between Tribes and the federal government creates additional, unique hurdles for accessing clean water. Senator Murkowski recalled the September Hearing “on the trust responsibility of providing for water and sanitations needs for those in our Native communities” and noted “the significance, the importance, [and] the responsibility to deliver clean, affordable water to our Native communities.”21 Senator Bennet stated that the lack of water infrastructure “is particularly egregious because it is a direct consequence of the federal government’s failure to honor promises and treaties made to Tribes across this land.”22 Although raised at the September hearing, no federal legislative responses appear to be in sight for the time being.

The Committee is leaving the record open for two weeks after the Hearing for additional questions and comments about the bills. Ideally, the Committee’s next step would be to markup S. 2385, at which point Committee members would consider possible changes, before moving the bill to the Senate floor.23

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 the Universal Access to Clean Water’s page.

List of Resources

 

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1 See Thomas P. Carr, Cong. Research Serv., 98-317, Types of Committee Hearings 1 (2018), https://crsreports.congress.gov/product/pdf/RS/98-317.
2 Legislative Hearing to Receive Testimony on S. 2385, S. 2868, S. 3022, S. 2796 & S. 3230, Senate Committee on Indian Aff. (Feb. 8, 2024), https://www.indian.senate.gov/hearings/legislative-hearing-to-receive-testimony-on-s-2385-s-2868-s-3022-s-2796-s-3230/ [hereinafter Legislative Hearing], at 43:24
3 Id. at 43:53.
4 Id. at 22:32.
5 Id. at 31:40.
6 Dep’t of Health & Human Servs., Fiscal Year 2024, Indian Health Service Justification of Estimates for Appropriations Committee (2023), at p. CJ - 219, https://www.ihs.gov/budgetformulation/congressionaljustifications/.
7 Dep’t of Health & Human Servs., Fiscal Year 2024, Indian Health Service Justification of Estimates for Appropriations Committee (2023), at p. CJ - 210, https://www.ihs.gov/budgetformulation/congressionaljustifications/.
8 Legislative Hearing at 33:00.
9 Id. See also Kathryn Isom-Clause, Statement (2024), https://www.indian.senate.gov/hearings/legislative-hearing-to-receive-testimony-on-s-2385-s-2868-s-3022-s-2796-s-3230/2024-02-08-hrg-testimony-isom-clause/.
10 Legislative Hearing at 33:44.
11 Id. at 37:03.
12 Kelly Mott Lacroix et al., Wet Water and Paper Water in the Upper Gila River Watershed (2016), at 3, https://wrrc.arizona.edu/sites/wrrc.arizona.edu/files/attachment/Wet-Water-Paper-Water.pdf.
13 Legislative Hearing at 38:34.
14 Id.
15 Id. at 40:40. See also Manuel Heart, Statement (2024), at 2–4, https://www.indian.senate.gov/hearings/legislative-hearing-to-receive-testimony-on-s-2385-s-2868-s-3022-s-2796-s-3230/2024-02-08-hrg-testimony-heart/.
16 Legislative Hearing at 40:40.
17 Id. at 44:49.
18 Id. at 24:43.
19 Id. at 46:15.
20 Oversight Hearing on “Water as a Trust Resource: Examining Access in Native Communities”, Senate Committee on Indian Aff. (Sept. 27, 2023), https://www.indian.senate.gov/hearings/oversight-hearing-on-water-as-a-trust-resource-examining-access-in-native-communities/.
21 Legislative Hearing at 22:59–25:36.
22 Id. at 43:53.
23 Valerie Heitshusen, Cong. Research Serv., R42843, Introduction to the Legislative Process in the U.S. Congress 4 (2020), https://crsreports.congress.gov/product/pdf/R/R42843.