To Hunt, Fish, and Gather: Off-reservation Tribal reserved rights and the Clean Water Act

Abstract

The Environmental Protection Agency published the 2024 Tribal Reserved Rights rule to ensure states consider Federal Tribes’ off-reservation rights during triennial reviews of Water Quality Standards. The rule was notable for its acknowledgment of Traditional Ecological Knowledge. Given this milestone in a complex history of state, federal, and tribal relations regarding water resource management, we were motivated to conduct a retrospective analysis of how states have historically engaged with tribes. We analyzed the last 10-15 years of triennial water quality standard reviews in the U.S. states of Michigan, Minnesota, and Wisconsin. We investigated three research questions: 1. How do states differentially engage with tribes? 2. How are tribal water quality concerns represented in state responses? 3. How has Traditional Ecological Knowledge been considered? We found that the prioritization and recognition of Tribal concerns increased over time, according to review documents. However, treaties, off-reservation rights, Tribal subsistence use, and Traditional Ecological Knowledge were rarely mentioned. Tribal contaminant exposure was sometimes discussed, but actions were often low priority or delayed. States typically summarized concerns and did not always list authors, making it difficult to assess Tribal concerns. We found no evidence of Tribal consultation or state-engagement with Tribes holding rights outside state boundaries. Our findings affirm that the rule fills an important regulatory gap. However, it has limitations. To fulfill the intent of the rule and recognize Tribal sovereignty, we recommend: (1) building trust through transparent governance; (2) conducting state-Tribal consultation to streamline review processes; and (3) co-designing work plans for areas with reserved rights.