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Concerns over Indigenous rights increase as SCOTUS examines Clean Water Act

Published: Monday, November 7, 2022 - 5:05am

The U.S. Supreme Court is considering narrowing the Clean Water Act, a federal law that regulates pollutants in water and wetlands. Some have pointed to a disproportionate amount of harm a decision to narrow that scope could have on Indigenous communities.

Sandy Bahr, director for the Sierra Club's Grand Canyon chapter, said that existing factors like drought and existing projects that threaten Arizona's wetlands and waters make the Clean Water Act's protections that much more essential.

"In Arizona, we very much rely on the Clean Water Act," Bahr said.

She said this is especially true for ephemeral waters, which appear and flow with rainfall and make up the majority of Arizona's bodies of water.

Potential harm extends beyond the ecosystem, to Indigenous tribes’ legal rights. Stu Gillespie is a senior attorney with EarthJustice, a nonprofit environmental law firm.

"For centuries now, tribes have not had the seat at the table they should've had," said Gillespie, "and this is an opportunity that we’re making sure their voices are heard and that, I would hope, that they’re factored into any decision we see."

Gillespie filed an amicus brief on behalf of 18 Indigenous tribes, several of which are in Arizona.

"Narrowing the scope of the Clean Water Act would severely impact their rights, treaty rights, their rights to clean water, water quality protection on reservations, cultural resources," he said. "We outlined all those with on the ground examples."

Gillespie said that narrowing the Clean Water Act would have a ripple effect of consequences, like limiting tribes’ treaty rights.

Valinda Shirley is executive director of the Navajo Nation Environmental Protection Agency. The Navajo Nation has its own version of the Clean Water Act, but she said support from the federal government is still crucial to ensure protections and funding.

"On one side I am worried, but on the other hand I’m also looking to our laws," Shirley said. "It shouldn’t have to be that way, too, meaning that the federal government has this responsibility as well."

Shirley said she has begun looking at where gaps in existing policy might appear if the Navajo Nation has to step up where the federal government may not be able to.

"It’s a positive, too, because it kind of builds our capacity here on the Nation," she said, "but on the other hand, it also kind of limits us, meaning that I can imagine — and worry about — the amount of federal funding that might be impacted."

Shirley said she would like to see non-Native Americans support environmental protections, and the efforts of Indigenous environmental protection work.

Gillespie said he hopes that the brief will also act as an opportunity for Indigenous voices to be heard by the Court, and factored into their decision.

Environment Native American Affairs Water