Robin Kundis Craig has posted “Tribal Water Rights and Tribal Health: The Klamath Tribes and the Navajo Nation During the COVID-19 Pandemic” on SSRN. The paper is forthcoming in the St. Louis University Journal of Health Law & Policy.

The abstract:

Public health measures to combat COVID-19, especially in the first year before vaccines became widely available, required individuals to be able to access fresh water while remaining isolated from most of their fellow human beings. For the approximately 500,000 households in the United States and over two million Americans who lacked access to reliable indoor running water, these COVID-19 measures presented a considerable added challenge on top of the existing risks to their health from an insecure water supply.

Many of these people were Native Americans, whose Tribes often lack fully adjudicated, quantified, and deliverable rights to fresh water. To highlight the critical role that water rights played in Tribes’ capacities to cope with the pandemic, this essay compares the Klamath Tribes in Oregon, who after 40 years of litigation have fairly 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—covers well over 27,500 square miles of Arizona, Utah, and New Mexico but largely lacks quantified water rights or the means to deliver water to households. 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 stop procrastinating in actualizing the water rights for Tribes that have been legally recognized since 1908.