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MEANINGFUL INVOLVEMENT AND FAIR TREATMENT BY TRIBAL ENVIRONMENTAL REGULATORY PROGRAMS
NEJAC November 2004
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MEANINGFUL INVOLVEMENT AND
FAIR TREATMENT
BY
TRIBAL ENVIRONMENTAL REGULATORY
PROGRAMS
A Report of the
National Environmental Justice Advisory Council
Prepared by
The National Environmental Justice Advisory Council
Indigenous Peoples Subcommittee
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National Environmental Justice Advisory Council
Indigenous Peoples Subcommittee (IPS) Members:
Terry Williams, The Tulalip Tribes Fisheries & Natural Resources, Maryville, Washington Chair)
Charon Asetoyer, Honor the Earth, Lake Andes, South Dakota
Chris Peters, Seventh Generation Fund, Arcata, California
Coleen Poler, Sokaogon Defense Committee, Crandon, Wisconsin
Karen Wilde Rogers, Colorado Commission of Indian Affairs, Denver, Colorado
Calvert Curley, Navajo Nation Environmental Protection Agency, Window Rock, Arizona
Pemina Yellow Bird, North Dakota Intertribal Reinterment Committee, Belcourt, North Dakota
Doo Jung Jin, Northwest College, Kirkland, Washington
John Roanhorse, Institute for Tribal Environmental Professionals, Tucson, Arizona
Designated Federal Officers*:
Daniel Gogol, Designated Federal Officer, Office of Environmental Justice, USEPA
Bob Smith, Alternate Designated Federal Officer, American Indian Environmental Office, USEPA
Technical Advisor and Consultant:
Tom Goldtooth, Technical Advisor, Indigenous Environmental Network, Bemjidi, Minnesota
Jeanette Wolfley, Esq., Attorney/Consultant, Pocatello, Idaho
* The Designated Federal Officer and Alternate Designated Federal Officer are not members of
the Subcommittee, but are responsible for providing assistance to the Subcommittee in their
efforts to be responsive to the Agency's request for advice and recommendations. This document
was developed in direct response to the EPA 's Office of Environmental Justice request for advice
and recommendations on meaningful involvement and fair treatment by tribal environmental
regulatory programs.
This report and recommendations have been written as part of the activities of the National
Environmental Justice Advisory Council (NEJAC), a public federal advisory committee
providing independent advice and recommendations on the issue of environmental justice
to the Administrator and other officials of the U.S. Environmental Protection Agency
(EPA).
This report has not been reviewed or approved by the EPA. Therefore, its contents and
recommendations do not represent the views and the policies of EPA or of any other
agency of the federal government.
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A r-™ NATIONAL
V>EPA ENVIRONMENTAL JUSTICE
ADVISORY COUNCIL
November 15, 2004
Administrator Michael Leavitt
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Dear Administrator Leavitt:
We are pleased to provide you a copy of the National Environmental Justice Advisory
Council's report entitled "Meaningful Involvement and Fair Treatment by Tribal
Environmental Regulatory Programs, dated November 2004" This document is intended to
stimulate thought, discussion, and action to enhance environmental justice for indigenous
peoples and others living and working in Indian country and in Alaska Native villages. This
report builds on a document created by the NEJAC in November 2000, "Guide on Consultation
and Collaboration with Indian Tribal Governments and the Public Participation of
Indigenous Groups and Tribal Members in Environmental Decision Making," which
focuses on how EPA can more effectively consult and collaborate with tribes to address the
range of environmental and public health issues in Indian country and of concern to tribes. This
recent report discusses EPA's role in helping tribes develop processes for effective public
participation and due process, as they develop and implement federally-approved environmental
programs. To enhance the effectiveness of the report and recognition of tribal sovereignty, the
"Preliminary Working Draft" of the report (prepared by the NEJAC Indigenous Peoples
Subcommittee) was mailed to each tribe in late February for review and comments. Those who
commented received a copy of the "Revised Draft" in early August for additional review and
comments.
This report proposes several overarching consensus recommendations to the EPA and
other federal agencies. The following are the report's seven main recommendations:
1. EPA should work with tribes to develop an understanding of tribal traditional principles
of equity, fairness, and justice so to better understand the tribes' due process and public
participation approaches.
2. EPA should develop materials to inform tribal governments about the federal
environmental laws and regulations requiring public participation and due process.
A Federal Advisory Committee to the U.S. Environmenta I Protection Agency
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NEJAC Letter
Meaningful Involvement and Fair Treatment by Tribal Environmental Regu latory Programs
Page 2
3. EPA should work collaboratively with tribes to develop training and education for tribes,
tribal members, and tribal community-based organizations on meaningful involvement
and fair treatment.
4. EPA should assist the tribes who are interested in developing administrative procedures
(including processes for public participation and due process) so they will be better
prepared to develop and implement federally-approved tribal environmental programs.
5. EPA should support coordination and collaboration among the tribes that have
established meaningful involvement and fair treatment processes with the tribes seeking
to develop their own processes.
6. EPA should help the tribes interested in fostering a dialogue with business and industry,
states, local governments, and non-members on the issues of sovereignty, jurisdiction,
and land ownership, which are likely to arise in the development and implementation of
meaningful involvement and fair treatment processes.
7. EPA should recognize the unique situation of Alaska Natives with respect to the
implementation of federal environmental laws in Alaska, and develop a better
understanding of how to work with Alaska Native Tribes to address the multiplicity of
environmental issues they face, including meaningful involvement and fair treatment in
the development and implementation of federal environmental laws by EPA and the State
of Alaska, and the State's environmental laws.
I thank you for your consideration of the advice and recommendations presented in this report,
and look forward to discussing the important points raised in this document with the appropriate
staff at EPA.
Sincerely,
y&uMua Body /s/ 7m^ WMUetMtA /s/
Veronica Eady, Chair Terry Williams, Chair
National Environmental Justice NEJAC Indigenous Peoples Subcommittee
Advisory Council
Enclosure
A Federal Advisory Committee to the U.S. Environmenta I Protection Agency
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TABLE OF CONTENTS
EXECUTIVE SUMMARY i
CHAPTER 1
I. Background, Purpose and Summary 1
NEJAC's Advice 4
CHAPTER 2
II. Defining "Meaningful Involvement" and "Fair Treatment" 5
A. Tribal Definitions of Fairness and/or Due Process 6
B. Other Sources of Definitions of Due Process and Public
Participation 7
1. Indian Civil Rights Act 8
2. International Human Rights 9
3. Federal Laws on Human Rights 10
4. Federal Environmental Laws 11
a. Public Participation Under the Clean Water Act,
the Safe Drinking Water Act, and the Clean
Air Act 11
b. The National Environmental Policy Act 12
5. EPA Public Involvement Policy 13
NEJAC' s Advice and Recommendations 15
CHAPTER 3
III. Providing Public Participation and Due Process 17
A. Administrative Law Principles in Environmental Programs 17
1. Public Participation in Rulemaking 18
2. Due Process in Adjudication 19
B. Other Measures to Ensure Meaningful Public Participation 22
C. Tribal Models Effectively Providing Meaningful Public
Participation and Fair Treatment 24
D. EPA's Role in Meeting the Charge 26
NEJAC's Advice and Recommendations 28
CONCLUSION 31
ENDNOTES 33
APPENDICES
A. NEJAC/Indigenous Peoples Subcommittee Tribal Environmental
Justice Charge A-l
B. Significant Federal Policies Impacting Tribal Government B-l
C. Providing for Meaningful Involvement and Fair Treatment C-1
D. Glossary D-l
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EXECUTIVE SUMMARY
The National Environmental Justice Advisory Council (NEJAC) is presenting this report
in response to EPA's request for advice and recommendations on meaningful involvement and
fair treatment by tribal environmental regulatory programs. The report, prepared by the
NEJAC's Indigenous Peoples' Subcommittee (IPS), specifically responds to the EPA's Charge,
for advice and recommendations on the following questions:
In what ways should EPA assist Tribal governments to provide
meaningful public involvement in the development and
implementation of federally authorized and/or approved tribal
environmental programs ?
In what ways should EPA assist Tribal governments to provide fair
treatment of all stakeholders in the development and
implementation of federally authorized and/or approved tribal
environmental programs?
The NEJAC is the formal federal advisory committee chartered, pursuant to the Federal
Advisory Committee Act, to provide advice and recommendations to the Administrator of the
U.S. Environmental Protection Agency (EPA) on matters related to environmental justice. The
IPS consists of representatives from tribal governments, indigenous grassroots groups,
environmental organizations, business and industry, academia, and state government.
The issues of meaningful involvement and due process, as they apply to tribal
governments, are inherently complex and may be difficult to resolve. The NEJAC
acknowledges that tribes are at different stages in the development of their environmental
programs, and are employing different approaches based on their particular culture, history,
government structure, and land base. It is important that EPA recognizes, and is sensitive to,
American Indian and Alaska Native tribal concerns about sovereignty and tribal decision-
making processes. In other words, EPA must be mindful of the unique cultures, traditions and
government structures of each tribe.
Additionally, the NEJAC stresses that the examination of public participation and due
process within the tribal context should not be limited to a comparison with state and federal
due process procedures. There must be an understanding of, or reference to, the tribal values of
due process and public participation within in the tribal culture and context. To that end, a
tribal institution, albeit a tribal court, administrative body, or dispute resolution committee, must
be given the opportunity to articulate the tribal cultural and social norms of public participation
and fair treatment. It is through this process that tribes can best preserve, strengthen and
incorporate native concepts of equity and justice, and build communication and cooperation
within the communities they serve.
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The NEJAC has documented numerous examples of tribes that have already defined for
themselves "due process" and "public participation". These definitions are articulated in tribal
oral traditions, and in written tribal constitutions, bill of rights laws, tribal civil rights acts, tribal
court decisions and policies. In addition to tribal definitions, there are other sources of law that
define due process and meaningful involvement including the American Indian Civil Rights Act
of 1968, the International Human Rights covenants, the federal laws on human rights such as the
Indian Religious Freedom Act and Native American Graves Protection and Repatriation Act, the
various federal environmental laws and EPA's public involvement policy. Tribes may choose to
use these other sources in their public participation and meaningful involvement efforts.
The NEJAC further provides some examples of processes and procedures tribes have
established and are utilizing to ensure meaningful involvement and due process are afforded to
tribal members and non-members. Several tribes have chosen to incorporate their decision-
making processes and actions into their administrative procedures, in accordance with
administrative law. Administrative law procedures are accepted and established processes that
provide fundamental fairness, meaningful public participation, and greater certainty and
predictability for implementation of tribal environmental laws. Additionally, there are other
tribes who have developed processes, oral and written, for addressing fair treatment and public
participation. Three examples are provided from Alaska, Washington and Idaho.
The NEJAC believes that any EPA proposal that truly values the extension, or
enhancement, of meaningful involvement and fair treatment in Indian country and in Alaska
Native villages must recognize the need for financial resources to support tribal environmental
programs, and training and education for tribes on meaningful involvement and fair treatment.
The NEJAC has provided several recommendations regarding training, education and funding.
The NEJAC has proposed 7 specific points of advice and 14 recommendations in this
report. These are both general and specific in nature, some interrelated, and are provided in the
spirit of seeking to identify all possible issues, alternatives and approaches to the issues
presented in the Charge. The advice and recommendations follow each chapter. Finally, there
are two main appendices (B and C) that are important background documents for readers to
consider in conjunction with the main report.
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MEANINGFUL INVOLVEMENT AND FAIR TREATMENT
BY TRIBAL ENVIRONMENTAL REGULATORY PROGRAMS
CHAPTER 1
I. Background, Purpose and Summary
The National Environmental Justice Advisory Council (NEJAC) is the formal federal
advisory committee chartered, pursuant to the Federal Advisory Committee Act, to provide
advice and recommendations to the Administrator of the U.S. Environmental Protection Agency
(EPA) on matters related to environmental justice. The NEJAC is presenting this report in
response to EPA's request for advice and recommendations on meaningful involvement and fair
treatment by tribal environmental regulatory programs. The report, prepared by the NEJAC's
Indigenous Peoples' Subcommittee (IPS) and reviewed and approved, with changes, by the
NEJAC Executive Council, specifically responds to the EPA's Charge, for advice and
recommendations on the following questions:
In what ways should EPA assist Tribal governments to provide
meaningful public involvement in the development and
implementation of federally authorized and/or approved tribal
environmental programs ?
In what ways should EPA assist Tribal governments to provide fair
treatment of all stakeholders in the development and
implementation of federally authorized and/or approved tribal
environmental programs ?
A. Background
The Indigenous Peoples Subcommittee (IPS) is one of seven subcommittees of the
National Environmental Justice Advisory Council (NEJAC). The IPS assists the NEJAC in
providing advice and recommendations on how the Agency can most effectively address
environmental justice issues/concerns facing federally-recognized tribes and other indigenous
peoples. The IPS has eight members with diverse backgrounds who represent tribal
governments, indigenous grassroots groups, environmental organizations, business and industry,
academia and state government.
Over the past 20 years, tribes throughout the United States have begun to develop and
implement tribal environmental programs, pursuant to amendments in federal statutes and
regulations, which provide that tribes can assume roles similar to states. In order to protect
human health and environmental and cultural integrity on their reservations, many tribes are in
the process of defining their tribal authority. Tribes have begun planning and developing the
basic frameworks and institutions for protecting air quality, preserving water quality, and
managing contamination and pollution caused by solid and hazardous wastes. Under the various
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federal environmental laws, the EPA approves, and tribes receive, federal authority to regulate
and set standards on reservations to protect human health and the environment.
Tribal regulatory authority, in the environmental arena, has been challenged by non-
member and non-Indian residents of the tribal community or reservation. The challengers
maintain that the tribal governments do not possess civil jurisdiction to regulate their activities
on the reservation, and argue that tribes do not provide public participation avenues and due
process. Thus far, tribal governments have successfully overcome the challenges to their
regulatory authority. These challenges, however, raise a host of ongoing legal, social,
community and political issues. Indeed, the Congress has held oversight hearings on the civil
jurisdiction of tribal governments and tribal sovereignty.
B. Purpose
In the context of these experiences and in the EPA approval process of tribal
environmental programs, the EPA, through its Office of Environmental Justice, issued a Charge
to the NEJAC to provide advice and recommendations on the issues of public participation and
due process as these principles relate to federally-authorized tribal environmental regulatory
programs.1 The NEJAC tasked its Indigenous People's Subcommittee (Appendix A) to prepare
this report, which was reviewed and approved, with changes, by the NEJAC Executive Council
which respectfully submits it in response to the EPA's Charge. The NEJAC emphasizes that the
Charge, and the discussion in this document, applies only to federally-funded or EPA-approved
tribal environmental programs. However, some tribes who rely solely upon their inherent
sovereign powers for environmental management may find the advice, recommendations, and
tribal examples in this report useful for their consideration.
C. Summary
This report seeks to address the EPA's questions in the Charge and is intended to
encourage a candid discussion, as well as to stimulate thought and action about the issue of
meaningful involvement and fair treatment by tribal governments. Tribes are at different stages
in the development of their environmental programs, and are employing different approaches to
environmental management based on their culture, history, government structure, and land base.
As discussed in this report, some tribes currently employ the principles of public involvement
and fair treatment for tribal and non-member residents of the tribal community. The application
of such basic human principles promises to strengthen and better articulate tribal sovereignty.
The NEJAC stresses that the discussion of public participation and application of due
process principles to tribal governments, however, must be cognizant of the unique culture,
traditions and government structure of each tribe. There are over 560 tribes in the United States,
and they are different from one another. The ability to realize due process principles requires
more than tribes simply adopting European-style procedures. In other words, the examination of
due process and public participation within the tribal context should not be limited to a
comparison with state and federal due process procedures. There must be an understanding of,
or reference to, the tribal values of due process within the tribal culture and context. A tribal
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institution- through a rulemaking or review by a tribal administrative agency, dispute resolution
board, or tribal court- must be given the opportunity to articulate the cultural and social norms of
due process. It is through the tribal process that tribes can best preserve, strengthen and
incorporate native concepts of equity and justice, and build communication, cooperation and
support within the tribal community. This represents tribal sovereignty in action.
Additionally, the NEJAC acknowledges that, for some tribes, there must be a tribal
political commitment to build institutional capability. This is necessary to make meaningful
public participation and fair treatment possible and can be accomplished with funding assistance
and technical advice from the EPA. Simply stated, developing meaningful involvement and fair
treatment processes within a tribal setting cannot be an end in itself. Tribes can and should
consider approaches to improve the process, which can help enhance community respect for
tribal procedures. It is through institution-building and community support that tribes can
provide for effective public participation and fair treatment.
In the view of the NEJAC, it is critical to provide adequate financial resources to support
the tribes' environmental programs, as well as the development and implementation of public
participation and fair treatment processes. Moreover, any EPA proposal, which truly values the
extension of due process to tribal members and the public, must recognize the need for tribes to
receive training and education in the areas of public participation and due process. Training can
serve as a two-way exchange; tribes can learn about the principles of non-tribal public
participation and due process while EPA, as well as the non-member residents and other
interested parties, can learn about tribal processes of participation and equity. In the absence of
such financial and technical resources/training, meaningful public participation and fair
treatment may not be realized.
The NEJAC recognizes that any discussion regarding public participation and due
process by tribal environmental regulatory programs is complex and may be difficult to resolve.
From the outset, it is important that EPA recognizes and is sensitive to tribal government
concerns about encroachment upon their tribal decision-making and sovereignty in developing
environmental programs based upon their traditions and governmental structure. Indeed, some
tribes may believe that EPA has singled out tribes on the issues addressed in this document.
Finally, the NEJAC observes that tribal members, as well as reservation and Alaska
Native lands, have suffered disproportionate environmental impacts. They are often
overburdened, underserved, underfunded, and suffer high risks from environmental impacts
which affect public health. It is important that EPA acknowledge that some tribal governments
are focused on the basic governmental services of education, affordable housing, food and
nutrition, clean water, and reducing exposure to contaminants. These basic services are critical
priorities to many American Indian and Alaska Native communities and often overshadow the
public participation ideals and values articulated by EPA in its Charge. The NEJAC notes the
existence of these fundamental and ever-pressing issues and recognizes that they may limit tribal
attention to public involvement issues. Accordingly, EPA should proceed with great sensitivity
in dealing with tribal governments on the issues of due process and public participation.
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This report begins in Chapter 2 with a presentation of established tribal definitions of due
process, and other sources for defining due process under the Indian Civil Rights Act,
international human rights law, and federal environmental laws. Chapter 3 discusses current
tribal procedures or processes to ensure public participation and due process.
At the end of each chapter, the NEJAC presents advice and recommendations on ways in
which the EPA can assist tribes in addressing, developing and implementing meaningful
involvement and fair treatment processes. Chapter 3 includes advice and recommendations
compiled from Appendices B and C. The advice and recommendations are both general and
specific, and are provided in the spirit of seeking to identify possible approaches to addressing
the issues raised in the Charge.
D. Appendices
The report contains a set of three appendices that include: (1) the NEJAC Charge
(Appendix A); (2) a discussion of the significant federal policies impacting tribal governments
and the authority or sovereignty of tribes to protect and regulate activities affecting natural
resources and the environment of reservations (Appendix B); and (3) the terms of "meaningful
public involvement" and "due process", and why these principles are important for tribes and
governments in general to consider (Appendix C).
NEJAC's Advice and Recommendation
Advice
1.1 EPA should recognize that requirements for public participation and due process in
federally-approved tribal environmental programs may have implications for tribal
decision making, values, sovereignty, and tribal efforts to exert jurisdictional authority.
EPA should be sensitive to these concerns and to the challenges these bring to tribes.
1.2 EPA should continue to enhance its government-to-government consultation and
collaboration with tribes, as tribes exercise their sovereignty, exert jurisdiction over
environmental and public health issues, and develop and implement tribal environmental
programs.
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CHAPTER 2
II. Defining "Meaningful Involvement" and "Fair Treatment"2
In defining these terms for tribes, some may be naturally inclined to borrow familiar
principles from the areas of federal constitutional, statutory law or policies. For example, the
EPA has defined these phrases in their Environmental Justice Policy. In 1992, EPA created the
Office of Environmental Justice to integrate environmental justice into the Agency's policies,
programs, and activities. EPA defines "environmental justice" as the "fair treatment and
meaningful involvement of all people regardless of race, color, national origin, or income with
respect to the development, implementation, and enforcement of environmental laws,
regulations, and policies."3 EPA further defines the terms "meaningful involvement" and "fair
treatment" as follows:
Meaningful involvement means that: (1) potentially affected
community residents have an appropriate opportunity to participate
in decisions about a proposed activity that will affect their
environment and/or health; (2) the public contribution can
influence the regulatory agency's decision; (3) the concerns of all
participants involved will be considered in the decision making
process; and (4) the decision makers seek out and facilitate the
involvement of those potentially affected.4
Fair treatment means that no group of people, including racial,
ethnic, or socioeconomic group should bear a disproportionate
share of the negative environmental consequences resulting from
industrial, municipal, and commercial operations or the execution
of federal, state, local and tribal programs or policies.
The NEJAC notes that direct application of due process principles developed by federal
or state courts may be inappropriate for tribal communities because such standards or principles
are designed to protect the interests of individuals in the majority society and often do not reflect
the unique communal interests of tribes. Identifying the best interests of tribal nations and their
people presents a weighty challenge for tribal governments. Ultimately, each tribe must define
for itself the process best suited for their needs. It is quite probable that tribes may exhibit a
combination of borrowed principles and traditional tribal principles. The various forms of public
participation that may be adopted or created by tribal governments are virtually endless.
The NEJAC has identified numerous instances where tribes have defined "due process"
and "meaningful involvement" within their communities based upon traditional tribal principles.
These are illustrated in tribal court decisions, constitutions, codes, and policies. Other sources,
such as the Indian Civil Rights Act and judicial interpretations, International Human Rights
documents, federal human rights legislation, and federal environmental laws and regulations are
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presented as well. These additional sources may provide insight and be of use to EPA as the
Agency works with tribes to provide for meaningful involvement and due process in tribal
environmental regulatory programs.
A. Tribal Definitions of Fairness and/or Due Process
Fairness, or due process, is not new to tribal governments. Indeed, Chief Justice
Sherman, Rosebud Sioux Tribal Court, stated in Bloomberg v. Dreamer (1991):
It should not be for the Congress of the United States or the
Federal Court of Appeals to tell us when to give due process. Due
process is a concept that has always been with us. Although it is
a legal phrase and has legal meaning, due process means nothing
more than being fair and honest in our dealings with each other.
We are allowed to disagree.. .What must be remembered is that we
must allow the other side the opportunity to be heard.5
Similarly, the Navajo Supreme Court has noted that Navajo customary due process predates the
Indian Civil Rights Act and the Navajo Bill of Rights. The Court described Navajo due process
as a form of dispute resolution, where all interested parties get a chance to speak before a
collective decision is made.6 Tribal common law, as developed by the tribal judiciary, is a good
source for defining due process. Furthermore, tribal judges are tribal leaders who must make
day-to-day decisions for the good of the whole community, while simultaneously maintaining
the integrity of the case for those individuals before him or her. Restorative justice, practiced by
the Navajo Peacemaker Court and other similar tribal forums, advocates balance and harmony
between the parties and for the overall good of the tribal community.
Many tribal constitutions include measures to provide for a good quality of life for the
people and to protect the health, security and general welfare of the tribes through mechanisms
of fairness and due process. For example, the Constitution of the Spokane Tribe of Indians
provides:
... [t]his Constitution and the Tribal Government it establishes
shall not encroach upon or limit any person's right to enjoy
freedom of worship, conscience, speech, press, assembly and
association, and other rights established by federal law.7
Similarly, Article X of the Rosebud Sioux Tribe Constitution establishes a Bill of Rights:
No person shall be...deprived of life, liberty, or property, without
due process of law; not be denied equal protection of law.8
Some tribes have enacted civil rights ordinances, which similarly provide mandatory due
process. The Confederated Tribes of the Colville Reservation have adopted such an ordinance.
Chapter l-5-2(h) Colville Tribal Civil Rights Act states that the Tribal government:
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"...shall not deny to any person within its jurisdiction the equal
protection of its laws or deprive any person of liberty or property
without due process of law." 9
Other tribes have administrative procedure acts to establish notice, comment
procedures and due process.10
Fair dealings, honesty, integrity, and the opportunity to be heard or speak before a
collective decision is made, are all worthy and tribally-recognized components of due process.
These universal understandings of fairness, through tribal customs and traditions, have been
handed down by word of mouth or by example from one generation to another without any
written instruction or mandate. These long established practices are considered unwritten law
and reflect a tribal community's practices that regulate social life.
Today, many tribal constitutions and law and order codes provide for due process and
public participation, as the examples above demonstrate. These provisions mandate that custom
and tradition be utilized by tribal courts and other dispute resolution processes. Many tribal
institutions apply and draw upon customary law to some extent. Applying customary law is not
always simple because the customs are often contained in the oral traditions of tribes.11 They are
not written down or codified like state or federal standards. Instead, the sources of common law
are the members of the tribe who retain the traditions of the tribe. However, this does not mean
that tribal standards of due process should be disregarded simply because they are not written.
Tribal definitions of due process can be adopted by tribal environmental programs and
incorporated into their procedures by working with individual community representatives who
can assist in the articulation of the due process within the local tribal context.
In recent years, tribes have begun to reexamine their current tribal justice practices and
standards of justice, and are revitalizing and re-traditionalizing their justice systems. They are
exploring the old unwritten law of the past as a means to restore their tribal culture and health of
the tribal community. The area of customary law, including methods of traditional dispute
resolution, is receiving attention from legal experts and researchers. Customary law and the
articulation of tribal standards, definitions and principles relating to fairness, thoughtful
deliberation, honesty, the opportunity to speak before a collective decision is made, respect for
each other, and harmony and balance with the community should be recognized and given due
consideration by tribal environmental programs when they begin to consider and articulate public
participation and fair treatment policies.
B. Other Sources of Definitions of Due Process and Public Participation
In addition to tribal legal definitions, there are other sources of law defining due process
and public involvement.
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1. Indian Civil Rights Act
In 1968, Congress enacted the Indian Civil Rights Act of 1968 (ICRA).12 Widely called
the "Indian Bill of Rights," this document was used by Congress to impose certain limitations on
tribes, closely resembling provisions of the U.S. Constitution's First, Fourth, Fifth, Sixth, and
Eighth Amendments and the equal protection and due process provisions of the Fourteenth
Amendment. Section 1302(8) of the ICRA provides that: "No tribe in exercising powers of self-
government shall... deny to any person within its jurisdiction the equal protection of its laws or
deprive any person of liberty or property without due process of law." The act applies to tribal
action against all individuals, both tribal members and non-members.13
Some tribes have incorporated the ICRA into their constitutions or tribal codes, while
others include the Bill of Rights provisions in their constitutions. For example, the Jamestown
S'Klallam Tribe of Indians in Washington, adopted ICRA provisions verbatim into their Tribal
Constitution.14 Another Washington tribe, the Skokomish Indian Tribe, has paraphrased the
ICRA provisions in their Constitution and added that the Tribe:
"...shall provide to all persons within its jurisdiction the rights
guaranteed by the Indian Civil Rights Act of 1968."15
Under the ICRA, tribal courts or forums review and interpret tribal law and actions to
determine if there is a violation of certain individual rights, such as due process. In 1978, in the
landmark case of Santa Clara Pueblo v. Martinez, the Supreme Court held that Section 1303 of
the ICRA is the exclusive federal remedy (habeas corpus) under the statute. This means that
virtually all ICRA litigation proceeds through the tribal judicial systems, and federal courts
rarely hear Indian civil rights cases.16
Accordingly, tribal courts have had the opportunity to define due process under the ICRA
involving a variety of issues. Tribal courts have looked to federal precedent and tribal traditions
to discern the essential fairness implied by the requirement of due process. Many tribal courts
have held that tribes have greater flexibility in applying principles of due process as found in the
ICRA, than state and federal courts have in applying principles of due process under their
respective constitutions. 17 Moreover, the tribal courts routinely rule that the meaning and
application of the ICRA is not determined by European-style constitutional interpretations.18
Importantly, the rights of individuals often are balanced against the communal good of the tribe.
Some federal courts, which faced claims of due process violations by tribes, have found
that a ten-day notice and opportunity to speak before a tribal council met the requirements of due
process.19 In addition, the courts have found that the failure of a tribal chairman to present his
side of the case in the traditional tribal forum - a tribal council - did not constitute a violation of
due process.20 However, a federal court found a violation of due process when a tribal member
was not given a meaningful opportunity to be heard,21 and when a tribe imposed permanent
orders of banishment without a hearing or prior notice.22
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It is clear from a review of the case law that tribal courts are making a good faith
interpretation of the ICRA. The substantive holdings of the cases protect individual rights and
contemplate unique tribal customs and traditions. Promoting tribal sovereignty begins with tribal
courts applying tribal law to settle tribal member and tribal government disputes. Recognition of
these principles of due process under the ICRA provides a foundation for such application in the
environmental regulatory setting, and should be used as a guide for implementing tribal
environmental acts and regulations. Common due process principles, such as a notice of a
hearing, a forum or body to hear complaints or permits, the opportunity to be heard, and the right
to an appeal of a decision have been upheld by the tribal courts and federal courts in interpreting
the ICRA. These basic principles should also apply to tribal environmental programs when they
implement their rules and regulations.
2. International Human Rights
The International Covenant on Civil and Political Rights;23 the International Covenant on
Economic, Social and Cultural Rights and the Draft American Declaration on the Rights of
Indigenous Peoples are important international sources of human rights law for American
Indians, Alaska Natives, Native Hawaiians, and tribal governments. The first two documents
transform the value embodied in the Universal Declaration of Human Rights24 into binding legal
norms or standards. Together these instruments form the basis of contemporary human rights
law. The first article of the two earliest covenants secures the right to self-determination for all
peoples, indicating the primary importance of this right in international law:
"All peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development."
Importantly, these international documents recognize the basic roots of sovereignty, that
is, governments derive:
"...their just powers from the consent of the governed," and the
"collective rights of indigenous peoples" to possess and exercise
rights.25
Three articles (14, 25, and 26) of the Covenant on Civil and Political Rights are relevant
to the issue of due process and the provision of basic human rights to all people within the
jurisdiction of a tribe. Article 14 proclaims that "[a]ll persons shall be equal before the courts
and tribunals" and that any person's rights and obligations are to be determined in a "suit of
law... shall be entitled to a fair and public hearing by an independent and impartial tribunal
established by law." Article 25 provides that "[e]very citizen shall have the right and the
opportunity ... without unreasonable restrictions to take part in the conduct of public affairs,
directly or through freely chosen representatives." Certainly, non-members are not "citizens" of
the tribe, but this provision aptly applies to tribal members who believe that their rights have
been restricted or access not readily available to participate in tribal government hearings and
meetings. Finally, Article 26, like the ICRA, provides: "All persons [tribal members or non-
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members] are equal before the law and are entitled without any discrimination to the equal
protection of the law."
The most recent relevant international document is the Draft American Declaration on the
Rights of Indigenous Peoples, 6 prepared by the Inter-American Commission on Human Rights
in 1997. The Draft American Declaration contains important provisions for recognizing the
collective rights of indigenous peoples and tribes, including right to lands and cultural rights.
Importantly, the draft provides that indigenous peoples of the Americas have the "right to the full
and effective enjoyment of the human rights and fundamental freedoms."27 Article 13 of the
draft establishes rights to environmental protection including:
The right to a safe and healthy environment, which is an essential
condition for the enjoyment of the right to life and collective well-
being, to be informed of measures which will affect their
environment, including information that ensures their effective
participation in action and policies that may affect it, and to
participate fully in formulating, planning, managing and applying
governmental programmes of conservation of their lands,
territories and resources.28
And, Article 18 recognizes the rights of landowners to their property and ownership
rights with respect to their lands:
The right to protection of their rights with respect to the natural
resources on their lands, including the ability to use, manage, and
conserve such resources; and with respect to traditional uses of
their lands, interests in lands, and resources, such as subsistence."29
Significantly, the article provides that the
"governments must establish or maintain procedures for the
participation of the peoples concerned in determining whether the
interests of these people would be adversely affected and to what
extent, before undertaking or authorizing any program for
planning, prospecting, or exploiting existing resources on their
lands."30
3. Federal Laws on Human Rights
As noted above, indigenous groups from the Americas, Australia, Africa and other parts
of the World have joined in efforts to forge the protection of their rights on the basis of
international law. Some of these international principles with regard to basic human rights,
cultural freedoms and collective rights, may prove useful for tribal consideration when
deliberating the concepts of meaningful public participation and fair treatment for their
communities.
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In the United States, the Congress has recognized the unique cultural need of tribes and
enacted several pieces of legislation for the protection of tribal cultural properties and religious
rights including the American Indian Religious Freedom Act31, and the Native American Graves
Protection and Repatriation Act.32 Although these federal laws apply to federal land managers,
tribes may wish to consider the values and principles articulated in these laws as they may apply
to tribal government initiatives. These laws are based in part on basic human rights principles
that seek to protect and preserve the cultural properties and religious beliefs of tribes. They
formally acknowledge that the cultures of tribes are a vital part of the ongoing lifeways of the
United States, and as such must be respected and are vital to the future of such peoples.
Additionally, the legislation recognizes the cultural ties that tribes continue to have to the Earth
and natural resources.
4. Federal Environmental Laws
a. Public Participation Under the Clean Water Act, the Safe
Drinking Water Act, and the Clean Air Act
Tribes who have received federal authority, under "treatment as a state" provisions of the
various federal environmental acts, should be keenly aware of the federal requirements for public
participation set forth in the federal regulations. Part 25 of Title 40 of the Code of Federal
Regulations governs public participation in programs under three of the primary laws
administered by EPA: the Clean Water Act, the Safe Drinking Water Act and the Resource
Conservation and Recovery Act.33 Although Part 25 does not expressly apply to tribes, other
EPA regulations make Part 25 applicable to tribes. For example, regulations under the Clean
Water Act for water quality standards state that Part 25 regulations are applicable to states, and
then to tribes when they seek treatment as a state and seek to adopt and review water quality
standards.34 The Clean Water Act authorizes EPA to treat tribes as states for a number of
purposes under the federal statute, including section 303 for water quality standards, section 319
to control non-point sources of water pollution, section 401 for certification of compliance with
water quality standards, section 402 for NPDES permits, and section 404 for dredging or filling
wetlands. This means that tribal environmental programs must comply with these federal public
participation regulations for rulemaking.
Part 25 regulations establish a host of requirements for sharing information, public
notices and consultation.35 Some of these requirements are:
(1) A proactive program to provide information to the public,
including making documents and summaries of complex
documents available, establishing central and convenient
collections points for documents, and maintaining an interested
persons list for any activity covered by Part 25; (2) providing
ample notice to all interested persons and affected parties, and
making reports, documents and data available at least 30 days
before a hearing; (3) the establishment of advisory groups, task
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forces, and informal communication; and (4) preparation of
responsiveness summaries by agencies to public comments.
If a tribe has enacted an administrative procedure act, the requirements of the tribal law should
prevail if they conflict with the Part 25 requirements.
A second section of the Code of Federal Regulations that applies to tribes is Part 124.
The procedures in Part 124 address permits issued by tribes who choose to be treated like states,
under RCRA Subtitle C, the Safe Drinking Water Act underground injection control program,
the Clean Air Act prevention of significant deterioration program and the NPDES program.36
Part 124 set forth program requirements for draft permits, public notices, requests for hearings,
final decisions and administrative appeals from decisions or orders, and judicial review of
agency actions.37
In addition, under the Clean Air Act, Tribal Implementation Program (TIP) guideline,
there are requirements that are consistent with 40 CFR Part 51.102(d), that cover notice to be
given to the public for the proposed plan, time, date and place of the hearings, and making the
proposed plan available for public inspection on and off the reservation and to ensure
advertisement in a general circulation newspaper. Tribes have complied with this section in
informing the public on their TIPs. The St. Regis Mohawk Tribe in New York published the
notice in their local Tribal newspaper and circulated the information widely in the area. The Gila
River Indian Community in Arizona published in a Phoenix newspaper and on the Reservation.
b. The National Environmental Policy Act
A significant federal law that establishes a comprehensive environment review of federal
actions is the National Environmental Policy Act (NEPA).38 Under NEPA, a federal agency may
be required to prepare an environmental assessment or environmental impact statement prior to
taking any "major federal action significantly affecting the quality of the human environment."39
NEPA requires federal agencies to prepare documents analyzing the impacts and giving the
public the right to participate in the process. In short, NEPA makes the federal decision making
process a transparent one. Within the past 10 years, several tribes have initiated the adoption of
NEPA-like review processes to consider the impacts of projects on public heath and safety,
natural and cultural resources, socioeconomic conditions and the environment.40 Some tribes
have established laws in order to have a uniform permitting mechanism for on-reservation
activities. These laws are referred to as "TEPAs" or Tribal Environmental Policy Acts.
As part of the review process, the TEPA provides for the reservation population, Indian
and non-Indian to participate in the tribal decision making. There are established procedures that
permit public participation and due process as the tribal government moves through its decision
making process to consider a development project by the tribe itself or a private entity. For
example, a tribe may establish a TEPA that has a permitting process that gives individuals the
opportunity to express their concerns to the permitting agency on a housing or commercial
development, and the applicant the opportunity to respond. Commonly, a TEPA has a process
for administrative appeals and judicial review similar to the procedures discussed in Chapter 3
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under the administrative law procedures section. In addition, a tribe may craft a TEPA to
include rulemaking under its coverage to enable the public to comment on and participate in the
drafting of rules or regulations relating to the tribal clean air, water quality or solid waste laws.
Another important aspect of NEPA is the role and responsibilities of tribes and its
members in the overall federal decision making process. Under the CEQ regulations, federal
agencies are responsible for seeking the cooperation of state and Indian tribes if the proposed
action may affect an Indian reservation, or impacts outside the reservation may affect cultural
resources or off-reservation treaty rights.41 A tribe may become a cooperating agency, by
agreement, which gives a tribe direct involvement in the key decisions and an opportunity to
educate the agency about the tribal needs and concerns. If a tribe has a TEPA, the CEQ
encourages the preparation of joint review documents and assessments, and to satisfy both the
NEPA and TEPA requirements.
5. EPA Public Involvement Policy
In May 2003, the EPA released its Public Involvement Policy to "provide for meaningful
public involvement in all its programs, and consistently look for new ways to enhance public
input."42 The term "public involvement" is used in the Policy to "encompass the full range of
actions and processes that EPA uses to engage the public in the Agency's work, and means that
the Agency considers pu
Policy's purposes are to:
the Agency considers public concerns, values, and preferences when making decisions."43 The
Improve the acceptability, efficiency, feasibility and durability of
the Agency's decisions; reaffirm EPA's commitment to early and
meaningful public involvement; ensure that EPA makes its
decisions considering the interests and concerns of affected people
and entities; promote the use of a wide variety of techniques to
create early and, when appropriate, continuing opportunities for
public involvement in Agency decisions; and establish clear and
effective guidance for conducting public involvement activities. 44
EPA identified seven basic steps to ensure that it conducts effective meaningful public
involvement:
(1) plan and budget for public involvement activities;
(2) identify the interested and affected public;
(3) consider providing technical or financial assistance to the
public to facilitate involvement;
(4) provide information and outreach to the public;
(5) conduct public consultation and involvement activities;
(6) review and use input and provide feedback to the public; and
(7) evaluate public involvement activities.45
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The Policy includes a comprehensive guidance to help EPA staff and managers in
implementing the seven steps.46
The Public Involvement Policy offers comprehensive creative methods, outreach efforts
and alternative courses of action that can be utilized to inform the public about a wide variety of
Agency proposed actions. The NEJAC recommends that EPA should encourage tribal
environmental managers to review the Policy in order to gain insight and ideas that may be
useful in their public participation efforts. Additionally, such measures enhance the deliberative
process and promote a careful, critical examination of government decision-making.
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NEJAC's Advice and Recommendations
Advice
2.1 EPA should recognize that tribes may use their oral traditions and customs to provide
written standards of due process and meaningful involvement.
Recommendations
2.2 EPA should work with tribes to develop an understanding of tribal traditional principles
of equity, fairness, and justice so to better understand the tribes' due process and public
participation approaches.
2.3 EPA should work with tribes to inventory the definitions developed, and procedures used,
by tribal courts and other tribal institutions for public participation and due process based
upon tribal customary laws.
2.4 EPA should encourage federal agencies to collaborate with tribes, support tribal
cooperating agency status in implementing the National Environmental Policy Act
(NEPA) when actions may affect cultural resources and off-reservation treaty rights (on
aboriginal, ceded, usual and accustomed lands), and build capacity for effective decision
making, including meaningful involvement and fair treatment processes for NEPA
implementation.
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CHAPTERS
III. Providing Public Participation and Due Process
In the preceding Chapter, this document discussed various definitions of due process and
meaningful involvement, and provided examples of tribes who have defined the phrases within
the tribal context. This Chapter further illustrates various processes, procedures and principles
that tribes have established and are utilizing to ensure that meaningful public participation and
due process are afforded to tribal members and other community members.
The NEJAC believes this information can assist tribes in their efforts to develop or
enhance their own processes, since tribes can benefit from the successes of existing tribal
programs. Section A explores the use of administrative law principles for addressing due
process and meaningful involvement by tribal environmental programs. Section B discusses
other measures for ensuring public participation. Section C includes additional examples of how
tribes are providing for meaningful public involvement and fair treatment in the area of
environmental protection. In Section D, the NEJAC discusses educational programs, and
financial and technical support to aid tribes in developing and/or implementing meaningful
public involvement and due process approaches in tribal environmental programs. The Chapter
concludes with the NEJAC' Advice and Recommendations pertaining to this Chapter as well as
those relevant to the information provided in the attached appendices.
A. Administrative Law Principles in Environmental Programs
To address the myriad of environmental issues and implementation of complex and
highly specialized laws, tribal governments have established boards, departments, commissions
and other administrative entities to oversee these programs. Some tribal environmental
programs, as departments or agencies of a tribe, have chosen to incorporate their decision-
making processes and actions into their administrative procedures, in accordance with
administrative law.47 Certainly, each tribe, in exercising their sovereignty, will determine what
public participation processes and notions of due process are applicable to its community. Tribal
administrative procedure laws, however, provide a guide for tribal administrative agencies to
address permitting, enforcement and general rulemaking, which affect development and
regulation of natural resources on Indian reservations. Administrative procedures are an
accepted and established process that provides fundamental fairness, meaningful public
participation, and greater certainty and predictability for the implementation of tribal
environmental laws and regulatory programs.48
Administrative law is described as follows:
Administrative law is the branch of the law that controls the
administrative operations of government. Its primary purpose is to
keep governmental powers within their legal bounds and to protect
individuals against the abuse of such power. It sets forth the
powers that may be exercised by administrative agencies, lays
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down the principles governing the exercise of those powers, and
provides legal remedies to those aggrieved by administrative
action.49
Broadly speaking, administrative law covers three sets of issues: (1) delegation of powers
by the legislative body to an administrative agency; (2) procedural and substantive limitations on
the execution of the powers; and (3) procedural requirements and standards for administrative
appeals and judicial review of administrative action. For purposes of this document, the two
primary types of processes, "rulemaking" and "adjudication," may impact the interests and
concerns of individuals, tribal members or non-members. These two processes have been
adopted in administrative procedure acts by some tribal governments and are explored as
approaches to ensure public participation and due process.
1. Public Participation in Rulemaking
Rulemaking by a tribe is a legislative process that clarifies ambiguities or fills in gaps in
the environmental ordinance or law that was passed by the tribal governing body. Usually, the
governing body (typically the tribal council) has delegated the authority to draft and promulgate
rules or regulations to the environmental program, and then the program undertakes this task to
provide more details and specifics in the rules. For example, a tribal council may enact an air
quality protection act and delegate authority to its air program to draft specific standards. The
act itself is usually broader or more general in nature. For this reason, the air program staff will
undertake rulemaking by drafting detailed rules or regulations defining air emission rates and
setting emission limits, emission inventories, control measures and technologies for various
sources, and compliance schedules, as well as others.
Generally, an environmental program or agency is accountable to the legislative body or
tribal council, but not directly to the community or public. In order to provide public
participation and allow federal agencies to be more accountable to the public, Congress has
enacted the Administrative Procedures Act (APA).50 Likewise, some tribes have enacted APAs
to govern rulemaking for the tribal departments in general51 and specifically to environmental
programs. The tribal APAs establish procedural and substantive limitations on the exercise of
tribal administrative authority, and typically establish notice, publication, and public comment
procedures in connection with the adoption of rules or regulations (rulemaking). The acts also
provide for public inspection of department decisions, orders, and opinions. For example, the
Puyallup Tribal Administrative Procedure Act, Section 1.4, states:
Prior to proposing that the Tribal Council adopt, amend or
repeal any rule, the sponsoring Department proposing that
the Tribal Council take such action shall:
Afford all interested persons reasonable opportunity to
submit data, views, or arguments in writing. Opportunity
for public hearing may be granted if requested in a timely
manner and determined by the sponsoring department to be
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in the public interest. It is the intent of this Act that
reasonable and timely requests for public hearings be
favorably acted upon by the sponsoring department.
Following the close of the public comment period, and
prior to making its final recommendation to the Tribal
Council, the department shall fully consider all oral
comments and written submissions respecting the proposed
action.52
Public participation is recognized and accommodated by many tribes, as demonstrated
under the Puyallup APA, and other similarly enacted tribal administrative procedure acts. The
key procedures provide for notice of the rulemaking, an opportunity for community members to
participate by submitting comments, views, or arguments in writing or at a public hearing, and to
have their oral or written comments considered by the tribal agency. These tribal procedures for
public participation are similar to the federal APA. Adherence to good rulemaking is important
for tribes and affected industry. Such procedures will likely result in a more carefully considered
rule, but also may increase confidence of the regulated community by assuring more opportunity
for formal participation in the development of the rules and regulations by which they will be
governed.
The use of regulatory boards of experts to adopt regulations and overhear disputes is well
established at the state and federal level. Tribes might well profit from the adoption of such a
framework, and from the board members possessing a wide range of expertise and perspective.
Inclusion of non-tribal representatives on tribal boards, and perhaps including representatives
from the regulated community may prove to be useful. Industry representatives have significant
expertise to lend to such boards. Also, different perspectives help governing bodies make
informed decisions. A tribe that is secure in its authority to regulate environmental matters need
not confirm that authority by staffing its regulatory boards exclusively with tribal members;
significant gain in expertise and perspective may result from a more diverse composition of the
regulatory board.
For example, in 1995, the Shoshone-Bannock Tribes and the FMC Corporation in Idaho
entered into an agreement on the regulatory authority of the Tribes over the industry, including
permitting, regulations, and fees. As part of this agreement, the parties agreed to an
administrative committee to facilitate and implement the agreement for rulemaking, non-
attainment matters, permitting, as well as to address other matters. The seven-member
committee was comprised of two tribal representatives, two from FMC, one EPA representative,
one State of Idaho representative, and one at-large member selected by the other six
representatives. Any disputes under the agreement were handled by a special panel of the Tribal
Court consisting of three attorney members-one selected by the Tribes, one selected by FMC
and one selected by the two panel members.
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2. Due Process in Adjudication
Adjudication occurs when an agency or department of the tribe makes a decision, such as
acting on a permit application, enforcement action, a contested action or violation by a permittee,
or issuance of a major decision affecting the rights of individuals or companies. Simply stated, if
an agency makes a decision that affects an individual on grounds that are particularized to the
individual, then the agency has engaged in adjudication.
When an adjudication occurs, the fundamental requirements of due process apply and
provide that a person whose property interests may be adversely affected by a proposed
governmental action be given notice, an opportunity to be heard, a fair hearing, and a decision
based upon the relevant facts and applicable legal standards. The precise procedural safeguards
applicable to a given case depend on consideration of the following factors:
First, the private interest that will be affected by the official action;
second, the risk of erroneous deprivation of such interest through
the procedures used, and probable value, if any, of additional or
substitute procedural safeguards; and finally, the government's
interest, including function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirements would entail.53
As discussed in Chapter 2, tribal constitutions and other laws may establish due process
and equal protection procedures as matters of tribal law. Also, the Indian Civil Rights Act
incorporates due process, equal protection and other limitations on the exercise of governmental
power as such limitations apply to tribal administrative agencies. Tribal APAs supplement the
minimum requirements of the due process by establishing criteria for tribal agency decision-
making, establishing rules and evidentiary requirements for contested cases, and setting
procedures and standards for administrative appeals and judicial review of administrative
actions. These administrative procedures provide greater certainty and predictability and greater
openness and accountability than is required by the due process clause itself.
Tribal administrative laws establish procedural requirements for administrative appeals
and judicial review of administrative actions. For instance, the requirements for timeliness of a
notice of appeal to a commission or petition for judicial review are covered in tribal APAs.
Tribal laws also set notice requirements for contested cases (i.e. statement of time, place, and
notice of hearing, statement of authority and jurisdiction of authority, and issue and matters to be
decided).54 Many tribal administrative laws establish substantive standards for administrative
appeals, such as the appeal to be made on the record developed before the administrative appeals
board or commission.55 This means that the briefs, pleadings, evidence, decisions and orders
received and issued by a tribal commission or board will be considered by the reviewing tribal
court upon appeal.
For instance, in Montana, the Confederated Salish and Kootenai Tribal Administrative
Procedure Ordinance provides that:
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If a timely petition for review of a commission decision is filed for
judicial review, the tribal administrative laws provide that the court
may affirm the final decision of the agency or uphold the
promulgation of the rule, it may remand the case for further
proceedings, or it may reverse the final decision or the rule, in
whole or part, if the substantial rights of the petitioners have been
prejudiced because the administrative findings, inferences,
conclusions, or decisions are in violation of constitutional
provisions, in excess of lawful authority or jurisdiction, clearly
erroneous or arbitrary or capricious.56
Such provisions are very similar to the federal and state APAs.
Tribal administrative procedures acts/ordinances provide a guide for tribal environmental
programs to address issues associated with implementation of the tribal laws and the regulation
of activities affecting natural resources in tribal communities. The tribal administrative procedure
acts seek to ensure that their administrative bodies carry out their programs consistent with the
notions of common sense, justice and fairness. They institutionalize public participation by
establishing a process that:
(1) Requires public participation through oral and written
comment;
(2) Promotes honesty and integrity in the process;
(3) Offers a means for public hearings;
(4) Fosters predictability and greater certainty to the community;
and
(5) Ensures that the comments, questions and concerns of the
community will be recorded and considered by the tribal
agencies.
The Tribal administrative procedures laws provide for limited waivers of tribal sovereign
immunity. Typically, the relief provided under the laws, do not include monetary judgments
against the tribal sovereign. In Washington, under the Puyallup Tribes and Confederated
Colville Tribes APAs the Tribal Courts can affirm or remand the Tribal administrative agency's
actions on a permit, license or administrative order, but the Tribal Court is not authorized to enter
a monetary judgment against the Tribe.57
Additionally, tribal APAs create supplemental due process requirements to those found in
the tribal constitution, tribal civil rights acts and/or ICRA. The APAs ensure that when a tribal
action or proposed action may affect an individual's property:
That individual is to be given notice, an opportunity to be heard by
the administrative body, receive a fair hearing and a decision upon
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the relevant facts, and be able to seek judicial review of the
administrative decision.
These basic requirements certainly meet the fundamental requirements of due process. A tribal
APA can be a mechanism for achieving goals of certainty, fairness, timeliness, and technical
expertise. The simple existence of the mechanism can provide the regulated industry with some
degree of confidence, and tribes with greater credibility as industry is accustomed to operating
by established administrative procedures in other jurisdictions. An APA is not the only means of
constructing a framework for environmental regulation; specific environmental laws and
regulations may describe the administrative process for certain specific regulations.
B. Other Measures to Ensure Meaningful Public Participation
In 2000, the Indigenous Peoples Subcommittee published a "Guide on Consultation and
Collaboration with Indian Tribal Governments and the Public Participation of Indigenous Groups
and Tribal Members in Environmental Decision Making." The Guide, an impetus for this
document, includes a plan setting forth certain guiding principles and critical elements tribal
governments should consider for effective public participation.58 Two key guiding principles
are:
(1) Encourage public participation by having interactions that
encourage active community participation, institutionalize
public participation, recognize knowledge and utilize cross-
cultural formats and exchanges; and
(2) Maintain honesty and integrity by establishing the goals,
expectations and limitations early in the process.
The critical elements include a means for meeting preparation, meeting participation, logistics,
agenda setting, information-sharing, and seeking and gaining valuable community input. These
are good starting points, but more is needed in terms of practical approaches and processes for
tribal governments.
Certainly, the approaches to accomplishing these critical elements will vary according to
the tribal community and culture, tribal commitment, the particular issue and decision, and
resources the tribal government may have to seek public participation. Tribes have an
opportunity to develop innovative measures outside of the administrative law context to
effectively provide meaningful public participation for their communities. Continuing education
of the community, two-way communication, responsiveness, and information sharing are vital
components to effectively gain community support and input.
Establishing a community advisory board or committee for the environmental program,
as discussed earlier, may prove helpful in gaining a community and cultural perspective that may
be different than the governmental decision-making body. An advisory board used in the initial
stages of a rulemaking can help:
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Generate questions, identify public concerns, make
recommendations, provide independent views on issues, formulate
meeting formats, and give insight on locations for meetings,
stakeholders or segments of the community whose comments
should be sought out.
The advisory board could meet on a monthly or quarterly basis depending on the environmental
program activities. In addition, a community working group comprised of a variety of tribal,
non-tribal and industry representatives may assist in draft rulemaking and review, prior to public
comments being solicited.
Some tribes have explored the issue of providing non-members with meaningful
opportunities to be involved and treated fairly by developing innovative approaches from a tribal
perspective. This is a timely issue as tribal environmental laws are increasingly regulating non-
member activities and industry continues to bring economic development to reservations. The
Tulalip Tribes of Washington, for example, has enacted a Planning Enabling Act59 that provides
non-members a fair voice in tribal land use planning. Like many checker-boarded reservations,
the Tulalip Reservation is held in both trust and fee simple ownership after the sale of Indian
allotments made during the early 20th Century. Reflecting the Tribes' desire for good
governance in tribal land use decision-making, the Act requires that:
"At least two members of the Tulalip Planning Commission be
non-Indian persons residing, occupying or owning land located
within the exterior boundaries of the Tulalip Indian Reservation."
These types of advisory boards of tribal members and/or non-tribal members can prove helpful in
establishing trust in a community and bringing together a cross-section of the tribal community.
Oftentimes, going out to the community to seek tribal member input rather than
requesting them to come to the government office is productive. Holding small group meetings
at tribal district or chapter halls will gain more public participation than at a large community
hearing. Tribal members are more likely to ask questions and give their opinion in a smaller
community setting. Tribal environmental programs may schedule open houses to encourage
tribal members to attend without the pressure of being recorded or feeling as though they have to
offer a comment. This atmosphere allows individuals to review the project and talk one-on-one
with the program staff. A short survey wherein the responder can remain anonymous can also
prove valuable if information or comments are sought on a specific issue. Of course, the survey
has to be carefully drafted to clearly and concisely gain a response without any built in biases,
and the staff must be willing to undertake interviews using the survey instrument. It may also
prove helpful to involve representatives from various stakeholders in developing the survey, if
one is to be used.
In 1999, the Gila River Indian Community in Arizona established an Environmental
Quality Compliance and Enforcement Policy, which includes an outreach program to assist the
regulated facilities in voluntarily complying with the Tribe's environmental laws.60 This Policy
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advocates education and technical assistance, and requires the Department of Environmental
Quality to:
"(1) Provide technical assistance to regulated community, as
resources permit; (2) provide current rules, policies and guidelines
to affected and interested parties; and (3) provide compliance
education opportunities for the regulated community."61
This Policy encourages the environmental programs to seek public participation, to inform
through education and information dissemination, and draft clear and consistent rules and
regulations. Although the Gila River Tribal Policy does not specifically state "public
participation," "meaningful involvement" or "fair treatment," the Policy addresses and
implements these fundamental principles.
All of these measures require a commitment on the part of the tribal environmental
programs to be more proactive and to solicit input from the community rather than meeting the
bare minimum standards of public participation. These measures are intended to foster public
awareness and make the government decision-making processes more open to the public. It is
through these measures that tribal governments can begin to gain input from its tribal community
and build support for its decision-making.
C. Tribal Examples Effectively Providing Meaningful Public Participation and
Fair Treatment
In addition to some tribes adopting administrative procedures laws, policies and
guidelines and advisory boards to ensure fair treatment and meaningful public participation,
there are tribes who have developed other fair treatment and meaningful involvement measures
for reservation residents. Some specific examples are presented below: (1) the Alaska Native
villages process of meaningful involvement; (2) Confederated Tribes of the Colville Reservation
Holistic Approach to Resources Management; and (3) Shoshone-Bannock Tribes Minority
Communications Board.
The work of the Maniilaq Association in Kotzebue (northwest Alaska)62 highlights the
continuing importance and use of oral traditions in Alaska Native villages. Many of the Alaska
Native villages are still very rural and isolated with no road system into or out of the villages
while access is generally by airplane or boat. In these communities, interaction and
communication is by word of mouth. Direct, one-to-one communication with the local official
and decision-maker on environmental issues is the standard, and the best means of providing
input. Certainly, this process is ideal for small communities where everyone knows one another,
families go back many generations, and there is established trust and goodwill. Traditional
observations and knowledge are also important and play a central role in decision-making.
The public process of gathering comments and input on land management and
environmental issues often begins with the posting of notices at the community post office and
stores, announcements on the public radio stations, communication via citizen band radios, and
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direct contact with individuals. A meeting is held and comments gathered. There are no set
limits on oral presentations by members, no guidelines or restrictions on the length of the
meeting although the meetings generally are long since many individuals express their opinions.
Again, this follows the Native traditions. The process is generally informal which is conducive
to good communication. The language spoken is the native language. Often, the decision-
makers gather comments or input by tape recordings in small groups or gatherings, take trips to
the homes to communicate with elders and family leaders, or talk with individuals as they visit
with them in the community. Written comments are rarely received. In addition to the posted
meetings, the environmental managers distribute monthly and quarterly newsletters to all
residents of the community to give updates and solicit participation. Daily interactions between
the environmental staff and community members are a priority. There is no established written
protocol or process for these public meetings, but they are successful in addressing the needs and
concerns of the community. This process based upon Alaska Native traditions provides for
meaningful involvement of community members.
Secondly, the Confederated Tribes of the Colville Reservation in Washington created a
holistic resource management approach to gather community input from their tribal membership
on a resource management plan including environmental regulation. Importantly, the Colville
Tribe recognized that:
Its community members had the right to participate fully in
formulating, planning, managing and applying governmental
regulations, and environmental decisions affecting tribal and
individually held lands and resources.
The project was an ambitious one that was completed over a two year period, and it is a model
for identifying issues and matters affecting the health, culture and environment of the people,
organizing community support, acquiring tribal member input and establishing creative methods
of gathering and responding to tribal member needs and rights. The project gathered information
and input at tribal district meetings, community gatherings, special meetings, one-on-one
interviews, and public meetings. The Tribe provided written presentations, handouts and clearly
documented goals and objectives for Tribal members to comment on. The Tribal program staff
ensured that they were responsive to Tribal members' needs and inquiries to facilitate and
empower the Tribal community. The results of the project have enabled the Tribe to formulate
Tribal goals, future visions, and resources management plans for the Reservation, which holds a
variety of resources managed by the Tribe.
The third illustration is the establishment of a "Minority Communications Board" by the
Shoshone-Bannock Tribes in Idaho.63 The Board was established in 1979 for the following
reasons:
"The Tribes have existed as a minority for more than a century,
and thus are highly aware of the feelings of frustration and
helplessness associated with minority status. To ensure a voice on
land use matters for non-Indians who reside on the Reservation and
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who are ineligible to vote in Tribal elections by virtue of the Tribal
Constitution and Bylaws, the [Land Use Policy] Commission shall
appoint a board to be known as the "Minority Communication
Board."64
The purpose of the three-member Board is to "provide a vehicle for communication and
cooperation between the Tribes and non-Indians residing on the Reservation."
The Land Use Policy Commission works "with the Board to ensure
that the land use problems and needs of non-Indians are expressed,
and that the legitimate land use rights of non-Indians are
protected."65
The Board meets on a quarterly basis with the Commission to discuss issues, gather
information about the status of various environmental matters, give input on pending matters,
raise questions and voice concerns that they may have about tribal land use issues and
environmental programs. The Board has proved useful in building non-Indian support for Tribal
jurisdiction over non-Indians on a wide variety of issues beyond environmental regulation. The
Board distributes information to other non-Indian landowners about the Tribal programs,
permits, and other regulations that are required throughout the Reservation. Non-Indians
routinely telephone or contact the Tribal Land Use and environmental programs about possible
violators of Tribal law, for assistance with potential pollution discharges, to inquiry about
permits and a myriad of other issues.
The Fort Hall Reservation is comprised of 97% tribal trust lands and 3% fee lands owned
by individual tribal members and non-Indians. The Tribes instituted this process over 35 years
ago, and it has proved successful in gathering input and providing for public participation of all
residents of the reservation. The Confederated Salish and Kootenai Tribes of the Flathead
Reservation in Montana have established a similar board to provide for meaningful involvement
of reservation residents. The Flathead Reservation is severely checkerboarded with non-Indians
owning a majority of the reservation lands. The Tribes initiated this board after non-Indians
challenged their jurisdiction during the approval of their treatment as a state application under
the Clean Water Act.
D. EPA's Role In Meeting the Charge
Beginning in 1970, with the National Environmental Policy Act (NEPA), the United
States Congress officially "recognized the profound impact of man's activities on the
interrelationship of all components of the natural environment . . . [and] the critical importance
of restoring and maintaining environmental quality to the overall welfare and development of
man . . ,"66 To this end, the federal government has committed billions of dollars in funding and
technical resources to the states for building environmental institutions, drafting codes and
regulations, and compliance and enforcement to administer the various environmental protection
programs contemplated in federal environmental legislation. The NEJAC emphasizes that
recognition of equitable tribal capacity building to protect tribal lands and resources is needed.
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Tribal governments share the same environmental concerns as the states, and therefore need
similar support.
Congress adopted NEPA and other federal environmental laws aimed at preserving and
reclaiming environmental integrity, but did not, originally, fully integrate American Indian and
Alaska Natives or effectively address the role tribal governments would play in regulating
activities affecting the environment on tribal lands. EPA's authority to delegate responsibilities
for the implementation and management of the various federal environmental programs to the
states was expressly included in the original statutes as adopted. Tribes have been working hard
to obtain favorable interpretation of the federal environmental laws, and are successfully
working with Congress and the EPA to amend the federal laws to include tribes. Providing
tribes with effective tribal regulatory powers to maintain management of tribal lands needs to be
a priority.
Today, many federal statutes permit EPA to authorize tribes to run the federal
environmental programs. EPA has been a leader in its commitment to assist in the legislative
amendments and to provide assistance to tribes. However, additional technical support and
funding are needed to help develop their environmental programs. EPA and Congress
specifically, have committed over 30 years and billions of dollars to building state environmental
programs, environmental management and enforcement infrastructures.67 Regulatory
development funding and technical assistance from the federal government needs to be increased
to help tribes develop and implement more effective environmental programs. EPA has an
unparalleled opportunity to help tribes attain environmental integrity within their reservations.
There are great differences among tribes in their capabilities and desire to actually
exercise their sovereign powers in the area of environmental management. Some have well-
developed and sophisticated governmental institutions which function effectively. Other tribal
governments are in great need of technical assistance, training programs, and stable sources of
funding in order to function to their full potential and serve the needs of their people. Some
tribal environmental programs are ineffective, in part, due to the lack or inadequacy of financial
resources and institutional development.
Tribal environmental programs are evolving at a rapid rate and are in the early stages of
developing ordinances and regulations for the tribal community. Some tribes may not have a
process to provide for meaningful public participation and fair treatment within their established
infrastructure. Certainly, tribal agencies can learn from other tribal examples and federal
processes and consider how such processes can be incorporated by the tribe, taking into account
their particular tribal values, and cultural and social norms. Some tribes do not have the staff or
expertise to develop these procedures and processes. Training could be offered at national or
regional EPA meetings, or be provided upon request by a specific tribe. Furthermore, training
could be developed by various tribal organizations.
Many tribes need financial and technical support to fully develop and implement their
ordinances and processes. Additional regulations, administrative procedures, or other
mechanisms to ensure public participation and fair treatment increase the burden on new
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programs and utilize the limited resources available for program implementation. A new
program that is inadequately funded or staffed is likely to fail, wasting the limited resources that
exist. Effective and efficient programs require funds, training and technical expertise.
NEJAC' Advice and Recommendations
Advice
3.1 EPA should recognize that tribal perspectives relating to individual rights and tribal
communal rights vary, and that these perspectives have implications for meaningful
involvement and fair treatment in Indian country and in Alaska Native villages.
3.2 EPA should recognize the current economic conditions facing tribes, and how these
conditions impact tribal government efforts to provide basic governmental services,
including environmental and public health protection, and the development and
implementation of meaningful involvement and fair treatment processes.
3.3 EPA should recognize the impacts of colonialism upon traditional tribal governments,
and how these impacts affect tribal governments' efforts to implement federal
environmental laws, including requirements for public participation and due process. (See
Appendix B)
3.4 EPA should recognize the impacts of the federal allotment policy on tribal jurisdiction
and initiate training to help sensitize and educate persons living or working within the
exterior boundaries of the reservation. (See Appendix B)
Recommendations
3.5 In fulfilling part of its trust responsibility, EPA should consult with tribes on how the
information, advice and recommendations provided in this document can be best used by
tribes to provide for, or enhance, meaningful involvement and fair treatment when tribes
develop and implement federally-approved tribal environmental programs.
3.6 EPA should develop materials to inform tribal governments about the federal
environmental laws and regulations requiring public participation and due process.
3.7 EPA should work with tribal members and community-based organizations to understand
their perspectives and interests in public involvement and due process methods for
federally-approved tribal environmental programs.
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3.8 EPA should support and give deference to tribal institutional definitions of due process
and public participation, which will tend to be based on tribal culture, traditions,
government structure, and social norms.
3.9 EPA should work collaboratively with tribes to develop training and education for tribes,
tribal members, and tribal community-based organizations on meaningful involvement
and fair treatment.
3.10 EPA should assist the tribes who are interested in developing administrative procedures
(including processes for public participation and due process) so they will be better
prepared to develop and implement federally-approved tribal environmental programs.
3.11 EPA should work collaboratively with tribes to ensure that federally-approved tribal
environmental programs provide for effective public participation and due process.
3.12 EPA should support coordination and collaboration among the tribes that have
established meaningful involvement and fair treatment processes with the tribes seeking
to develop their own processes.
3.13 EPA should help the tribes interested in fostering a dialogue with business and industry,
states, local governments, and non-members on the issues of sovereignty, jurisdiction,
and land ownership, which are likely to arise in the development and implementation of
meaningful involvement and fair treatment processes.
3.14 EPA should recognize the unique situation of Alaska Natives with respect to the
implementation of federal environmental laws in Alaska, and develop a better
understanding of how to work with Alaska Native Tribes to address the multiplicity of
environmental issues they face, including meaningful involvement and fair treatment in
the development and implementation of federal environmental laws by EPA and the State
of Alaska, and the State's environmental laws.
3.15 EPA needs to ensure there are adequate resources (technical and financial), and offer,
financial and technical assistance to tribes to promote and provide for meaningful
involvement and fair treatment in federally-approved tribal environmental programs.
Funding should be set-aside specifically for these purposes.
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CONCLUSION
The basic tribal traditional values of fairness, respect, honesty, the opportunity to speak
before a collective decision is made, consensus decision-making, and careful and thoughtful
deliberation predate any constitutional provisions or civil rights laws. These universal tribal
understandings of fairness are handed down by word of mouth, without any written mandate or
instruction. This document has explored how to best accommodate, define and incorporate these
fundamental tribal teachings of due process and meaningful involvement within the tribal context
as they relate to environmental regulatory authority.
This document has offered a candid discussion of the tensions between the adoption of
European-style government principles of due process and reliance upon tribal customs and
traditions; urged tribal governments to provide for meaningful involvement and fair treatment of
the tribal community at-large; and stressed the challenges tribes will likely face if they do not
provide opportunities for public participation and due process. This document has offered
numerous tribal examples and models, standards, tribal laws, administrative procedures and
policies addressing fair treatment and public participation that are working effectively in Indian
country and in Alaska. The NEJAC anticipates that these recommendations may, in some
measure, add to the development of tribal environmental programs as they serve their people and
community, and protect and preserve the integrity of tribal culture and homelands.
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ENDNOTES
1 Credit should be given to Dean Suagee, a former IPS Subcommittee member, for his
innovative thoughts and ideas in this area. His opinion and advocacy on the issues of public
participation and due process for tribal regulatory programs led the IPS Subcommittee to
consider the issues when it wrote its first document on Consultation with Tribal Governments,
and assisted the past Subcommittee in the initial outline of this document. Mr. Suagee has
informed the IPS that he wrote an article on the issues addressed in this document. See Dean
Suagee, Due Process and Public Participation In Tribal Environmental Programs, 13 Tul. Envtl.
L.J. 1 (1999). Although the NEJAC did not know of or rely upon his article in drafting this
document, we wish to recognize his work in the area.
2 The IPS has struggled with the use of the phrase "fair treatment" given the history of abuse
and federal policies developed toward Indian people and nations. Dean Suagee also discusses
the difficulties in applying the EPA's Environmental Justice principles and policies to tribal
governments and people in his paper, "Dimensions of Environmental Justice in Indian Country
and Native Alaska," Second National People of Color Environmental Leadership Summit -
Summit II, October 23, 2002, Environmental Justice Resource center at Clark Atlanta University.
3 U.S Environmental Protection Agency, Environmental Justice Homepage:
www.epa.gov/compliance.environmental]ustice: see also Exec. Order No. 12898, 59 Fed. Reg. 7629
(Feb. 11,1994).
4 Id.
5 Oglala Sioux Court, Civ. Ap. 90-348 at 5-6 (1991) (holding that due process requires a hearing
before attempting to remove anyone from the Pine Ridge Reservation).
6 Begay v. Navajo Nation, 15 Indian L. Rptr. 6032, 6034 (Navajo Sp. Ct. 1988).
7 Constitution of Spokane Tribe - Spokane Reservation, Wellpinit, Washington, Const. Art. IV,
6 \ m
8 Rosebud Sioux Tribe Constitution, Art. V, Section 3, Bill of Rights. See also, Art. VII, Bill of
Rights, Constitution and Bylaws of the Makah Indian Tribal of the Makah Indian Reservation,
Washington; Art. VII, Bill of Rights, Constitution and Bylaws for the Tulalip Tribe of
Washington.
9 Chapter 1-5, Adopted 02/04/88, Certified 02/16/88, Res. 1988-76.
10 E.g., Puyallup Tribal Administrative Procedure Act, Section 1.4 (1993). See also Colville
Administrative Procedure Act, and Salish and Kootnai Administrative Procedure Ordinance.
11 See generally Christine Zuni, Strengthening What Remains, 7 KAN.L.J. & PUB. POL'Y 17
(1997).
12 25 U.S.C. §§1301 - 1303 (1994). The ICRA was enacted over the objections of many tribal
governments, some of which believed that economic burdens of compliance would be too great
and others, especially the Pueblos of New Mexico, which felt their own cultural traditions were
superior to "white man's justice." Witnesses also testified that tribal traditions of fairness and
justice made the ICRA an unnecessary intrusion on tribal sovereignty.
The Indian Civil Rights Act: A Report of the United States Commission on Civil Rights 5
(June 1991).
14 Constitution of Jamestown S'Klallam Tribe of Indians, Art. IX, Bill of Rights.
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15 Constitution of the Skokomish Indian Tribe (May 3, 1938), as amended March 17, 1980,
Article IV - Rights of Individuals.
16 436 U.S. 49 (1978). At issue in Santa Clara was a tribal ordinance enacted by the Santa Clara
Pueblo in 1939 barring from tribal membership children of female tribal members married to
non-members. The Supreme Court ruled that the ICRA only provided relief by writ of habeas
corpus and did not waive tribal sovereign immunity.
17 See, e.g. In re The Sacred Arrows, 3 Okla. Trib. 332, 337-38 (D. Ct. Cheyenne-Arapaho
Tribes 1990) ("Anglo-American concepts of fairness and civil rights are sometimes
inappropriate, in their raw form, to Indian communities. These concepts can be applied only in
conjunction with the unique cultural, social and political attributes of Indian heritage.").
18 See Colville Confederated Tribes v. St. Peter, 20 Indian L. Rep. 6108, 6110 (Colv. Ct. App.
1993) ("We ... apply due process principles under ICRA with flexibility and in a manner
contextually adapted by the Colville Confederated Tribes.").
19 Berry v. Arapahoe and Shoshone Tribes, 420 F. Supp. 934, 943-44 (D. Wyo. 1976).
20 Stands Over Bull v. Bureau of Indian Affairs, 442 F. Supp. 360, 376 (D. Mont. 1977).
21 Johnson v. Lower Elwha Tribal Community, 484 F.2d 200, 203 (9th Cir. 1973).
22 Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d. Cir. 1996).
23 International Covenant on Civil and Political Rights, G.A. Res. 2000A (XXI) 21UNGAOR
Supp. (No. 16) at 52, U.S. Doc. A/6316 (1996), 999 U.N.T.S. 171 entered into force March 23,
1976.
24 G.A. Res. 217(A) III, Dec. 10, 1948, U.N. Doc. A/810, at 71.
25 See Draft Declaration on the Rights of Indigenous Peoples, E/CN.4/Sub.2/1994/2/Add. 1
(1994). The Draft Declaration, which is the leading international document on the rights of
indigenous peoples, was drafted over an eight-year period by the Working Group on Indigenous
Peoples, and submitted to the United Nations Commission on Human Rights' Sub-Commission
on the Prevention of Discrimination and Protection of Minorities. The Sub-Commission
approved the document in 1994.
26 OAS, GR/DADIN/doc.23/01 (HMay2001).
27 Id. at Article II.
28 Id. at Article XIII, 1,2,4.
29 Id. at Article XVIII, 4.
30 Id. at 5.
31 The American Indian Religious Freedom Act of 1978, S.J. Res. 102, Aug. 11, 1978, Pub. L.
No. 95-341, codified in part 42 U.S.C. § 1996.
32 25 U.SC. §§3001-13.
33 40 C.F.R. §25.1(1999).
34 40 C.F.R. § 131.20(b).
35 40 C.F.R. § 25.4.
36 See 40 C.F.R. §§ 124.1 and 124.l(e) (1999).
37 40 C.F.R. §§ 124.6(e), (b)-(c), 124.10(a)-(b), 124.11, 124.19.
38 42 U.S.C. §4321(1994).
39 42 U.S.C. § 4332 (2) (C). These statutory requirements are implemented under regulations
issued by the President's Council on Environmental Quality (CEQ). 40 C.F.R. Parts. 1500-08
(1996).
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40 The Tulalip Tribes in Washington and the Rosebud Sioux Tribe of South Dakota have
established such environmental review processes.
41 40 C.F.R. § 1508.8.5. In 1999, the CEQ issued a guidance urging federal agencies to more
actively involve tribes as cooperating agencies. CEQ. Memorandum for Head of Federal
Agencies, 1999.
42 "Public Involvement Policy of the U.S. Environmental Protection Agency, May 2003, U.S.
Environmental Protection Agency, Document #EPA233-B-03-002.
43 Id. atl.
44 Id. at 1-2.
45 Id. at 5-6.
46 Id. at 7, Appendix 1 -Guidance for Implementing Public Involvement at EPA.
47 In 1996, Michael O'Connell wrote a comprehensive paper on administrative law and its
application to tribal governments. The paper and its tribal administrative body examples have
been relied upon and utilized in this section of the report. See "Tribal Administrative Law"
presented at the American Bar Association 8th Annual Conference on Environment and
Development in Indian Country, November 7-8, 1996, Albuquerque, New Mexico.
48 Id.
49 B. Schwartz. Administrative Law at 1. (3d Ed. 1991).
50 5 U.S.C. §§ 551-559 (1994 & Supp. 1998).
51 See supra note 10, Puyallup Tribal, and Colville Tribal Administrative Acts, and Salish and
Kootenai Administrative Procedure Ordinance. See also Three Affiliated Tribes Administrative
Procedure Act.
52 Puyallup Tribal Administrative Procedure Act, Section 1.4.
53 Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
54 Puyallup Tribal Administrative Procedure Act, Section 1.12, supra note 10.
55 Colville Administrative Procedure Act, Section 2-4-19(7); Puyallup Administrative Procedure
Act, Section 1.19(7).
56 Salish & Kootenai Tribal Administrative Procedure Ordinance, Section 28(a), Section 29(4),
supra note 10; Three Affiliated Tribes Administrative Procedure Act, Section 1.12(4) and 1.15,
supra note 10.
57 Puyallup APA, Section 1.97(7); Colville APA, Section 2-4-19(7).
58 Addendum D in "Guide on Consultation and Collaboration with Indian Tribal Governments
and Public Participation of Indigenous Groups and Tribal Members in Environmental Decision
Making," November 2000, U.S. Environmental Protection Agency, Document # 300-R-00-009.
59 Section 4 Tulalip Tribes Planning Enabling Act.
60 Gila River Indian Community "Department of Environmental Interim Compliance and
Enforcement Policy," Initial Date: February 5, 1999. Revised June 1, 2001.
61 Id. at 1.
62 Hazel Apok, Environmental Program Director, Maniilaq Association, provided the
information on the Alaska Native oral traditions to the IPS.
63 Shoshone-Bannock Tribes "Fort Hall Land Use Operative Policy Guidelines," September 27,
1979, Chapter VI.
64 Id. at Section VI-1.
65 Id. at Section VI-2.
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6642U.S.C.4331(a).
67 See Judith V. Royster and Rory Snowarrow Fausett, "Control of the Reservation Environment:
Tribal Primacy, Federal Delegation, and the Limits of State Intrusion," 54 WASH. L.REV. 581,
629-630 (1989).
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APPENDIX A: NEJAC Charge
NEJAC/Indigenous Peoples Subcommittee
Tribal Environmental Justice
Charge
Addressing the environmental justice issues facing Native Americans requires an
understanding of the complexities of federal Indian law and policies. Environmental justice issues
facing Native Americans are quite varied. One of the primary issues pertains to the inadequate
technical and financial support for tribal government environmental and public health protection
programs, such as: 1) solid waste management, 2) surface water, groundwater and drinking water
protection, 3) management and disposal of toxic substances, 4) air quality management, and 5) lack
of consistent and effective federal direct implementation of environmental programs in Indian
country. Other issues pertain to the impacts on tribal treaty rights, usual and accustomed use areas,
cultural resources, and sacred places, both on or off the reservations. A further set of issues pertain
to the lack of meaningful involvement and fair treatment of tribal members and others when federal
environmental programs are managed or implemented in Indian country or in areas of interest to
Alaska Natives.
In 2000, the National Environmental Justice Advisory Council (NEJAC) produced a
document, "Guide on Consultation and Collaboration with Indian Tribal Governments and the
Public Participation of Indigenous Groups and Tribal Members in Environmental Decision
Making," which did an outstanding job of discussing how federal agencies, like EPA, can most
effectively work with tribes. The document also touched on the importance of providing for
meaningful public participation and fair treatment, which are fundamental principles of
environmental justice. However, the Guide does not go into detail about how meaningful public
participation or fair treatment could be pursued by tribal governments.
The Agency recognizes it has a responsibility to work with tribal governments, as it does
with state and local governments, to support their efforts to address environmental justice issues,
especially those which pertain to the implementation of federal environmental law. The Agency,
therefore, is asking the Indigenous Peoples Subcommittee, through the NEJAC, to provide advice
and recommendations on the following question:
How should EPA work with tribes to identify and address environmental justice
issues arising within Indian country and of concern to Alaska Natives related to
the development and implementation of federally authorized/approved tribal
environmental programs?
(a) In what ways should EPA assist Tribal governments to provide meaningful
public involvement in the development and implementation of federally
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authorized and/or approved tribal environmental programs? Attention should
be given to the following areas:
(1) involvement of tribal members and tribal community organizations
(2) involvement of non-tribal residents
(3) involvement of other stakeholders (on or off the reservation)
(b) In what ways should EPA assist Tribal governments to provide fair treatment
of all stakeholders in the development and implementation of federally
authorized and/or approved tribal environmental programs? Attention
should be given to the following areas:
(1) treatment of tribal members and tribal community organizations
(2) treatment of non-tribal residents
(3) treatment of other stakeholders (on or off the reservation)
In sum, what short-term and long-term actions should the Agency take to assist tribes to
address the meaningful involvement and fair treatment issues in Indian country and of
concern to Alaska Natives related to the development and implementation of federally
authorized/approved tribal environmental programs.
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APPENDIX B: Significant Federal Policies Impacting Tribes
Significant Federal Policies Impacting Tribes
I. Background
The IPS believes that EPA should have a fundamental understanding of the history of
relations between American Indian and Alaska Native tribes and the federal government, the
unique political status of tribes in the United States, and the special trust relationship that EPA
and other federal agencies have with tribes. These federal policies and trust obligation are
discussed in this appendix. Additionally, in Section C, this appendix presents the regulatory
jurisdiction of tribes over environmental matters occurring on reservations. It is only through
this understanding that the EPA, and readers of this document, will be able to grasp the complex
issues and concepts discussed, comprehend the advice and recommendations offered by the IPS,
as well as appreciate the opportunities and challenges the EPA will face in working with tribes to
provide for meaningful involvement and fair treatment in the development and implementation
of federally authorized/approved tribal environmental programs.
This appendix presents four distinct periods of federal Indian policy (although there are
others) primarily applicable to the lower 48 tribes. These four periods, commonly known as
allotment, reorganization, termination, and self-determination, have impacted tribal sovereignty
and are relevant to this document. Over a 130-year period, the overriding purposes of the federal
government changed dramatically, shifting back and forth between two fundamentally different
visions of the future of Indian people in American society. During the allotment and termination
eras, the overriding premise was that Indians, as individuals, should be assimilated into
mainstream American society, and that Indian nations as politically distinct governments, should
cease to exist. In contrast, during the reorganization and self-determination eras, federal policy
supported the continued existence of tribes as politically distinct communities. These ever-
changing federal policies significantly impacted tribal governments.
Although some of these federal policies impacted Alaska Natives, the situation for
Alaska Native tribes is fundamentally different then tribes in the lower 48 due to the Alaska
Native Claims Settlement Act1. The IPS sees the need to provide a separate discussion of Alaska
Native land and resources, and governmental and corporate structure issues in this appendix.
The IPS calls upon the EPA to recognize the unique situation of Alaska Natives with respect to
EPA tribal environmental initiatives, and to consider ways to best address the numerous
pollution controls and environmental injustices on Alaska Native lands. The IPS also
recommends that the EPA consider conducting a separate study to review and address the myriad
of environmental issues facing Alaska Natives, and the unique legal status of Alaska Natives.
A. Allotment
Prior to 1871, when treaty-making with tribes ended, Congress recognized tribal
governments through treaties, and tribes retained sovereignty over their territories. From 1871 to
1 85 Stat. 688, 43 U.S.C.
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1934, federal policy changed to one of assimilation, further diminishing tribal self-government.
For many, the allotment era, beginning in 1871, was the most devastating historical blow to
tribalism and Indian life, impacting tribal cultures on a massive scale. This period of federal
Indian policy converted some tribally-held communal lands to individual land ownership. This
was the principle legal mechanism by which the assimilation policy was carried out. During this
era, the federal government attacked the core value of tribal cultures on several fronts:
traditional religious practices were outlawed; children were taken away to off-reservation
boarding schools; tribal landholdings were confiscated and converted into individual allotments:
the so called "surplus" lands were made available for settlement by non-Indians; and traditional
tribal institutions were undermined and weakened.2
The linchpin of this policy was the Dawes Act, also known as the General Allotment Act
of 1887.3 President Theodore Roosevelt most forcefully described this Act as "a mighty
pulverizing engine to break up the tribal mass. It acts directly upon the family and the
individual."4 The results of the allotment period are truly devastating, including a loss of about
two thirds of Indian lands: tribal lands were reduced from 138 million in 1887 to 52 million by
1934. 5 More than 26 million acres of allotted land were transferred from the tribe to individual
Indian allottees and then to non-Indians through purchase, fraud, mortgage, foreclosures and tax
sales, which has resulted in the contemporary presence of a substantial number of non-Indians
living within the boundaries of many Indian reservations.6 For the first time, reservations
became checkerboarded, consisting of tribal, individual Indian, individual non-Indian, and
corporate properties.
When the reservations were opened to settlement, traditional governments were severely
impacted and the authority of the tribes was undermined by the Bureau of Indian Affairs (BIA)
agents. The great influx of non-Indian settlers, coupled with the loss of communal lands and the
federal government's policies outlawing traditional religious practices while promoting Christian
religious and educational programs, simply eroded much of the tribes' ability to govern. The
cores of the tribal cultures were driven underground, and the BIA and Christian missionaries
became the de facto governing forces on reservations.
In 1883, the Secretary of Interior established the Courts of Indian Offenses to replace
tribal forums of justice. The purpose of these courts was to educate and "civilize" the tribes with
the BIA and Congress providing the funding for the courts.7 During this period, traditional tribal
law was seriously weakened, losing its authority to a BIA legal system composed of the Indian
2 See generally, Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1 (1995).
3 Act of Feb. 8, 1887, Ch. 119, 24 Stat. 388 (1887) (codified as amended at 25 U.S.C. §§ 331-
34, 341-42, 348-49, 354, 381 (1983)).
4 Steven Tyler, A History of Indian Policy 104 (1973).
5 The Indian land base of 138 million acres at the enactment of the General Allotment Act of
1887 had been reduced to 48 million acres by enactment of the Indian Reorganization Act of
1934, which repudiated the allotment era policies. Felix S. Cohen, Handbook of Federal Indian
Law 105-07 (1982 ed.). See also Royster, supra note 3.
6 Charles F. Wilkinson, American Indians, Time and the Law 20 (1986).
7 F. Cohen, Handbook of Federal Indian Law, 333 (1942 ed.).
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APPENDIXB: Significant Federal Policies Impacting Tribes
agent, a code of Indian offenses, Indian police, and agency-appointed chiefs and judges.8 Today,
about twenty-two courts known as CFR courts (referring to the Code of Federal Regulations), are
heirs to the Courts of Indian Offenses.9 In 1885, Congress enacted the Major Crimes Act to
extend federal court jurisdiction over felony criminal offenses committed by Indians on Indian
reservations.10 The overwhelming effect of the allotment period weakened the traditional tribal
governments and law.
Alaska had its own allotment law, known as the Alaska Native Allotment Act (ANAA),
to provide Alaska Natives with an opportunity to obtain individual title to land.11 The Act was
different than the General Allotment Act in that it was not intended to break up large reservation
lands, but rather established a preference right to perfect legal title to the land Alaska Natives
used and occupied. Thus, the Act gave Natives a preference right to perfect title to lands
historically used by them, and to defeat homestead and other claims. The Act prevented
continued loss of Native homelands since there were no reservations or ways to protect title to
Native lands.
The Act, however, was not self-executing like the General Allotment Act, and the ANAA
required individuals to file a written application and establish their use and occupancy. This
bureaucratic process lent itself to abuse, rigorous factual proof for individuals, shifting BIA
interpretations of legal and factual criteria, and due process violations. In 1980, Congress sought
to eliminate some of the criteria in the passage of the Alaska National Interest Lands
Conservation Act.12 Numerous issues still remain with regard to allotments approved under the
Act and are the focus of much litigation. Despite the Act being repealed the lands conveyed
remain a focal point of the federal trust responsibility to Alaska Natives. Additionally, it has
been repeatedly held in Alaska that the federal government has a fiduciary responsibility to
administer these lands for the benefit of Alaska Natives.13
8 Christine Zuni, Strengthening What Remains, 7 KAN. L.J. & PUB. POL'Y 17 (1997). Some
Indian tribes were exempted from this system such as the Five Civilized Tribes - the Cherokees,
Choctaws, Creeks, Chickasaws and Seminoles, and the Indians of New York, the Osage, the
Pueblos of New Mexico and Arizona, and the Eastern Cherokee.
9 The regulations that govern these courts are found at 25 C.F.R. Part 11, Law and Order on
Indian Reservations (2002).
10 18 U.S.C. §§ 1153, 3242 (1984 & Supp. 1988). The Major Crimes Act was a Congressional
reaction to the Supreme Court decision in Ex Parte Crow Dog, 109 U.S. 556 (1883), which
reserved a lower court decision finding Crow Dog guilty of murdering another tribal member
Spotted Tail. The tribal resolution and remedy included an ordered gift and reconciliation
among the families, which was objected to by the non-Indian public. See Sidney L. Hairing,
Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the
Nineteenth Century 10-12 (1994).
" Act of May 17, 1906, 34 Stat. 197, codified at 43 U.S.C. § 270-1 (1970). This Act was
repealed under the Alaska Native Claims Settlement Act, 45 Stat. 710, 43 U.S.C. § 1617.
12 Act of December 2, 1980, P.L. 96-487, 94 Stat.2371, codified in part of 16 and 43 U.S.C.
13 SeeAguilar v. United States, 474 F.Supp. 840 (D. AK. 1979), the preference right under the
Act to Alaska Natives held sufficient to require the United States to recover lands for Native
applicant if erroneously conveyed to another.
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B. Indian Reorganization
In 1934, the federal government reversed its national policy to one of supporting tribal
self-government when Congress passed the Indian Reorganization Act (IRA) of 1934.14
Congress repudiated the policies of the allotment era, and attempted to encourage economic
development, self-determination, cultural plurality, and the revival of tribalism.15 The overriding
purpose of the IRA was to establish a means to encourage and facilitate tribes to assume greater
self-government, both politically and economically. The IRA provided tribes the opportunity to
adopt their own constitutions and establish their own court systems to replace Courts of Indian
Offenses. The Department of Interior provided tribes boilerplate versions of constitutions based
upon the United States government model yet a tribe's version required Secretarial approval to
become effective.16 Not all tribes that organized under the IRA adopted constitutions, and a
number of tribes did not organize under the IRA.17
As originally enacted, the IRA did not apply to Alaska. The IRA, however, was amended
in 1936 to take into account the unique needs of Alaska Natives.18 The Alaska amendments
permitted the Secretary of Interior to designate "public lands which are actually occupied by
Indians or Eskimos" either as new reservations or as additions to existing reservations.19 Under
this authority, the Secretary of Interior designated reservations for the Venetie, Karluk, Akutan,
Diomede, Unalakleet, Wales and Hydaburg communities.20 The amendment also permitted
Alaska Natives to organize under federal constitutions and business charters, like the lower 48
tribes, if they had a "common bond of occupation, or association, or residence within a well
defined neighborhood, community or rural district."21 The amendment essentially addressed the
issue of isolated rural Alaska Native villages and a few large reservations.
Criticisms of the IRA approach include the belief that the model constitutions and model
codes for tribes limit criminal jurisdiction of tribal courts to minor offenses, subjected tribal laws
and ordinances to Department of Interior approval, and limited the sentencing power of tribal
courts to a maximum imprisonment period of six months for criminal offenses. Most of the
tribal governments established under the IRA, unlike the federal and state governments, have no
provision for separation of powers. The governing body is the tribal council, and in many
instances, it performs both legislative and executive responsibilities. Furthermore, because the
IRA governments rely on the European style of representative government through elections by
14 25U.S.C§§461-94(1983).
15 See David H. Getches et al, Federal Indian Law: Cases and Materials 216-21 (3d ed. 1993).
16 See25U.S.C. §476.
17 During the two year when the tribes could accept or reject the IRA, 258 elections were held.
181 tribes accepted the IRA, and 77 tribes rejected it. Getches, supra note 15 at 221.
18 Act of May 1, 1936, 49 Stat. 1250, 25 U.S.C. § 473a.
19 25 U.S.C. § 496 (1970). This section was repealed by the Federal Land and Policy
Management Act of 1976, sec. 703, 90 Stat. 2789.
20 Hydaburg was held to be not properly established as a reserve under the IRA. United States v.
Libby, McNeil & Libby, 107 F.ed Supp. 697 (D. Alaska 1952).
21 25 U.S.C. § 473a.
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districts on the reservation as well as the use of English and the written word, the IRA has been
perceived as an assault on traditional tribal governments. As a result, some IRA elected tribal
governments are controversial22 in that they operate to the exclusion of traditionalist interests and
depart from consensus-based traditional government.23
On the other hand, the elimination of the absolute discretion exercised by the Interior
Department in tribal internal affairs is considered a positive aspect of the IRA. Another by-
product of the IRA was better control and management of tribal property. In other words, the
IRA sought to end the paternalistic regime of the BIA superintendent and institute a more
representative system to modify the control of the federal government. The experiences of IRA
tribes and the powers exercised under the new "modern governments" vary as widely as the
tribes themselves. Tribal governments achieved considerable revitalization during this era.
C. Termination
Beginning in the mid-1940s, the federal government began to move away from the IRA
ideals and once again moved towards a complete integration of Indians into the general U.S.
population. Congress unanimously voted to terminate the federal trust relationship with
hundreds of tribes across the country and transfer jurisdiction over to the states. The policy was
touted for ending federal supervision of Indian people and for rapidly assimilating tribes.
Although termination has ended, it stands as a chilling reminder to Indian people that Congress
can unilaterally decide to extinguish the special relationship the federal government has with
tribes, without Indian consent.
During this period Congress passed "Public Law 280" in 1953. Public Law 280 was
general legislation that extended state civil and criminal jurisdiction into Indian Country.24 As
originally enacted, Public Law 280 delegated jurisdiction over most crimes and many civil
matters to six states: California, Nebraska, Minnesota (except for the Red Lake Reservation),
Oregon (except for the Warm Springs Reservation), and Wisconsin (except for the Menominee
Reservation). Alaska was included in this list in 1959 at the time of its statehood.25 A total of
sixteen states eventually became Public Law 280 states. The result of this law was
unprecedented and served to limit the jurisdiction of tribal courts and increase state jurisdiction
over Indians residing on reservations. In addition, other aspects of the federal termination
program included transfer of educational responsibilities from the tribes and federal government
to the states; the establishment of the Indian Claims Commission to hear and "wipe the slate
clean" of violations of treaty provisions, land takings, etc, against the federal government26; and
relocation programs to encourage Indians to leave the reservation and move to urban areas.
22 See Getches, supra note 15 at 223-224.
23 See Vine Deloria, Jr. & Clifford M. Lytle, American Indians, American Justice 15 (1983);
Jerry Mander, In the Absence of the Sacred 279-83 (1991).
24 67Stat.588(1953).
25 See Goldberg, Public Law 280, The Limits of State Jurisdiction Over Reservation Indians, 22
UCLA L.REV. 535(1975).
26 The Indian Claims Commission Act of 1946, 25 U.S.C. §§ 70 - 70V (1984), established a
three member commission to adjudicate Indian claims against the United States.
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D. Self-Determination
Ironically, termination— which was designed to once and for all detribalize Indians--
produced the opposite effect. The threat of termination galvanized tribes nationally to protest the
congressional move towards termination and resulted in the establishment of national Indian
organizations such as the National Congress of American Indians, National Indian Youth
Council, and National Tribal Chairman Association. In the 1960's, federal policy entered a
period of gradual transformation. In 1970, President Richard Nixon issued a landmark message
to Congress calling for a new federal policy of self-determination for Indian nations. Under this
policy, tribal governments grew increasingly sophisticated and were able, for the first time, to
deliver meaningful governmental services to their people.
This policy of self-determination was supported by legislation such as the Indian Self-
Determination and Education Assistance Act of 1975.27 The Act expressly authorizes the
Secretary of Interior and Health and Human Services to contract with, and make grants to, tribes
and other tribal organizations for the delivery of services. The Act marked a fundamental change
in philosophy concerning the administration of tribal affairs - the federal government funds
tribal programs, but the programs are planned and administered by the tribes themselves.
Beginning in the 1970's, there has been an unprecedented volume of tribal legislation, most
favorable to tribal interests and supported by tribes. In most instances, Alaska Natives are
included in this legislation to receive and participate in federal programs.
The federal legislation incorporates tribal governments as permanent players in the
federal system. In 1968, the Indian Civil Rights Act (ICRA) was passed and the federal policy
of recognizing tribal powers of self-government, including the authority to establish court
systems for administering justice, was once again reaffirmed. While supporting tribal autonomy,
the ICRA required tribal governments to adhere to most of the requirements of the Bill of
Rights.28
Today, federal legislation continues to support tribal self-government, increased funding
for court operations, other dispute resolution systems, and environmental programs. Enacted in
1993, the Indian Tribal Justice Act focuses on the development and improvement of tribal court
systems as a whole.29 The Act provides funding to tribal judicial systems, training programs for
court personnel, and established an Office of Tribal Justice to handle funding to tribes and to
promote cooperation between tribal, state and federal courts.30 Tribal institutions are in a period
of rapid growth and development. The number of tribal courts is increasing while training and
financial support have bolstered confidence in, and support of, the tribal systems.
27 25 U.S.C. §§ 450a - 450m (1984).
28 25 U.S.C. §§ 1301-41(1988).
29 Public L. No. 103-176, 107 Stat. 2004 (1993) (codified as amended at 25 U.S.C. § 3601
(1994)).
30 See Diana B. Garonzik, Full Reciprocity for Tribal Courts from a Federal Court Perspective:
A proposed Amendment to the Full Faith and Credit Act, 45 EMORY L.J. 723, 747-48 (1996).
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APPENDIX B: Significant Federal Policies Impacting Tribes
E. Alaska Native Claims Settlement Act of 1971
In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA), a major
piece of federal legislation impacting the legal status and land ownership rights of Alaska
Natives. Today, this complex legislation is essential to any discussion of Alaska Natives issues.
In ANCSA, the tribes relinquished aboriginal claims to most of the state affecting 365 million
acres.31 In return, Alaska Natives agreed to receive land selection rights to 44 million acres
along with monetary payments. Tribes with governmental powers did not receive the land title.
Instead, the land was conveyed to Native Corporations - which Congress mandated were to be
formed under Alaska state corporations laws. Twelve Regional Corporations own the subsurface
land title, which includes mineral development rights for oil, coal, natural gas, gravel, etc.
ANCSA also recognized 210 Native Village Corporations, which received surface estate title.
Of the 210 Native Villages, approximately 120 are organized as municipalities under state law.
Of those 120 Native villages, 70 are organized under the Indian Reorganization Act. The
remaining ninety Alaska Native communities are governed solely by traditional village
councils.32
There is a major distinction between the lower 48 tribes and the tribes in Alaska - there
are no longer any reservations in Alaska (except for one - Annette Island) following the passage
of ANCSA. Most of the land transferred to Natives under ANCSA is owned by the Native
Regional and Village Corporations, most of which do not exercise tribal governmental functions.
There are however, a few Alaska Native Villages that are considered federally- recognized tribes
and hold some land. In 1998, the United States Supreme Court interpreted ANCSA to limit the
territorial jurisdiction of Alaska Native tribes.33 In Alaska v. Native Village of Venetie Tribal
Government, the Court held that the tribe's former reservation is not considered "Indian
country." This decision limited tribal authority to enact and impose a business activity tax upon
private contractor, who was not a member of the tribe. This decision raises issues regarding the
authority of tribes to exercise environmental regulatory jurisdiction on their lands over non-
members.
Moreover, the Venetie decision made it clear that land conveyed to the Native Regional
and Village Corporations under ANCSA is not "Indian Country". In Alaska, because the
Regional and Village Corporations, for the most part, are private corporations which own their
lands separately from the federally recognized tribes, there are open legal questions about the
power of the local tribe to exercise environmental jurisdiction over Native Corporation lands.34
F. The Federal Trust Responsibility to Tribes
Tribes in the United States, unlike any other indigenous group in the world, have
significant standing because they have a trust relationship with the federal government
31 David H. Getches et al., Federal Indian Law: Cases and Materials 907 (41 ed. 1998).
32 See David S. Case, Alaska Natives and American Laws 373-78 (Rev. ed. 1984).
33 Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998).
34 IPS would like to thank Alma Upicksoun, Vice President and General Counsel of the Arctic
Slope Regional Corporation, for her review and comments on this section relating to ANCSA.
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APPENDIXB: Significant Federal Policies Impacting Tribes
established by judicial decisions, treaties, agreements and federal laws that set forth certain
obligations, commitments, and guarantees for tribal homelands, tribal people, and tribal
resources. The courts, Congress, and the Executive Branch have recognized the trust
responsibility of the United States throughout the span of federal Indian law.35
The foundation of the trusteeship of the federal government to Indian tribes is traceable to
the first cessions of Indian lands to the federal government. The promises made by the United
States in exchange for millions of acres of tribal land impose on the federal government "moral
obligations of the highest responsibility and trust."36 This principle that the federal government
has a duty to keep its word and fulfill its promises to tribes is known as the "doctrine of trust
responsibility." Most fundamentally, the modern form of the federal government's trust
obligation is the "duty to protect [tribal] separatism by protecting tribal lands, resources, and the
native way of life."37
The Supreme Court has made clear that in administering Indian trust property or trust
money, the United States is a trustee, subject to the fiduciary duties attendant to a trust
relationship.38 The Government's trust obligations arise whenever the United States exercises
control over, or management of, the trust property of Indian tribes and individual Indians. The
courts have held federal officials to "moral obligations of the highest responsibility and trust"
and "the most exacting fiduciary standards,"39 and to be "bound by every moral and equitable
consideration to discharge its trust with good faith and fairness."40
Each federal agency, including EPA, is bound by this trust responsibility. The EPA 1984
Indian Policy states: "[I]n keeping with the federal trust responsibility, [EPA] will assure that
tribal concerns and interests are considered whenever EPA's actions and/or decisions may affect
reservation environments . . . [T]he Agency will endeavor to protect the environmental interest
of Indian Tribes when carrying out its responsibilities that may affect the reservations."41 This
Indian Policy has been reaffirmed by subsequent EPA Administrators.
The IPS notes that EPA's policies have been primarily aimed at assisting tribes in
regulating activities on their own reservations. EPA has not taken an active stance on pollution
35 For a general discussion of the trust doctrine see Felix S. Cohen, HANDBOOK OF
FEDERAL INDIAN LAW 220-28 (Rennard Strickland et al, eds. 3d ed. 1982). See also Mary
C. Woods, Indian Lands and the Promise of Native Sovereignty: The Trust Doctrine Revisited,
UTAH LAW REV. 1471, 1496-97 (1994).
36 Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942). See also United States v.
Mason, 412 U.S. 391, 397 (1973).
37 Wood, supra note 35 at 1496, and footnote citing Northern Arapahoe Tribe v. Hodel, 808 F.2d
741, 750 (10th Cir. 1987) (finding trust duty to protect tribe's wildlife resources).
38 United States v, Mitchell, 463 U.S. 206, 225 (1983).
39 Seminole Nation v. United States, supra note 36 at 297.
40 United States v. Payne, 264 U.S. 446, 448 (1924).
41 U.S. Environmental Protection Agency, EPA Policy For The Administration of
Environmental Programs on Indian Reservations (Nov. 8, 1984).
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affecting reservation environments42 or tribal risks associated with transboundary pollution of
tribal use of water and wildlife.43 The IPS calls upon EPA to address the ever-present
contamination occurring on American Indian and Alaska Native lands, and to seek ways to assist
in the protection of tribal homelands. Additionally, EPA must remember that tribes are not
merely another community or stakeholder group. EPA has a duty and obligation to protect and
preserve tribal and Alaska Native lands, and to ensure that the best interests of tribal
governments and Alaska Natives are not harmed or subordinated to the trustee's own interests.
Accordingly, the IPS cautions the EPA to consider and implement its Charge judiciously to
ensure that its focus of public participation and due process by tribal governments does not
conflict with or interfere with its protection of tribal rights and Indian self-determination.
G. Environmental Jurisdiction on Tribal Lands
The fundamental notions of tribal sovereignty relevant to pollution control are: dominion
over the territory of the reservation, sovereignty over citizens of the tribe, the right to make and
enforce laws and domestic policy, and control of the natural resources, including the reservation
environment. In earlier times, a tribe's inherent authority to exercise jurisdiction throughout its
territory was nearly complete and unchallenged. The federal allotment policy of creating
checkerboard land base on some reservations has made the assertion of tribal authority more
complex. In this respect, the early federal policies continue to affect tribal sovereignty and
inform the interpretation and application of the law in Indian country.
Indian tribal sovereignty remains a doctrine of considerable vitality because of its internal
significance to tribal governments and the resulting external consequences for the states and non-
Indians within Indian country. Black's Law Dictionary defines "sovereignty" as "the supreme,
absolute, and uncontrollable power by which any independent state is governed."44 Today, tribes
continue to exercise their sovereignty over their territory involving a wide range of governmental
functions, but still face many threats to their reservation environments. Through the exercise of
their sovereignty, tribes seek to address the contamination and pollution impacting their
communities.
1. Development Impacting Indian Lands
There are over 560 federally recognized Indian tribes in the United States.45 Indian tribes
and individual tribal members own approximately 56.6 million acres of land, an increase of more
42 See Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989).
43 A 1991 EPA Concept Paper opts for a consensual approach on transboundary pollution issues
involving tribal and state governments, and recommends that EPA will act as a moderator for
discussion rather than acting as trustee for the tribes in protection their resources. U.S.
Environmental Protection Agency, Federal and State Roles in Protection and Regulation of
Reservation Environments (1991).
44 Black's Law Dictionary 1568, 4th ed. Rev. (West Publishing Co. 1968).
45 Getches, supra note 15 at 8. Not all native nations are federally recognized.
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than 4 million acres since 1980.46 Half of the 1.9 million American Indians live on or adjacent to
one of 310 reservations.47 Today, reservations contain one or more of three types of land tenure:
(1) tribally owned land held in trust by the federal government; (2) allotted lands owned by
individual Indians held in trust by the federal government; and (3) parcels of land owned in fee
simple, usually by non-Indians, as a result of the federal Allotment policy.
The BIA continues to exercise broad discretion in dealing with Indian governments.
Federal statues, as well as the day-to-day supervision over land and resource development on
reservations, grant the BIA substantial involvement over timber, mineral, agricultural and range
resource development. The BIA participates in resource negotiations, oversees contracts and
leases, and collects royalties and payments on resources. At times, BIA's decisions relating to
the economic development of tribal resources are controversial, and often times receive criticism
for not being in the best interests of the tribe and/or individual tribal members.
In addition to the BIA, other federal agencies including the Bureau of Land Management,
Department of Energy, Bureau of Reclamation, and the Corp of Engineers, make decisions
impacting tribal lands and resources, either on-reservation or off-reservation. These decisions
often impact lands where tribes exercise their subsistence rights of hunting, fishing and
gathering. The lands often contain valuable cultural resources such as sacred and spiritual sites
for tribes. The lands, too, have been polluted, and tribes must develop ways to protect these
natural and cultural resources.
Corporation pressure to develop reservation resources has often been overwhelming and
damaging to reservation environments. In some leases and contracts signed by some tribal
leadership and the BIA in the 1950's, devastating consequences have resulted which affect the
tribes today. Tribes and individual tribal members lease their lands to non-Indians for grazing,
mining, commercial and residential purposes. Most leased rangeland is seriously overgrazed.
Reservations have been mined for coal and uranium, and many of these operations have left a
barren landscape with lethal contamination impacting the health of tribal people, water, soils and
air.48 In addition, the BIA's past timber clear cutting practices have led to the near decimation of
tribal forest, wildlife, and fishery resources. Consequently, the past exploitation of tribal
resources has severely impacted tribal traditional economies and way of life. Certainly, the use
of tribal lands and resources might have resulted in short term benefits, but they have also had
46 Id. at 20. Nearly all the land held is trust by the federal government for the tribes or their
individual members. Id. at 21. Another 44 million acres are owned by Alaska Natives pursuant
to the Alaska Native Claims Settlement Act. Id. at 20.
47 Id. at 8, 13,15.
48 See Winona LaDuke, Environmental Work: An Indigenous Perspective, 8 N.E. Indian Q. 16,
17 (1991); See also Mary Christine Wood, Protecting the Attributes of Native Sovereignty: A
New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources, 1995 UTAH L.
REV. 109, 166-67.
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profound long-term ecological and cultural consequences. Today, tribes have to confront the
severe environmental problems resulting from these activities.49
Currently, some tribal governments continue to receive intense pressure to develop and
industrialize their reservation lands. Many tribes have tribal corporations, created under the IRA,
poised to enter into economic ventures with outside industry. Many tribal members oppose the
use of their lands for non-Indian development, mining, and waste disposal, and have challenged
tribal council efforts to approve such ventures. Thus, tribal governments must address the
continuing tension between building strong economies to meet mounting tribal social needs, and
ensuring that the natural resources are not overexploited and the reservation environment and
land base remain viable for future generations. "Managing" the environment to increase
productivity or to restore or preserve the environmental norms will have enormous future
consequences for tribal communities.
2. Tribes as Sovereign Nations - Protecting Tribal Homelands
Tribal authority to regulate in Indian Country arises from the inherent sovereign powers
of Indian tribes, which were self-governing nations for centuries before the European nations
arrived on this continent. The three branches of the United States have continually recognized
Indian tribes as politically distinct nations possessing inherent sovereign powers. In the early
1800's, in a trilogy of foundation Indian law cases, Supreme Court Chief Justice John Marshall
established that Indian tribes possessed powers of inherent sovereignty that arise from tribes'
status as independent nations before and at the time of European arrival.50 Felix Cohen, the
prominent master of Indian law, wrote in his treatise on Indian law:
Perhaps the most basic principles of all Indian law, supported by a
host of decisions hereafter analyzed, is the principle that those
powers which are lawfully vested in an Indian tribe are not, in
general, delegated powers granted by express acts of Congress, but
rather inherent powers of a limited sovereignty which has never
been extinguished. Each Indian tribe begins its relationship with
the Federal Government as a sovereign power, recognized as such
in treaty and legislation.
Tribes are considered sovereign, completely separate from state and federal governments,
in the sense that tribal sovereign powers derive from the consent of separate peoples whose
governments were established prior to European arrival. Since tribal governments predate the
formation of the state and federal governments and are not derived from, or the provisions of the
49 See Ward Churchill and Winona LaDuke, Native North America: The Political Economy of
Radioactive Colonialism, The State of Native America: Genocide, Colonization, and Resistence
241, 244-55 (M. Annette Jaimes, ed., 1992).
50 Johnson v. Mclntosh, 21 U.S. (8 Wheat.) 543, 547 (1832); Cherokee Nation v. Georgia, 30
U.S. (5 Pet.) 1, 17 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
51 Felix Cohen, Handbook of Federal Indian Law, 122 (1942 ed.).
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federal constitution do not bind dependent upon the federal constitution, tribal governments.52
Today, fully functioning Indian nations embody sovereignty comprised of at least four distinct,
yet interwoven attributes: secure land bases, functioning economies, self-government, and
cultural vitality. Some commentators describe these attributes as geographic and political
separation. The tribes' continued existence and autonomy depends on maintaining all four of
these attributes of sovereignty.
The responsibility of a sovereign is three fold - the ability to govern its own members, a
territorial component and the exclusion of competing sovereigns. One of the most basic powers
of a sovereign people is the power to select their form of government.53 Tribes have chosen to
adopt their form of self-government in accordance with their political and cultural history. Many
tribes have chosen to adopt a government model similar to the United States. Others have
chosen to retain their traditional forms of government. And, on some reservations, there exist
IRA governments and traditional governments, which creates conflict on some issues relating to
governance.
As sovereign governments, Indian nations generally have the inherent civil authority to
maintain law and order by enacting laws governing the conduct of persons, both Indian and non-
Indians, within reservations54; to enforce and administer justice by establishing bodies, such as
tribal law enforcement and courts55; and to regulate the conduct of non-members who enter
consensual relationships with the tribe or its members and whose conduct threatens or directly
affects a significant tribal interest, economic security, or health and general welfare of the tribe.56
These civil powers are exercised by most tribes in the United States, as determined by each tribal
government. Importantly, these inherent rights and powers are retained unless they have been
given up by a tribe pursuant to a treaty, agreement, tribal constitution, or limited by a
congressional act.57 Tribes, however, do not retain inherent criminal jurisdiction over non-
Indians on reservations,58 but do retain jurisdiction over non-member Indians.59
In earlier times, a tribe's inherent authority to exercise jurisdiction throughout its territory
was nearly complete and unchallenged. Today, however, tribal authority over non-Indians
52 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) ("as separate sovereigns pre-
existing the Constitution, tribes have historically been regarded as unconstrained by those
constitutional provisions framed specifically for limitations on federal or state authority.").
53 Id. at 55.
54 United States v. Wheeler, 435 U.S. 313 (1978).
55 Williams v. Lee, 358 U.S. 217 (1959).
56 Montana v. United States, 450 U.S. 544, 565-566 (1981).
57 Menominee Tribe v. United States, 391 U.S. 404 (1968); United States v. Dion, 476 U.S. 734,
739 (1986). This is a fundamental principle of Indian law known as the reserved rights doctrine.
58 Oliphnatv. Suquamish Indian Tribe, 435 U.S. 191 (1978).
59 Duro v. Reina, 495 U.S. 676 (1990); See also United States v. Lara, 541 U.S. , 124 S.Ct.
1628 (2004). The United States Supreme Court in Lara specifically recognized the continuing
viability of the inherent sovereignty of Tribal governments. The Court held that the inherent
authority of tribes has never been extinguished and that it was only limited when executed in a
manner inconsistent with federal law and policy.
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within its territory is more complex. Accordingly, despite being in the era of tribal self-
determination, the Supreme Court decisions on the exercise of tribal authority over their territory
have been moving in the opposite direction. By finding that tribal sovereignty over non-Indians
in tribal communities is inconsistent with tribes' "dependent status," these decisions are
reshaping and diminishing tribal rights and undermining federal Indian policy. The trend of the
Supreme Court towards promoting the notion that tribes do not have the inherent authority to
regulate non-Indian activities impacting the political integrity and general welfare of the tribes
raises serious concerns about the future erosion of tribal sovereignty in the context of
environmental regulation. It is difficult to overstate the change in the law that has occurred
regarding tribal jurisdiction over non-Indians during the past 25 years by the Supreme Court.
EPA must be ever mindful of these changes in the law and the treatment of non-Indians who
reside within tribal territories.61
The new restrictions on tribal power represent a judicial trend only; they have not been
paralleled by any changes in the congressional and executive policies concerning Indian affairs.
Certainly, if the tribal exercise of environmental authority are delegated under federal law, rather
than based on inherent tribal authority, tribes may have a stronger argument to exert such
authority. Implementing an authorized federal environmental program, for example, includes the
capacity to comprehend and respond to concerns, needs and priorities of tribal members and non-
members living on the reservation. Providing an opportunity for public participation can
strengthen tribal government and sovereignty, and alter in a positive way the tribes' relations
with the rest of the community and off-reservation communities. With the support of the
community, and recognition of the tribal environmental programs, a tribe can more effectively
exercise its sovereign authority, and expect less interference in its internal affairs. In turn, the
tribe is better able to protect and preserve its homeland.
In addition to a tribe's inherent sovereign authority, a tribal nation may assume regulatory
authority under delegation of federal powers. Where Congress delegates its federal authority to
tribes, it is to governments possessing independent powers, particularly over internal and social
affairs. For tribal governments, these sovereign powers are critical to ensuring that a
reservation's pollution sources are regulated and managed properly, to preserve the tribal
homelands reserved under treaties. The quality of the reservation environment relates directly to
the economic security and health and welfare of a tribal community.
60 See David H. Getches, Beyond Indian Law: The Rehnquist Court's Pursuit of States' Rights,
Color-Blind Justice and Mainstream Values, 86 MINN.L.REV. 267 (2001).
61 In Nevada v. Hicks, 533 U.S. 353 (2001), the Supreme Court held that tribes have no power to
regulate the activities of state law enforcement officers executing a search warrant against an
Indian on tribal land within a reservation. The expansive rationale of Hicks represents an
astonishing diminution in the control that tribes may exercise over their own reservation.
Additionally, in Atkinson Trading Post Company v. Shirley, 532 U.S. 645 (2001), the Supreme
Court held that the Navajo Nation lacked authority to impose a hotel occupancy tax on a hotel
owned by a non-Indian.
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In 1984, the EPA adopted a "Policy for the Administration of Environmental Programs
on Indian Reservations,"62 in which it recognized tribal governments as the appropriate non-
federal parties for "setting standards, making environmental policy decisions and managing
programs on reservations, consistent with Agency standards and regulations."63 On July 11,
2001, the EPA Administrator affirmed the Bush Administration's adoption of the "EPA Policy
for the Administration of Environmental Programs on Indian Reservations." This Policy affirms
the long-standing federal principles of Indian self-determination and the government-to-
government relationship between tribes and the federal government and applies them to the area
of environmental regulatory programming. The principles of EPA's Policy treat Indian
reservations as coherent units, within which tribal governments are recognized as the appropriate
entities to set and enforce environmental standards on reservations to protect human health and
the environment.
Additionally, Congress has expressly authorized EPA to treat tribal governments in the
same manner as states, giving tribes a major role in the administration of federal environmental
programs and eligibility for grants and contracts. Congress has amended many of the federal
environmental laws consistent with the 1984 EPA Indian Policy to include provisions in the
Clean Air Act64; the Clean Water Act65; the Safe Drinking Water Act66: and the Comprehensive
Environmental Response, Compensation and Liability Act (Superfund Act), to recognize tribes
as controlling governments, to receive grants for pollution control, and to set standards and
enforce certain standards. Consistent with EPA's Indian Policy, Congress also views the
political boundaries of the reservation as delineating the appropriate regulatory area for
management of environmental programs. The Federal Insecticide Fungicide and Rodenticide
Act (FIFRA) expressly permits EPA to enter into cooperative agreements with tribes to enforce
pesticide use violations and to train and certify pesticides applicators, but does not expressly
contain a treatment as state section. The Resource Conservation and Recovery Act (RCRA) is
the only federal environmental law that does not allow tribes to be authorized to run the federal
program, as determined in a federal court case.
These changes in the federal law present tribal governments with an opportunity and
challenge to establish environmental programs that protect public health and the environment,
and provide for sustainable economic development. Tribes are seeking to preserve the quality of
their reservation environments for present and future generations of tribal members and to
protect and restore the natural environments that sustain tribal cultures. Many tribes have made
substantial progress and are building effective environmental protection regulatory programs.
62 Supra note 40.
63 Id. See also EPA's accompanying legal analysis to its 1991 Policy Statement, Regulatory
Jurisdiction of Indian Tribes, 56 Fed. Reg. 64876 (Dec. 12, 1991).
64 42 U.S.C. §§7401-7642.
65 33 U.S.C. §§ 1251-1377.
66 42 U.S.C. § 300(f)(j).
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APPENDIX C: Providing for Meaningful Involvement and Fair Treatment
Providing for Meaningful Involvement and Fair Treatment
I. Purposes for Providing Meaningful Involvement and Fair Treatments
At the time a tribe assumes authorization to develop and implement a federal
environmental program, the tribal environmental program should simultaneously work to
develop processes to provide for meaningful involvement and fair treatment. Many tribal
programs have assumed these obligations and have promulgated rules, regulations, and policies;
established standards; issued or denied permits for proposed activities with full public
participation and due process; and have taken compliance and enforcement actions against
violators of environmental laws. In addition to federal law requirements for public participation
and due process, there are sound policy reasons that support these principles. In this Appendix,
the IPS presents three related reasons or perspectives to support the development of public
participation and due process procedures, including (1) promoting good governance; (2)
respecting interests of community members; and (3) protecting and promoting tribal sovereignty.
The IPS provides these perspectives to EPA to help articulate to tribal governments the
importance of, and legal requirements for, providing meaningful involvement and fair treatment
when developing and implementing federal environmental programs.
A. Providing Good Governance
Governments have a broad set of responsibilities including protecting the health and
safety of its citizens or members, improving the community's quality of life through education,
planning, property protection, and securing a viable economic future. With this wide range of
responsibilities, governments are frequently tasked with balancing competing interests.
Governments often mediate conflicts between those who are concerned with protecting the
environment and those seeking to ensure long-term economic stability, or between individual
interests and the interest of the greater community. To be credible, government officials must
demonstrate transparency in their decision-making.
The fundamental exercise of sovereignty by a government includes not only power, but
also the responsibility to establish a governmental infrastructure and institutions that provide for
sound decision-making. It also requires the implementation of the laws and regulations in a
manner that recognizes the interests of its citizenry, and in the case of tribal governments, tribal
members and non-members residing on the reservation. Good governance informs the
community, educates its citizens, builds public trust, and seeks to improve both the citizens' and
community's quality of life. Responsive government also includes the capacity to comprehend
and respond to the individual community member's needs and priorities and to mediate conflicts
within the community through an established process.
Providing opportunities for public participation can strengthen tribal government and
sovereignty and improve the tribes' relations with the rest of the community and off-reservation
communities. Support from the community, by recognizing the legitimacy of tribal institutions,
increases a tribe's ability to exercise its sovereignty and authority and will likely result in less
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interference from external parties. In turn, a tribe is better able to protect and preserve its
resources, land base and homeland.
B. Respecting the Interests of Community Members
Tribal environmental program decisions affect the entire social, cultural and spiritual
beliefs as well as the political fabric of a community because such decisions impact the
communal rights to live on, use, harvest, conserve, and transfer lands within the reservation, and
the land, itself, as community. Accordingly, tribal members have a legitimate stake in the
decisions affecting the environment and land base in which they hold a communal interest.
Indeed, on many reservations, individual tribal members own a majority of the land base as a
result of the allotment era. Moreover, communal ownership and kinship places certain duties
and responsibilities on some tribal members with respect to the land and resources, and to all the
living beings of the environment. Tribal leaders, in addressing the myriad of important issues
pertaining to running a government, must also be cognizant of the traditional tribal values of
respect, reciprocity, humility and connectedness as these relate to land and tribal members.
Often, certain individuals and traditional and religious tribal leaders advocate the importance of
cultural integrities to preserve the beauty and stability of the community, to protect the health
and welfare of the residents, and to plan for future generations. These voices, comments, and
opinions serve an important role in the tribal institutional setting.
Tribal leadership often calls upon federal agencies to recognize tribal interests and to
consult with them on federal decisions based upon the trust obligations owed to tribes.
Similarly, tribal members request their tribal leadership to recognize, as many tribal leaders do,
the responsibilities they have to the membership, such as informing the membership of proposed
tribal government actions and enabling the membership to voice an opinion in support or in
opposition to governmental decision-making impacting their rights, natural resources, welfare,
and lives. Community interests do not always expect to get all they want, but they do expect to
be heard, to be taken seriously, and to be informed of government decisions and processes
Given the history of neglect by the federal government in protecting tribal land bases,
waters, soils, air, and placing the health of tribal members at risk for cancers, birth defects,
higher rates of respiratory problems and immune deficiency diseases, tribal community members
are keenly aware of the long-term consequences of uninformed decision-making and over-
exploiting resources. Indeed, the impetus for establishing a tribal environmental program is to
clean up contamination, confront ecological degradation, and seek to improve the overall quality
of life for tribal community members.
Tribal decision-making seeks to reflect the history, experience, culture and wishes of the
unique people and community it serves. Tribal members share common culture, customs,
traditions, kinships and history with the tribal leadership that is elected or appointed as part of
the established tribal government. Traditionally, tribal decisions were not taken lightly in Indian
societies, but were carefully deliberated. As part of this deliberative process, tribal institutions
should seek out comments and opinions of elders, cultural committees, individuals impacted, and
the community as a whole.
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Importantly, the federal policies of assimilation and allotment have been abandoned, but
their legacy remains. One feature of this legacy, on many reservations, is a large population of
non-member landowners, who are either members of other tribes or non-tribal. Also, non-
tribally-owned businesses and industry have been doing business on some reservation for many
years, prior to tribes establishing environmental programs. Tribal governments face the
challenge of how to accommodate the interests and rights of non-members, while still exercising
tribal self-government.
Certainly, tribal governments are the ultimate decision-makers on these issues and it is
not the intent of the IPS to advocate for the wholesale reflection of a set of European principles
in a tribal context. In short, the IPS acknowledges the tension between borrowing familiar
principles of United States constitutional law and permitting Indian people the freedom and
dignity to govern themselves according to their own vision. Tribal Councilmember of the Pueblo
of Laguna, Frank Cerno, shared the following:
[TJhere is vision that all tribes share that is one of continuing on
for generations to come, with the idea in mind that we have
survived for all these years, under some very adverse
circumstances, and that we will continue to survive, but only if we
dream things that can definitely become reality.
* * *
Vision is the ability to dream things that never were and bring
them to reality; the ability to clearly set out goals and objectives
that will produce the framework for accomplishing that vision; and
the ability to bring the necessary resources to bear on the further
development of that dream.
Vision is foresightedness; the ability to bring together diverse
thoughts on diverse issues culminating in a plan of action,
recognizing the past, building upon the present, for the purpose of
securing the future.
It isn't that what we as tribal leaders, in tribal government, are all
about, making sure that we can 'secure the future' for our younger
generations to come.1
C. Protecting and Promoting Tribal Sovereignty
Tribal sovereign autonomy and self-government, a principled foundation for Indian law,
has weathered over 150 years of U.S. jurisprudence,2 and indeed, insulating tribes against the
passage of time is a consistent theme in the law. Tribal separatism remains both a focal point for
1 Pueblo of Laguna Comments on Preliminary Draft on the Meaningful Involvement and Fair
Treatment by Tribal Environmental Regulatory Programs 4, April 2, 2004.
2 Charles F. Wilkinson, American Indians, Time and the Law 122 (1986).
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modern Indian policy3 and for tribes themselves. A priority implicit in tribal separatism is
maintaining a homeland in which both present and future generations of the tribe may live. A
viable tribal land base is the linchpin to other attributes of sovereignty. The tribal territory forms
the geographical limits of the tribe's jurisdiction, supports a residing population, is the basis of
the tribal economy, and provides an irreplaceable place for cultural traditions often premised on
the sacredness of land. Through control over Indian lands and resources, Indian nations maintain
a degree of economic self-sufficiency necessary to Indian self-determination. Justice Black once
observed the attachment that tribal people have to their established homelands as follows:
It may be hard for us to understand why these Indians cling so
tenaciously to their lands and traditional way of life. The record
does not leave the impression that the lands of their reservation are
the most fertile, the landscape the most beautiful or their homes the
most splendid specimens of architecture. But this is their home -
their ancestral home. There, they, their children, and their
forebears were born. They, too, have their memories and their
loves. Some things are worth more than money and the costs of a
new enterprise.4
Land will always occupy an important place in Indian cultures. Accordingly, tribes have a vital
stake in resource and environmental management to preserve their homelands and their
sovereignty.
Similarly, tribes should be aware of public perceptions about the role of tribal
government in providing fundamental fairness to all residents of the reservation. To many non-
Indians, the reservation remains a foreign place and the governmental structure is a mystery.
Some states voice concerns about law and order and the efficiency of government. There are
also questions about the ability of tribal governments to guarantee due process and fairness.
Many of these criticisms are based upon a lack of knowledge and understanding of the structures
of tribal governments, anecdotal evidence, unwillingness to recognize tribal institutions, and
outright prejudice. Whether they are unfounded or not, the public and community perception of
tribal institutions and their environmental programs should be recognized by tribal governments,
and tribes should work to address these misconceptions.
Some of these same concerns were leveled at tribal courts in a 1978 report, developed by
the National American Indian Court Judges Association that assessed the strengths and
weaknesses of tribal courts.5 The Judges Association describes serious problems with political
interference, inadequate tribal laws, and a tendency toward summary judgment when defense
counsel was absent. However, the Association also found many strengths in the tribal court
3 See, Indian Self-Determination and Education Act, 25 U.S.C. §§ 450a - 450m (1984);
Wilkinson, supra note 2 at 122.
4 Federal Power Comm 'n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J.,
dissenting) (footnote omitted).
5 The National American Indian Court of Judges Association, Indian Courts and the Future
(1978).
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system, including quick access to a fair forum, the ability to bridge the gap between law and
Indian culture, a dedicated judiciary, and increased respect from federal courts, agencies and
tribal governments. The recommendations included professional training for judges, enhanced
funding for facilities and equipment, and insulation of tribal courts from political pressures.
Since 1978, Congress has provided substantial appropriations directly to tribal courts to address
their infrastructure building needs, training for staff with federal courts, and law and order code
drafting. This assistance has greatly improved the administration of justice throughout Indian
country. Moreover, some commentators have found that tribal courts are no less protective and
much more accessible than federal courts have been in protecting civil rights on Indian
reservations.6
The improvement of tribal courts over the years, is an example of the effective tribal
institution building that has taken place on many reservations to address criticisms and to ensure
that justice is accessible and afforded to all. Tribal environmental programs can deal with these
similar criticisms by guaranteeing public participation and basic due process in their ordinances,
rulemaking and administrative procedures. Building expertise, resources and community support
can enhance the tribal goals. Tribal education of the public about the tribal process and
institutions is a necessary step.
Institutional support needs to come from both the Indian and non-Indian communities and
the regulated industry. Non-Indian companies who pursue mineral or other natural resource
development affecting the tribal environment are accustomed to deriving some regulatory
certainty from written laws and regulations. The establishment of advisory committees or boards
can also lend support for a fair and meaningful system. Dialogue among the tribes and industry
can foster mutual understanding of the need to define and make known specific environmental
concerns. Importantly, these forms of public involvement enable the tribes to obtain sound input
and receive information that can assist the tribe in its thoughtful deliberations and decision-
making. A structured process can instill a careful weighing of concerns and issues by tribal
program officers, council members, and community members. This approach is similar to
traditional processes. Some tribes have already instituted these types of measures to defray the
disapproval of, and challenges to, tribal authority.
6 See Robert J. McCarthy, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty
Years, 34 IDAHO L.REV. 465 (1998). See also Juliana C. Repp, The Indian Civil Rights Act
Tribal Constitutions and Tribal Courts, 16l Annual University of Washington Law School
Indian Law Symposium, September 2003.
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APPENDIX D: Glossary
Glossary
Allotment: Surveyed reservation land distributed by the government to individual Indians under
the provisions of the Dawes Allotment Act. Generally, 160 acres were allotted to heads of
families; 80 acres to single persons; and 40 acres to other family members.
Bureau of Indian Affairs (BIA): Agency within the U.S. Department of the Interior responsible
for administering the U.S. government's relationships with Indian governments and for
overseeing Congress's trust responsibility for Indian lands and existence.
Consultation: A collaborative process between government peers resulting in a consensus on
how to proceed.
Council: A group elected or appointed as an advisory or legislative body; council members are
usually equal in power and authority.
Culture: The ideas, customs, skills, arts, etc., of a given people in a given period.
Cultural Resources: Places of historic significance, archeological sites and resources, graves and
funery objects; also includes "traditional cultural properties" (see below).
EnvironmentalJustice: Originating from a presidential executive order (#12898) environmental
justice is the fair treatment and meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development, implementation and enforcement of
environmental laws, regulations and policies. Fair treatment also means that no group of people,
including racial, ethnic or socioeconomic group should bear a disproportionate share of the
negative environmental consequences resulting from industrial, municipal and commercial
operations or the execution of federal, state, local and tribal programs and policies.
Environmental Protection Agency (EPA): EPA is a federal agency whose mission is "to protect
human health and to safeguard the natural environment - air, water and land - upon which life
depends. The Administrator of EPA reports directly to the President of the United States.
EPA Policy on Environmental Programs on Indian Reservations: In 1984, EPA was the first
federal agency outside the Department of the Interior to adopt a formal policy statement
regarding Indian Tribes. This policy includes nine principles that guide EPA's relationship with
Indian tribes and implementation of its programs on Indian reservations.
Federally Recognized Tribes: Tribes with whom the federal government maintains an official
relationship, usually established by treaty, congressional legislation, or executive order.
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APPENDIXD: Glossary
Indian Country: In broad terms, Indian country is all the land under the supervision of the U.S.
government that has been set aside primarily for the use of Indians. All land within the limits of
any Indian reservation under the jurisdiction of the U.S. government, notwithstanding the
issuance of any patent, and including rights-of-ways running through the reservation.
Jurisdiction: The legal power a government has to govern its people and territory.
Litigation: Legal contest carried out through the judicial process.
Public Participation: When the public is informed of a federal action, and the federal
government solicits citizen input before making a decision.
Reservation: Lands reserved for tribal use.
Self-Determination. Decision-making control over one's own affairs and the policies that affect
one's life. This is also the name of the federal government's policy toward Indian nations,
beginning in 1978.
Sovereign: Supreme in power or authority.
Sovereignty: The status, dominion, rule or power of a sovereign. Tribes have the power to make
and enforce laws for their tribe and reservation, and to establish courts and other forums for
resolution of disputes. Tribal sovereignty is not absolute, but rather is subject to certain limits
resulting from the subordination of the tribes to the United States.
Tradition: Cultural beliefs and customs handed down from ancestors.
Traditional Cultural Properties (TCP's): Beliefs or practices of a people tied to land or water, in
conjunction with religious beliefs and/or practices.
Treaty: Formal, legally binding contract between two sovereign nations; an agreement between
two or more nations, relating to peace, alliance, trade, etc.
Tribe: A group of individuals bound together by ancestry, kinship, languages, culture, and
political authority.
Trust: Property held by one person for the benefit of another.
Trust Doctrine: This is rooted in the treaties between Indian tribes and the U.S. government
where Indian land was ceded to the government, under treaties, in exchange for protection of the
land and tribal rights. In this doctrine, the U.S. government holds title to Indian land in trust for
the beneficial use of Indian tribes and their members. This includes other protection, including
protection of the Indians' sovereign rights.
Village: Term used to denote a community of Alaskan natives.
MEANINGFUL INVOLVEMENT AND FAIR TREATMENT BY TRIBAL ENVIRONMENTAL REGULATORY PROGRAMS
NEJAC November 2004
D-2
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