ON A SNOWY MARCH DAY, Dana Leigh Thompson walks along a chain link fence that blocks access to a decommissioned General Motors (GM) plant located along the banks of the St. Lawrence River in Akwesasne, New York, just south of the United States-Canada border. She points out a little tidal inlet, still frozen over, where she and other members of the Akwesasne Mohawk tribe used to teach their children to swim. “People call it Contamination Cove,” she says with a sardonic grin.

Thompson used to live right next to this plant — on the 25,712-acre St. Regis Mohawk Reservation that abuts the roughly 218-acre industrial site — along with her kids, her husband, Larry Thompson, and his extended family, including his three brothers, sister, nieces, and nephews. The property has been in Larry’s family since his great-great-grandfather’s time. Like most folks who live on the reservation, Thompson and her family grew up swimming and fishing in the Lawrence and Raquette rivers (the latter flanks the industrial site on the south side), and growing vegetable gardens irrigated with water from the river and groundwater. The Akwesasne Mohawks are a riverine tribe, after all. Their community has relied for generations on the abundance of fish in the waters around them and on the region’s fertile alluvial soil to grow produce. They had never given a second thought to the safety of the waters that sustained them. For Thompson, that changed one day in 1985, when people started appearing on the family property.

“I asked what they were doing, and they looked at me like something was wrong with me.”

“All these scientists and researchers start showing up with briefcases at our house and asking for permission to go on our property so they could test the water, test the turtles, test the shrews, so on, so forth,” she recalls. “I asked what they were doing, and they looked at me like something was wrong with me.”

That was when Thompson first learned that she and her family had been exposed to dangerous toxins for decades. “They went on to explain to me, they seemed kind of shocked [that I didn’t know], that this was one of the biggest Superfund sites in the United States for PCBs.”

The US Environmental Protection Agency (EPA), she learned, had declared the old GM plant a Superfund site a year ago, in 1984, and placed it on the National Priorities List (a list of Superfund sites so contaminated as to require further investigation and significant cleanup). GM — which used the plant for aluminum die-casting from 1959 to 1980 — had been dumping untreated, contaminated wastewater and sludge from the process into unlined tailings ponds onsite. The waste included cancer-causing polychlorinated biphenyls (PCBs), phenol, and other volatile organic compounds, large volumes of which had leached into the soil. The waste had also contaminated groundwater at the facility and on the reservation, as well as sediments in the St. Lawrence, Raquette, and Grasse rivers, which run along and through the reservation, and other local creeks and waterbodies too.

In 1987, Thompson and her immediate family moved to a new place on the reservation a few miles further from the site to avoid exposure. The rest of her extended family continues to live, fish, and farm on the family property. The reservation, which is home to some 11,000 people, and also happens to be downwind and downriver from two more state Superfund sites — the abandoned Reynolds Metals and Aluminum Company of America (ALCOA) factories. The combined pollution load from these three sites has taken a huge toll on the Akwesasne, who have higher than acceptable levels of PCBs in their bodies, and suffer from all kinds of ailments, from cancers to birth defects to mental health and reproductive issues, also at higher-than-average rates.

After nearly four decades and millions of dollars of remediation work on these three sites, in 2015, the EPA said that the waters of the Lawrence, Grasse, and Raquette rivers meet New York State’s clean water quality standards and are safe for use.

The St. Regis Mohawk disagree. They say that, though tons of toxic waste have been removed from these locations over the years, much more remains. That includes the waste in a 12-acre landfill on the former GM property that was capped with a layer of clay and planted with trees and grass.

“Their idea of cleanup more or less is cover up. It’s not really a cleanup,” says Thompson. Thompson and her husband have since “separated” from the tribe over disagreements, but tribal police officer Willie Ransom echoes this sentiment. He was on the crew tasked with cleaning up the General Motors plant in the early 2000s. “Listen, it didn’t work. The stuff they had us do. It didn’t work,” he says.

Others agree, including David Tracy, a water biologist with the tribe, who says he still finds “sturgeon, tons of catfish, even bass, with the tumors and whatnot” in parts of the St. Lawrence River downstream from the GM site. “I wouldn’t trust eating anything from this part of the river,” he says.

The St. Regis tribal council has long been demanding the complete removal of all contaminated materials from the reservation’s watershed. It wants the water quality in its territory to meet the tribe’s more stringent clean water standards — standards that the tribe has the right to set under the Clean Water Act. But given the confusing morass of overlapping state, federal, and tribal jurisdictions over rivers and watersheds in this country, asserting this right has proven incredibly difficult, not just for the Akwesasne, but for most other tribes across the nation as well.

THE CLEAN WATER ACT (CWA) is the key federal law governing water pollution in the United States. Administered by the EPA, it seeks to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters” by regulating and, ideally, eliminating discharge of pollutants into those waters.

The act gives states the authority to regulate pollution from “point sources,” such as industrial discharge pipes. While the EPA sets the baseline water quality standard (WQS) for each of these water bodies, states have the right to set higher standards for rivers, streams, wetlands, and marine waters that fall within their jurisdictions if they wish to do so. And since water pollution does not check in at the border, if a state has a more stringent water quality standard than its upstream neighbor, the law requires the upstream jurisdiction attain and maintain downstream standards.

Many tribes too, have this right. A 1987 amendment to the act, known as Section 303, allows tribes to set their own water quality standards. The EPA estimates that about 300 of the 574 federally recognized tribes have formal or informal reservations, making them eligible for setting their own WQS. But in order to do so, they must first apply for “Treatment as a State” (TAS) with the EPA. So far only 15 percent of the eligible tribes, about 40, have completed the process of obtaining TAS status. (These figures don’t include the hundreds of tribes that lack federal recognition due to size, resources, geographical concentration, or a host of other factors.)

Meanwhile, since the law also recognizes that states “lack regulatory authority over Indians in Indian country unless clearly authorized to do so,” EPA-approved state water quality standards do not apply to Indian lands. Tribal treaty rights also supersede EPA jurisdiction, so the agency doesn’t set baseline WQS for reservations. As a result, apart from the rivers and streams on the lands of 40 tribes that have set their own standards, bodies of water on Indian reservations do not have any enforceable water quality standards under the CWA.

Setting and enforcing water quality standards require resources that many tribes do not possess.

This regulatory gap poses a significant environmental justice concern since it means people living on reservations have fewer environmental protections than those living in any other part of the country. Given that most tribal nations look to their local land and waters for food, livelihood, and cultural sustenance, the lack of access to clean water has significant biocultural implications as well.

INDIGENOUS RIGHTS ACTIVIST Julia Bernal, whose community at the Sandia Pueblo reservation in New Mexico has gone through the “paperwork intensive” process of setting its own WQS, says eligible tribes probably hesitate to seek TAS status for capacity reasons.

Setting and enforcing water quality standards require resources and infrastructure that many tribes do not possess, says Bernal, who is the director of the Pueblo Action Alliance, a grassroots organization that protects the Pueblo people’s cultural sustainability. In addition to the lengthy process of applying for TAS status, tribes need a dedicated department for managing water resources and restoration programs, an administrative team for filing paperwork and making frequent reports to the EPA, a legal team to manage possible litigation, and quite a bit of funding. Essentially, Bernal says, they need every structure required of bigger and better-funded state environmental departments.

The low number of TAS-approved tribes could also stem from a lack of awareness about contamination issues, adds Bernal. “It could also be [a tribe thinking]: Well, were not really seeing any impacts to our watersheds, so is there a need?” she says.

Additionally, many tribes have avoided issuing their own water standards due to a fear of lawsuits from states challenging their sovereignty, notes James Grijalva, director of the Tribal Environmental Law Project at the University of North Dakota School of Law. “Some states still resent the presence of Indian country within their borders and their limited authority there, and robotically react to tribal exercises of governmental authority with taxpayer-funded lawsuits,” he writes in a report published last year in the Harvard Environmental Law Review.

The Sandia Pueblo, a 22,877-acre reservation of the Sandia people on the banks of the Rio Grande and downstream from Albuquerque, sought to regulate its own waters in 1993 because the Sandia use the Rio Grande waters not only for daily household use but also for agriculture, fishing, and traditional ceremonies as well. Which means they are exposed to water pollution at a higher frequency than the general population. “There are all these water utilities all along the Rio Grande that collect wastewater, treat the water, and then release that effluent back into the main tributary, and, you know, that’s not a 100 percent cleaning process,” Bernal says. So “the need was to hold the urban areas that are upstream of us accountable for their own water quality standards,” she says. The best way for the tribe to do that was to set its own standards, which would then be enforceable against upstream jurisdictions.

But enforcing the water quality standards of an independent tribal nation can be incredibly hard given both the regulatory framework within which they have to operate, and the fact that they share that water with the states that, more often than not, have different needs and economic interests.

In Upstate New York, those economic interests have largely been informed by industry giants like GM and Reynolds, who lobbied for states to lower pollution-control standards in order to lower their overhead costs. The St. Lawrence River is also the gateway to the Atlantic from Lake Ontario, so the Mohawk must contend with water quality degradation from the Great Lakes shipping industry as well. Abraham Francis, the Akwesasne’s environmental services manager, says when that level of industry is moving through their waters there is only so much anti-degradation that is even possible. So, though the Akwesasne have set higher WQS, in reality enforcing them is nearly impossible. Additionally, the St. Lawrence marks the border between the US and Canada in Akwesasne, and the reservation literally straddles that border — a portion of the reservation is in Canada. That adds an extra level of complexity when trying to enforce WQS.

For the Sandia Pueblo the challenge has come from the state of New Mexico. Sandia, along with Isleta Pueblo, which is located farther downriver along the Rio Grande — were the first reservations in the US to seek to set their own water quality standards in the 1990s. The two pueblos lie on opposite sides of Albuquerque, which discharges huge volumes of wastewater into the Rio Grande. Back then that wastewater included significant concentrations of ammonia and arsenic. New Mexico contested the EPA’s approval of the pueblos’ Treatment as a State requests on several grounds, including questioning whether the pueblos were actually reservations, the demarcation of Sandia Pueblo’s legal boundary along the Rio Grande, and whether tribal water standards can be more stringent than state standards. The state argued that maintaining Isleta Pueblo’s higher WQS would require Albuquerque to make unfairly expensive improvements to its wastewater treatment facility. After five years of legal wrangling, the courts eventually sided with the pueblos, saying that the Clean Water Act’s vision was to restore the country’s waters to prior non-polluted conditions, not just maintain status quo.

Tribal rights were held up in this case, but as Grijalva notes, the possibility of legal attacks from well-funded state and industry interests have had a chilling effect on many tribes’ interest in establishing their own WQS.

Past experiences like these are why “a lot of our work has been around what it’s going to take in order to shift the water paradigm.” Bernal says. “We’re living in this prior appropriation paradigm that really does look at water more as a commodity rather than a living entity that gives life and provides abundance and so many other ecological services to watersheds.”

Under the existing paradigm, states are supposed to set water quality standards based on how humans and aquatic species use and interact with particular water bodies.

“When a state or tribe goes about setting water quality standards, they have to factor in the designated uses for a body of water, i.e., recreation, agriculture, propagation of wildlife, etc., and criteria to protect those uses,” explains Rachel Conn, deputy director of Amigos Bravos, a water conservation organization in Taos, New Mexico.

Setting a cap on how much of a particular pollutant each body of water can contain, or what is called, ironically, “safe levels of contamination,” is a game of averages, based on a calculation of an average rate of consumption. That calculation relies on an estimate of, among other things, an average human’s body weight, the amount and type of fish eaten, and a pollutant’s bioaccumulation in a state’s waterways.

However, in most cases, the ceilings drawn up by states are insufficient to ensure the safety of even the general population, let alone marginalized Indigenous communities with deep traditional practices of living off the land, people who also experience disparities in access to quality healthcare and who often live in close proximity to pollution sources and Superfund sites. (The Inter-Tribal Environmental Council estimates that 380 of the nation’s 1,344 Superfund sites, about 28 percent, are located on or near Indian country. This number doesn’t even include the hundreds of additional state-designated Superfund sites.)

“We’re living in this ... paradigm that really does look at water more as a commodity rather than a living entity.”

Take the estimate on the rate of consumption of fish, often a key source of toxins moving up the food chain and into human bodies: Up until the early 2000s, the EPA recommended that WQS be based on the laughable expectation of a maximum consumption of 6.5 grams of fish per day. That’s roughly one scallop per week and maybe a spoonful of canned tuna as a weekend treat. The average salmon filet you’d order at a restaurant, meanwhile, weighs 142 grams, nearly 22 times that amount. The EPA has since raised that rate to 175 grams a day, or roughly 43 ounces a week, which still leaves hundreds of thousands of people who consume more seafood than that at risk.

States, of course, can set WQS based on their own independent calculations regarding average consumption of locally caught fish. For example, the average person in Arizona, an inland state, will likely eat a lot less locally-sourced fish than the average person in Maryland, a coastal state. Thus, concentrations of dangerous pollutants can be higher in the Arizona fish without raising as many health risk alarms. But even here, the calculations states make regarding average fish consumption tend to be notoriously low.

In Washington state, for instance, the WQS is based on an average fish consumption rate of 175 grams per day. But research on fish consumption by the state’s own Department of Ecology’s in 2012 revealed that up to 380,000 Washington adults eat over 250 grams of fish per day, and at least 29,000 children, who have greater sensitivity to many toxins, eat over 190 grams per day.

Wagers like this are potentially deadly for Native communities, given that contaminated water is pervasive in Indian Country, and all tribes living next to waterways consume fish and other water-based foods at higher rates than the average US population. Tribes in Washington state, whose diets are heavily reliant on salmon, for example, eat an average of over 700 grams of fish per day. Plus they may be subject to additional exposure through cultural practices that involve swimming in or drinking from these waters.

A large portion of the Akwesasne people’s diets, for instance, historically consisted of fish from the rivers and produce from the farms surrounding the St. Regis reservation. Turtle soups, made with turtles harvested from Snye Marsh, a huge marsh linked to the St. Lawrence and Grasse rivers that runs through the reservation, is still hugely popular. Within the reservation, home vegetable gardens irrigated with water from nearby rivers and streams are everywhere. Produce from these gardens is shared with community members and among families. Tribe biologists regularly test the waters and put out advisories telling people to stop eating the fish from certain areas where pollution levels are high, but they say that isn’t enough to protect their people from harm.

Research on the tribe’s health validates these concerns. A series of long-term studies of the St. Regis Mohawks by David Carpenter and Lawrence Schell of the University of Albany’s School of Public Health has shown higher-than-normal PCB levels in the breast milk of Akwesasne nursing mothers, most likely from consuming fish and game in and around the St. Lawrence River. More recently, they found adolescent Akwesasne (ages 10 to 17) had twice the levels of PCBs in their bodies as the national average, which was impacting their thyroid hormone levels and could have serious developmental implications.

Abraham Francis, environmental services manager for the Mohawk Council of Akwesasne, the council for the Canadian Akwesasne, says that, in addition to the dire health impacts, the constant monitoring and restrictions on using their land and waters has taken a toll on the tribe’s biocultural relationship with their land. “We’ve lost pieces of our language; we’ve lost values; we’ve lost some of the ways that our intergenerational knowledge transfer occurs,” he says.

THERE IS SOME EFFORT underway by the Biden administration to address the historical inequalities around water access and quality in tribal communities. To that effect, last year, the EPA’s Office of Water released an action plan entitled “Strengthening the Nation-To-Nation Relations with Tribes to Secure a Sustainable Water Future,” which Assistant Administrator for Water Radhika Fox says, “provides a blueprint for EPA to better understand the water challenges facing our Tribal partners and to identify the best tools to make progress.”

The goals of the action plan include increasing infrastructure funding and capacity development for tribal environmental programs, building more meaningful consultation with tribes, ensuring the protection of tribal water rights, and establishing federal baseline water quality standards for reservations.

“EPA is exploring ways to ensure that the federal baseline WQS would be protective of tribal uses and cultural practices that may lead to heightened exposures relative to non-tribal populations,” says EPA spokesperson Melissa Sullivan. In terms of the threat to tribal waters from Superfund sites and upstream polluters, Sullivan says the agency’s goal is enforcement. If the tribal water quality standards are stronger than those of a surrounding state, the state has to foot the bill for maintaining the necessary standards for the people downstream, she says.

“It really does take communities to hold these agencies accountable.”

The EPA aims to accomplish these goals within three years. Safeguarding the health of tribal lands and people, though, is an ongoing process. Which is why activists like Thompson and Bernal — who are fighting to ensure that Indigenous ecological knowledge is incorporated into water management solutions — say educating their own communities about their rights as independent nations — including the right to set their own water quality standards — is key to their thriving.

“It really does take communities to hold these agencies accountable,” Bernal says. “We can’t just be so blindly supporting certain actions coming out of them because a lot of their decision-making processes haven’t been good in terms of meaningful tribal consultation ... That’s why I feel so strongly that educating communities is really what will allow our people to hold industries, agencies, whomever it is, accountable.”

Over in New York, Dana Thompson sits at the window of her home office, a few miles from the Superfund sites. Her husband, Larry, is at home too, feeling under the weather. He suffers from several health complications from years of working as an ironworker and a lifetime of exposure to toxins from living on the reservation. Like his wife, he is frustrated at the inadequate cleanup of the sites. A few years ago, he was jailed for driving his backhoe through the fence of the GM site and trying to dig up the toxic landfill and remove the waste himself.

“You know, everybody’s dream is to have a home,” Thompson says. “You don’t want your dream to turn into a nightmare.”