Working Effectively with Tribal Governments Training
SEPTEMBER 24-25
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WHO
Jim Sappier
Terry Regan
Jim Sappier
Terry Regan and Bob Goetzl
Sharon Wells
BREAK
Jim Havard
Jim Havard
Jim Havard
Sharon Wells
Terry Regan
LUNCH
Terry Regan (Intro.)
Jim Sappier (Q&A's)
Bob Goetzl
Bob Goetzl
Break
Jim Sappier/Terry Regan
Terry Regan
END DAY ONE
WHAT
Invocation
Participant Intro's
Training Process
Q/As on Training
Definition(s):
What Is An Indian?
What Is A Tribe?
History Of Federal Policies
Treaties Exercise
BREAK
Tribal Sovereignty
Trust (Video&Discussion)
Jurisdiction (Various
Types of Indian Land)
Treatment As State
(TAS)
Morning Wrap-Up
LUNCH
Video - Penobscot: The
People and Their River
Federal/Presidential
Policies
EPA's Overall Mission and
our Indian Program
Responsibilities
Break
Efforts to Strengthen
EPA's Indian Program
(Regionally/Nationally)
Any Questions?
Tomorrow's Intro.
END DAY ONE
WHEN
9:00-9:10
9:10-9:30
9:30-9:45
9:45-10:15
10:15- 10:45
10:45-11:00
11:00-11:15
11:15- 11:45
11:45- 12:55
12:55- 1:00
1:00 - 2:00
2:00 - 2:40
2:40-3:00
3:00-3:20
3:20 - 3:35
3:35-4:15
4:15-4:30
END DAY ONE
" "-Center
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WHO
Moderator: Jim Sappier
Tribal Representative:
Gavle Dana,
Passamaquoddy Tribe,
Pleasant Point (Perry, ME)
Paulla Jennings.
Narragansett Indian Tribe
(Charlestown, IU)
Allen Sockabasin.
Passamaquoddy Tribe,
Indian Township (Princeton,
ME)
LUNCH
Terry Regan
Ellie Kwong
Mike Kenyon
BREAK
Bill Nuzzo
Mark Sceery
Jim Sappier
Bill Nuzzo
END TRAINING
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WHAT
American Indian Culture
Session
Purpose and Introduce
Panel
Cultural Presentations
Interactive Discussion/
Q&A With Panel
LUNCH
Protocol For Working With
Tribal Governments
(Including Experience and
Examples From Panel)
EPA Indian Policy
Exercise and Group
Discussion
Tribal - EPA Agreements
(TEAS)
BREAK
Grants / PPG's
Building Tribal Capacity
Direct Implementation
Reading
Wrap Up & Evaluations
END TRAINING
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PFECTIVEC
GOVERNMEN
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August 1996
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TABLE OF CONTENTS
SUBJECT
INTRODUCTION.
CHAPTER ONE OVERVIEW OF NATIVE AMERICAN
COMMUNITIES AND CULTURES
I. Native Americans and Tribes Generally
A. Examples of Tribal Membership
Criteria
II. Federally-Recognized Tribes and Their Governments
III Non-Federally Recognized and State Recognized
Tribes
IV. Native Hawaiians
V. Native American Population/Communities Outside of
Indian Country
VI. Understanding Native Americans
A. Native Americans are not a
Homogeneous Group
B. Indian Tribes Have Maintained
Significant Government Powers
C . Unique Federal Status of Tribal
Members
D. Native Americans Pay Federal Taxes
E. Tribes Receive Services from the
Federal Government
VII. Understanding Native American Cultures
A. The Impact of Western Expansion
B. Differences Between Native
Americans and Western Styles and
Values
C. Attitudes Towards the Environment
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VIII. Tribal State Relations
IX. Selected National/Regional Indian Organizations
CHAPTER TWO OVERVIEW OF FEDERAL INDIAN LAW AND
POLICY
I. Definitions; and Common Vernacular
A. Indian Country
B. Reservations
C. Allotments
D. Fee Lands
E. Trust Lands
F. Rancheria
G. Dependent Indian Communities
H. Colony
I. Ceded Territory
II. Indian Country: Changing Times and Federal Policies
A. Earliest Treaties ( 1 608- 1830)
B. Removal (1830-1850)
C . Reduction of the
Indian Land Base (1850-1871)
D. Assimilation and
Allotment Era (1887-1 909)
E. Indian Reorganization
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Act of 1934: Support of
Tribal Government (1934)
F. Termination: An Old
Policy With s New
Twist (1950-1970)
G. U.S. Indian Policy (1970 - present)
Since 1970-Self
Determination Act
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III. Indian Country: Selected Legal Doctrines
A. Tribal Sovereignty
B. Federal Trust Responsibility
C. Treaty Rights
D. Criminal and Civil Jurisdiction
E. Tribal Sovereign Immunity Suits
Against Tribes
F. The Alaska Difference
CHAPTER THREE OVERVIEW OF ENVIRONMENTAL
PROTECTION ON INDIAN LANDS
I. U.S. Environmental Protection Agency's
(EPA): Overall Mission and Implementation
II. Federal Policies and Executive Orders
A. Presidential Memorandum on
Govemment-to-Government Relations
with Tribal Governments
B. Executive Order and Memorandum on
Environmental Justice
C. Executive Order on Sacred Sites
III. EPA Policies, Guidance and Memorandum of
Understanding (MOU)
A. EP A' s Policy for the Administration of
Environmental Programs on Indian
Reservations
B. Federal Tribal and State Roles in the
Protection and Regulation of
Reservation Environments (Concept
Paper)
C. Tribal Operations Action
Memorandum
D EPA Environmental Justice Strategy
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E. EPA Region 8 Policy for
Environmental Protection in Indian
Country
F. Memorandum of Understanding
Between the Bureau of Indian Affairs,
the Environmental Protection Agency,
the Department of Housing and Urban
Development and the Indian Health
Service
IV. National Tribal Programs
A. The American Indian Environmental
Office
B. Building Tribal Capability
C. Tribal/EPA Environmental
Agreements
D. Performance Partnership Grants
E. Tribal Assumption of Federal
Environmental Programs
Treatment in the Same Manner as a
State (TAS)
Jurisdictional Issues
F. Direct Federal Implementation
G. Protocol for EPA Interactions with
Tribes
V. National Work Groups and Advisory
Committees
VI. Regional Programs and Operations
VII. Tribal Operations in Other Selected Federal
Departments/Agencies
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INTRODUCTION
This training course is being developed as part of the Environmental Protection Agency's
(EPA) overall effort to work with Tribes to strengthen public health and environmental
protection in Indian Country. On July 15, 1994, Administrator Carol M. Browner issued the
Tribal Operations Action Memorandum which called for implementation of specific actions to
improve EPA's Indian program, including training for EPA staff and managers on Tribal
matters. Administrator Browner stated:
It is important that EPA employees have the necessary sensitivity, knowledge, and
understanding of Indian affairs to facilitate communication between EPA and Tribal
representatives. The American Indian Environmental Office .. . will promote and
coordinate training on Indian issues for Agency managers and staff.
The initial draft of the training materials was developed by Kickingbird Associates with
input from an Agency workgroup led by Caren Rothstein of the American Indian Environmental
Office (AIEO) and contract support provided by the Office of Policy, Planning, and Evaluation.
The general purpose of the training is to assist EPA staff and managers in implementing the EPA
Policy for the Administration of Environmental Programs on Indian Reservations (EPA Indian
Policy). Specifically, the training is intended to provide adequate knowledge about Indian issues
for EPA employees to work effectively with Native American Tribes and Alaska Natives. The
course is designed for delivery by EPA staff who have experience working in EPA's Indian
Program. The target audience is EPA management and staff in Washington, D.C. and the
Regions whose work may either call upon them to work with Tribes or affect Tribal resources
and environmental management programs.
The course will be offered as a pilot during the first year in order to evaluate the
effectiveness of the interim final training materials. The American Indian Environmental Office
(AIEO) intends to revise the training materials after this initial year. During this first year,
comments on the materials should be faxed or mailed to Caren Rothstein, AIEO Training
Coordinator. Fax number: (202) 260-7509. Mail code: AIEO (4104).
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CHAPTER ONE
OVERVIEW OF NATIVE AMERICAN COMMUNITIES AND CULTURES
I. Native Americans and Tribes Generally
Indian Nations hold a unique position in the United States. Throughout the history of the
United States, the relationship between the federal and Tribal governments has been a
"government-to-government" relationship. Tribes are recognized as sovereign entities, capable
of self-government, while holding a dependent status within the federal powers of the United
States.1 As a result, Native Americans hold unique legal rights, not derived from race or
ethnicity, but instead through their membership with, and ancestry from, federally recognized
Tribes.2
Native Americans are comprised of Indians, Native Alaskans, and Native Hawaiians. The
terms Native American, American Indian, and Indigenous Peoples, however, are commonly used
interchangeably to refer to the people, cultures, and communities of the first Americans,
including Alaska Natives and Native Hawaiians. However, in addition to their common use, the
terms Indian and Tribe also have specified legal definitions. The term "Indian" is used
throughout relevant sections of Title 25 of the United States Code, including those located in
sections 461, 462, 463, 464, 465, 466, to 470, 471 to 473, 475, 476 to 478 and 479, and includes
all persons of Indian descent who are members of any recognized Indian tribe now under Federal
jurisdiction and all persons who are descendants of such members who were, on June 1, 1934,
residing within the present boundaries of any Indian reservation, and includes all other persons
of one-half or more Indian blood. For the purposes of said sections, Eskimos and other
aboriginal peoples of Alaska are also considered Indians. The term "tribe" refers to any Indian
tribe, organized band, pueblos, or the Indians residing on one reservation.
From the statutory definition, one can see that much of the definition relies on how
individual Tribes define membership. As part of their sovereign powers, Tribes have the power
to determine their own members. Most Tribes have a percentage blood quantum that they
require for individuals to be enrolled as Tribal members. The percentage of blood ranges from
1/32 (Citizen Band Potawatomie) to the more typical 1/4 degree blood. Some Tribes however,
use descendance, instead of blood quantum, as the criteria for membership. Generally this
requirement is met by individuals who can show direct descendence from a family member who
was listed on a specified previous membership role.
Strickland, [Draft] "Native American Law," Oxford Companion to the United States Supreme Court, 1, see
also, Worcester v Oenrgia, 1 \ U.S.. (6 Pet.) 515 (1832); Cherokee Nation v Georgia, 30 IIS (5 Pet) 1; Johnson v
Mjnlosh, 211 U.S. (8 Wheat.) 543 (1823).
2Strickland, see note 1.
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Examples of Tribal Membership Criteria
Membership in the Jicarilla Apache Tribe shall extend to: a) all persons of Indian blood
whose names appear on the official per capita-dividend roll of the Jicarilla Apache Tribe
on December 15, 1968; b) all persons of three-eighths or more Jicarilla Apache Indian
blood born from and after December 15, 1968 whose mother or father is a member of the
Jicarilla Apache Tribe.3
Article II, Section 1 of the 1969 Prior Lake Sioux Constitution defines the "members" of
the Community as (1) those members whose names appeared on the 1969 census roll of
residents of the Mdewakanton Sioux Prior Lake Reservation; (2) all children of at least
one-fourth (1/4) degree Mdewakanton Sioux Indian blood bora to an enrolled member of
the Community; and (3) all descendants of at least one-fourth (1/4) degree Mdewakanton
Sioux Indian blood who can trace their blood relationship to Mdewakanton Sioux Indians
who resided in Minnesota on May 20, 1886, Provided they are found qualified by the
Community's governing body and are not enrolled as members in another tribe or band of
Indians.
II. Federally-Recognized Tribes and Their Governments
Throughout history, Indian nations have been recognized as sovereign governments.
When the Europeans came to America, there were hundreds of organized Tribes, bands and
groups with functioning social, political and cultural institutions in what is now the continental
United States. Like the many separate countries of Europe, these Tribes, although sharing the
same continent, had different languages, customs, traditions, and forms of government. These
native governments recognized their mutual sovereignty by negotiating treaties and forming
confederacies and military alliances with each other. It is, therefore, no wonder that the
European nations of Spain, France, England, and Holland likewise entered into treaties with
various Tribes. And when the United States of America was formed, it, too, entered into treaties
with the various Tribes.
Today, there exist over 550 Federally-recognized Tribes. These Tribes have retained
many of their sovereign governmental powers. Perhaps the best summary of Tribal powers may
be found in the Handbook of Federal Indian Law where it states that Native American
governmental power relies upon three main principles:
1. [A]n Indian tribe possesses, in the first instance, all the powers of any sovereign state.
2. [CJonquest renders the tribe subject to the legislative power of the United States and,
in substance terminates the external powers of sovereignty of the tribe, for example, its
'Article III, Section I, Revised Constitution of the Jicarilla Apache Tribe
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power to enter into treaties with foreign nations, but does not by itself affect the internal
sovereignty of the tribe.
3. [TJhese powers are subject to qualification by treaties and by express legislation of
Congress. Save as expressly qualified, full powers of internal sovereignty are vested in
Indian tribes and in their duly constituted organs of government.4
According to the Handbook, the considerations which, singly or jointly, have been
particularly relied upon in reaching the conclusion that a group constitutes a "tribe" or "band"
have been:
1. That the group has had treaty relations with the United States.
2. That the group has been denominated a tribe by act of Congress or Executive Order.
3. That the group has been treated as having collective rights in Tribal lands or funds,
even though not expressly designated a tribe.
4. That the group has been treated as a tribe or band by other Indian tribes.
5. That the group has exercised political authority over its members, through a Tribal
council or other governmental forms.
Other factors considered, though not conclusive, are the existence of special appropriation items
for the group and the social solidarity of the group.5
Alaska Natives
The approximately 226 Alaska Native Tribal governments recognized by the Bureau of
Indian Affairs have the same political status with the Federal government as the continental
Tribes. They also have social and political organizations fairly similar to those of the Tribes of
the lower 48. They are sovereign entities with all the attendant inherent powers and, they
receive a variety of federal services.
One historic difference between Alaska Natives and Tribes of the lower 48 is that the
reservation system was used far less in Alaska. The sovereign Alaska Native Tribal
governments include those organized under the Indian Reorganization Act of 1934, and those
that have remained traditional, typically having been recognized by the federal government.
4Cohen, Handbook of Federal Indian Law 241-42 (1982).
sCohen, Handbook of Federal Indian Law 271 (1988).
4
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In 1971, Congress passed legislation extinguishing the aboriginal title held by the Alaska
Natives collectively and provided compensation for it through the Alaska Native Claims
Settlement Act. This Act did not diminish their political relationship with the federal
government. Since the passage of the Act, however, some people confuse the sovereign Tribal
governments with the regional and native village corporations established under the Act. This
confusion results from the difficulty of keeping politics separate from economics. The
Settlement Act extinguished the aboriginal title, but did not eliminate the sovereign status of the
original Tribal governments. The Act reserved fee title to 44 million acres of land for
management by the regional and village corporations and paid $962,550,000 to the same
corporations in compensation for the rest of the lands that were taken by the United States and
the State of Alaska.
Twelve regional State-chartered corporations received subsurface rights to land held by
the more numerous native village State-chartered corporations. The Alaska Natives are the
shareholders in both types of corporations. Although natives are included in Tribal
governments, councils, and village and regional corporations, only the first two are capable of
exercising residual sovereign powers.
A. A Variety of Self-Governance
Although, in some cases, the modern Tribal governmental systems differ from the
traditional governmental initiations and forms; the rich cultural heritage of Indian Nations,
which includes a governmental tradition, have left their imprint on the present day workings of
Tribal government. Demonstrating a wide degree of diversity, most Tribal governments
combine traditional features with western forms.
Tribal governments are like national governments in that they are sovereign, they assert
jurisdiction over their people and land, they own land, and have at the heart of their mission,
meeting the needs of their people. Tribal governments are also like State and local governments
in that they administer many federal programs. Tribal governments can also be said to operate
like a business in that they manage resources, products, and services for profit.
The traditional way in which Tribal government has been viewed is as a public body with
responsibility and obligations to Tribal members, with concern for their economic and social
well-being. In another sense, however, the Tribal government may be considered a "quasi-
corporation." According to this view, the Tribal councils are responsible for the investment of
Tribal resources, for managing those resources for the betterment of Tribal members, and for
ensuring that long-term obligations to Tribal members can be fulfilled.
B.
Constitutions and the Source of Tribal Powers
Like many other nations, many Tribal governments operate under constitutions which
generally define the source and nature of the government's sovereignty, and the form and
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structure of the government. In addition, they spell out the specific sovereign powers that the
government may exercise.
Constitutions may be written or unwritten. The Santo Domingo Pueblo government, for
example, has been operating under the same unwritten constitution for centuries. On the other
hand, the Lummi Indians of Washington adopted a new written constitution in 1970. Some
Indian Nations have adopted written constitutions that primarily describe their traditional forms
of government. Such are the constitutions of the Seneca of New York or the Muscogee (Creek)
or Choctaw of Oklahoma. Other Indian Nations have written constitutions, which describe
essentially western forms of government. Many of the Indian Tribes that adopted such
constitutions did so in response to external pressures to develop more Western-style
governments in order to secure governmental recognition and needed financial assistance. Often
this was done under the guidance and pressure of the United States Government. Most of these
constitutions are a byproduct of the Indian Reorganization Act of 1934.
C. Forms and Structure of Tribal Governments
Consistent with their traditional pasts, many contemporary Indian Nations have
democratic governments which have combined aspects of their traditional styles and institutions
with common western forms. Some, like the Pueblos of New Mexico maintain theocratic forms
of Government. Others, like the Gila River Indian Community resemble most closely
parliamentary systems in which the legislative and executive functions are interrelated. Still
others like the Navajos and some of the Five Civilized Tribes have a governmental organization
which operates through a system of separate Tribal councils, Tribal executives, and Tribal
courts.
The structures of Tribal governments have developed in response to the same kinds of
factors that affect the development of any government. Population size, land base, and
economic and political considerations all have had a great impact on the structure and operation
of contemporary Indian governments. For example, an Indian Nation with a relatively small
population, such as the Kiowa of Oklahoma and the Crow of Montana, may have a Tribal
council comprised of all members of the Tribe. Those with vast land areas like the Navajos,
Gila River Pima-Maricopa and the T'Ohono O'Odham (formerly Papago) may have well-
developed local district governments as well as strong central governments.
It is not uncommon to hear modern Tribal governments being referred to as "traditional"
or "non-traditional" or "progressive." It is difficult to make simple generalizations about the
differences between these in a contemporary setting. Basically, however, traditional Tribal
governments are those where the political leaders are selected by clans, family trees, or religious
laws. These leaders, who in some Tribes serve for life, are usually chosen by consensus rather
than through elections. Non-traditional governments, on the other hand, generally choose their
political leaders through democratic elections.
While few strictly traditional Tribal governments exist today, many so-called non-
traditional governments have maintained an informal network of traditional leaders. These
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traditional leaders in many cases still exert a great deal of influence on both the social and
political affairs of an Indian Nation.
D. Tribal Statistics
The federal government recognizes 561 Indian Tribes, including Alaska Native Tribes.6
These federally-recognized Tribes constitute an American Indian and Alaska Native population
of over 1 million and a land base of over to 54 million acres.7 In addition to the population
specifically identified with an individual Tribe, over another 1 million Native Americans live
outside of Indian Country. Also, approximately 150,000 Native Hawaiians live in Hawaii. The
map on the next page shows the location of the federally-recognized Indian Tribes, including
Alaskan Natives.
m. Non-Federally Recognized and State Recognized Tribes
It is estimated that hundreds of non-recognized Tribes and State-recognized Tribes also
exist. Many of these tribes never had a formal relationship with the United States government.
Others, however, once had such a relationship, but the United States government has since
terminated that relationship and not re-recognized those tribes.
A unique aspect of the federal Indian trust relationship is the power of the trustee,
Congress, to unilaterally modify its responsibility toward the beneficiary, the Native Americans.
After World War II, a desire to assimilate Native Americans into the mainstream of the
American population gained support in Congress and numerous bills were passed "terminating"
Tribes from the protection of the United States. Termination was viewed as "freeing" the
Native Americans from their dependent status and opening the reservation doors to prosperity.
In reality, however, the by-products of this "freedom" were disastrous to the Tribes Their land,
no longer having trust status and attendant protections, was often broken up and sold and federal
services ended. The federal government has repudiated the termination policy by resuming trust
relationships with some Tribes and by passing the Indian Self-Determination and Education
Assistance Act of 1975.
In most instances, non-recognized Tribes are ineligible for Federal aid designated for
Indian tribes. Non-recognized tribes, however, may be eligible for other sources of federal
funding, such as EPA environmental justice grants.
6 EPA American Indian Environmental Office data used for calculating the funding formula for the General
Assistance Program Grants.
7 See footnote 6.
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State-Recognized Tribes
A number of States, such as Virginia, have formally recognized Indian Tribes who reside
within the boundaries of the State. While this recognition does not convey any legal rights under
federal Indian law, it often acknowledges unique legal rights retained by or conveyed to the
Tribe(s) within State law. Often these Tribes have retained and/or obtained a land base set aside
under State law for the Tribe's use and occupancy. These State-recognized Indian reserves are
similar under State law to federal Indian reservations that have been reserved for federally-
recognized Tribes under federal Indian law.
A number of these Tribes, .as with other non-federally recognized Tribes, have been
trying to gain federal recognition either through the Bureau of Indian Affairs recognition process
or Congressional legislation. In the past several years, the federal government has been trying to
reach out to non-federally recognized Tribes and in 1994 the White House met with a number of
Tribal leaders from State-recognized Tribes and urban Indian communities.
IV. Native Hawaiians
The federal government does not recognize a "government-to-government" relationship
with the Native Hawaiians, and thus, Native Hawaiians are not recognized as being members of
a sovereign Tribal government. Native Hawaiians were first acknowledged as "Native
Americans" in the Native American Programs Act of 1974 which defined them as "any
individual any of whose ancestors were natives of the area which consists of the Hawaiian
Islands prior to 1778." The approximately 150,000 Native Hawaiians have maintained a distinct
long-standing cultural identity.
Subsequent to the 1974 Act, a private, non-profit corporation for Native Hawaiians was
created in Hawaii to further native economic and social self-sufficiency. Funding through the
Native American Programs Act goes toward education, economic development, health and
native rights concerns. The Native Hawaiian Legal Corporation (NHLC) has also received
Federal grants to study the legal feasibility of a trust relationship with the Federal government.
Areas such as the formal "recognition" of Hawaiian people as Native Americans, reparations for
uncompensated taking of land and acquisition of surplus Federal lands are some of the group's
priorities. Because the Hawaiian government had treaties with the United States prior to the
overthrow of the Hawaiian monarchy and annexation in the 1890's, NHLC feels that Native
Hawaiians are also the rightful beneficiaries of the trust responsibility.
V. Native American Population/Communities Outside of Indian Country
Many members of non-recognized and terminated Tribes fall into this group. Some
Native Americans live in urban and rural off-reservation areas as a direct and indirect result of
other federal policies. A significant percentage of the United States Native American population
lives outside of Indian country. Although a few recent federal programs serve as out-reach to
Indian populations away from Indian country, their political status is not that distinguishable
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from other American citizens. While the EPA encourages Tribal governments to assume
primacy for the implementation of federal environmental programs for Indian country,
environmental protection for Native American populations living outside of Indian country is
generally provided for by EPA or State programs
VI. Understanding Native Americans
A. Native Americans are not a Homogeneous Group
It is a common notion among those unfamiliar with American Indian Nations and people
to think of Indians as a single group of people operating under a single government and sharing
languages, customs, and religion. This could not be further from the truth Today over 550
federally recognized Tribal governments are meeting the needs of their people through systems
which generally combine traditional Tribal forms with standard American forms of government.
While there are certainly regional and even nation-wide similarities among Indian governmental
forms, it is a wise idea to take a cue from the names many Indian Nations give themselves, many
of which can be translated into English as meaning, "the people" or "the principal people."~and
to consider each Tribal government as a distinct sovereign entity exercising sovereign powers to
meet the present and future needs of its people. There are still at least 150 extant native
languages spoken in Tribal communities. Tribes can be distinguished from each other by virtue
of land holdings, as well. Land bases of Tribes range from 15,662,413 acres of the Navajo to
the one acre Nooksak reservation. Also, each Tribe's political and economic history is unique.
B. Indian Tribes Have Maintained Significant Governmental Powers
Modern Tribal governmental systems are powerful, complex, and detailed. A concise
summary of Tribal powers was stated by the United States Supreme Court recently as that which
"[is] needed to control [the Tribes'] own internal relations, and [to] preserve their unique
customs and social order."8 Tribal governments, quite simply, govern the internal affairs of the
Tribe. Tribal governments make laws, adjudicate, and enforce. Most offer a vast array of social
services, including Indian child welfare and Indian family counseling programs. The
governmental system may run and manage Tribal police forces, food distribution programs,
Indian school systems, and housing services. Tribal court systems are equally powerful, having
the power to affect freedom, child custody, torts, contracts, property rights, and marriage.9
James M. Jannetta notes in "Reciprocity Between State and Tribal Legal Systems," that
Tribes today exercise extensive governmental authority over their reservations, including
considerable civil authority over non-Indians. Tribal courts form a nationwide web of
v Reina 110 U.S. 2053, 2055 (1990). See also, United Stales v Wheeler, 435 U.S. 313 (1978).
9Shannon, Tribal Court Advocacy, 1988 Michigan Bar J. 377, 381.
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courts with jurisdiction over more than half a million persons, and the many millions
more that pass through reservations annually.10
C. Unique Federal Status of Tribal Members
Native American Tribes hold a unique position in the United States. Throughout the
history of the United States, the relationship between the United States and Native American
Tribes has been a "government-to-goverament" relationship. The Tribes are recognized as
sovereign entities, capable of self-government, while holding a dependent status within the
federal powers of the United States.11 As a result, American Indians hold legal rights, not
derived from race or ethnicity, but instead through their membership with, and ancestry from,
federally recognized Tribes.12
D. Native Americans Pay Federal Taxes
In ordinary affairs, as a U.S. citizen, Indians pay taxes. As we have seen from looking at
the treaties, when Tribes reserved lands and property, the U.S. often promised that they would
not have to pay taxes on revenue generated from land held in trust. This is generally true today,
which means that, in certain circumstances, Tribes and individual Indians do not pay income
taxes to the federal government on sale of land, resources, livestock and agricultural products
generated from trust land. However, if they work for Tribal government, or off the reservation,
in most instances, they pay taxes like anyone else to both the federal government and the States.
It is important to note, that as sovereign governments, Tribes have the power to tax, and
as a result, just like federal, State and local governments, many Tribes levy taxes on sales of
goods and services. They often use this revenue to support the operation of government and
meet the needs of their own communities rather than relying on other jurisdictions.
E.
Tribes Receive Services from the Federal Government
Services are part of a histori cal and political relationship between the federal government
and Tribes. Services are meant to preserve and enhance the health and welfare of the Tribe.
Among other things, Indians gave up nearly 2 billion acres of land and immeasurable natural
resources. The money or "per capita" payments you may hear about frequently refers to interest
paid on trust funds managed by the Department of the Interior. At other times, it refers to claims
payments from the U.S. government serving as compensation for the unfair prices paid to
Indians for devalued land and resources in the past.
10Jannetta, Reciprocity Renveen S,tate an4 T"hal I egal Systems, Michigan Bar Journal, 400,401, May 1992.
"Strickland, [Draft}"Native American I.jg," Oxford Companion To The United States Supreme Court, 1.
12See footnote 12.
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VH. Understanding Native American Cultures
A sensitivity to the importance and uniqueness of each Tribe's culture is critical for those
working with Tribes to develop and implement environmental protection programs in Indian
country. Several points are critical to consider while attempting to gain an understanding of
Tribal culture.
1. Although there may be common themes between various Tribes' cultures, generally
each Tribe has a unique set of cultural beliefs and values.
2. Non-Indians working with Tribes generally will learn Tribal culture more effectively
from the Tribes themselves.
3. Understanding Tribal culture requires patience and sensitivity.
4. Sensitivity and respect for Tribal culture is critical for effective working relationships
that can lead to strong environmental protection programs.
A. The Impact of Western Expansion
Much has changed in the manner and form of Tribal government operation since the
arrival of western European institutions on the American continent. Some of the change has
been evolutionary, produced by the Tribes themselves; the greater change, however, was the
result of direct and indirect actions by the United States government. At their present level of
development, few Tribal institutions correspond to traditional forms or styles. What forms of
government Indian Tribes would have developed to meet the demands of the changing centuries
without the persuasive presence of the federal government is not known, and can only be
speculated upon.
In the first several years of contact Tribes were for the most part able to retain their
traditional governing forms. These were highly diversified, ranging from the sophisticated
confederacy of the Iroquois, a precursor of the United States federal system, to informal systems
of communal consensus. To characterize all Tribal governments by any single generalization is
factually misleading. Several general observations about Indian systems of governments, in
contrast to western systems, however, are pertinent.
Indian Tribes and societies generally did not consider private property as central to a
government's relationship to citizens, as did most western governments. Communal property
concepts are far more prevalent in Tribal societies than are individual property concepts. Rather
than the representative styles typical of western governments, Tribal societies were often
governed by communal systems of chiefs and elders. Leadership was often earned by
performance or acknowledgment and rested upon consensus and theological grounds for
exercise. Many different systems existed for resolving disputes and maintaining order. Some
Tribes had warrior societies which functioned as enforcement mechanisms; other Tribes utilized
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community pressure to enforce norms. Scorn is said to have been an extremely effective method
of enforcement. Imprisonment was unknown, and restitution, banishment, and death were the
major punishments.
The turn of the century saw a great decline of the traditional Tribal governments.
Removal, continuous war, and the reservation era significantly affected many Tribes.
Traditional food supplies were greatly diminished. Tribes were placed at the mercy of the
United States government. This was particularly true for the Plains and nomadic Tribes whose
traditional way of life was drastically altered, who were most directly affected by the great
influx of non-Indian settlers and the Indian wars, and who were often most subjected to
regulations. It was probably less true of the non-nomadic Tribes who remained in their
traditional grounds and continued to survive through the same enterprise and the same cultural
setting which had always sustained them.
B. Differences between Native American and Western Styles and Values
Panel discussion (Trainees are strongly encouraged to take notes). Please see handout.
C. Attitudes Towards the Environment
It is difficult to generalize about environmental attitudes of the various Tribal
governments. Larry Merculieff, City Manager of the City of St. Paul, St. Paul Island, Alaska,
however, made some interesting observations at a 1994 symposium on the topic of "establishing
Rapport Between Indigenous Coastal Cultures and the Western Scientific Community."
Although these observations deal with Alaskan cultures, the thoughts may be relevant to dealing
with many other Native people
" I don't want to belabor a point, nor do I wish to convey the impression that indigenous
knowledge is better than science...however, I'd like to make three salient points on this
issue. One, until institutions and professions in the industrialized societies make it safe
and acceptable to recognize indigenous knowledge and experience, we will never create a
functional bridge between these different worlds and native world views will continue to
be marginalized.
Two, by not acknowledging indigenous knowledge and experience such knowledge,
experience, ways of life, arid culture are unwittingly being eroded and destroyed in
countless subtle but significant ways.
The third point is perhaps the most salient. Because of the innumerable subtle ways in
which cultures are eroded and destroyed, the world is rapidly becoming a monoculture in
terms of agricultural systems, energy use, clothing, education, science, economics,
mathematics, and ways of knowing Our world views are narrowing at a frightening
pace Native Americans value their traditions, their culture, and see self-governance as a
way to secure their future."
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MIL Tribal/State Relations
Tribal/State relationships and jurisdictional issues are often complex. In a discussion
regarding the federal trust responsibility as well as the Tribal/State relationship, the Handbook
on Federal Indian Law noted that:
One of the most famous statements explanatory of the limitations upon state power in
this field is the statement in United States v Kagama [118 U.S. 375 (1886)], that [Tribes]
owe no allegiance to the States, and receive from them no protection. Because of the
local ill feeling, the people of the States where they are found are often their deadliest
enemies. From their very weakness and helplessness, so largely due to the course of
dealing of the Federal Government with them, and the treaties in which it has been
promised, there arises the duty of protections, and with it the power. This has always
been recognized by the Executive and by Congress, and by this court, whenever the
question has arisen... .
Despite jurisdictional differences however, it is important to note that agreements and
cooperative partnerships between States and Tribes can (and have) been reached. For example,
in the 1994 National Indian Policy Center Survey of Tribal Water Quality, it was noted:
We know of several Tribal-State agreements that avoid the jurisdiction issue altogether,
while providing for information sharing, common regulatory standards and procedures,
joint inspections, cross-depulization of environmental enforcement officials, prior notice
and opportunity to comment on proposed permits, and a variety of other procedures that
address the interests of both parties and enhance environmental protection.13
l3Gover, Stetson and Williams. National Indian Policy Center, Washington, D.C., September, 1994.
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IX. Selected National/Regional Indian Organizations
In order to maximize limited Tribal resources and to ensure effective networks for
communication and dissemination of information, many tribes have joined together to form
inter-tribal consortia or national tribally-controlled organizations. In addition to these Tribal
organizations, a number of indigenous grassroots organizations have also been formed around
various topics throughout Indian Country. These organizations, while not a substitute for direct
Tribal consultation and communication, are a valuable resource for public comments and
feedback on Agency actions and for disseminating information. More than 150 tribal and
indigenous grassroots organizations exist through out the country that address environmental and
natural resource issues. Below is an illustrative selection of some of these organizations. For
information and contacts for additional organizations, please contact the American Indian
Environmental Office at (202) 260-7939.
National Congress of American Indians: The National Congress of American Indians (NCAI),
founded in 1944, is the oldest, largest, and most representative national Indian organization,
serving more than three quarters of the American Indian and Alaska Native population. NCAI is
organized as a representative congress of consensus on national priority issues. NCAI issues and
activities include, protection of Indian cultural resources and religious freedom, promotion of
Indian economic opportunity, and support of environmental protection and natural resources.
Over the past few years, NCAI has passed numerous resolutions supporting various
environmental issues. (202) 466-7767
National Tribal Environmental Council: The National Tribal Environmental Council (NTEC)
was formed in 1992 and is a membership organization dedicated to working with and assisting
Tribes in the protection and preservation of the reservation environment. NTEC is open to
membership to federally recognized Indian tribes and currently has 82 member Tribes from the
continental United States and Alaska. NTEC services include, environmental technical support,
newsletters, updates and federal regulatory and legislative summaries, workshops on specific
environmental issues, resource clearinghouse and reference library, and intergovernmental
cooperation. (505)242-2175
United South and Eastern Tribes: The United South and Eastern Tribes (USET) is an
intertribal organization comprised of 23 federally-recognized Tribes. The primary goals and
objectives of USET include the promotion of Tribal health, safety, welfare, education, economic
development, and employment opportunities and the preservation of cultural and natural
resources.
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Arizona Inter-Tribal Council: The Arizona Indian Tribes incorporated in 1975 to form the
Inter Tribal Council of Arizona (ITCA). Today, after seventeen years of operation, 19 federally
recognized Arizona Indian Tribes belong to ITCA. Representatives serving on the Association
consist of the highest elected official of each Tribe. ITCA's staff of 32, currently implements
over eighteen projects, fulfilling their members goals of ensuring self-determination of Arizona
Tribes through their participation in the development of policies and programs which affect their
lives.
Northwest Indian Fisheries Commission: The Tribes of the Northwest established the
Northwest Indian Fish Commission in 1974 to help them coordinate orderly fisheries and to
provide members Tribes a single, unified voice on fisheries related issues. The Commission
employes about 50 full time people in provide informational and educational services, fishery
management, planning, and enhancement support, environmental coordination, and quantitative
and technical services. (360)438-1180.
Columbia River Inter-Tribal Fish Commission: The Columbia River Inter-Tribal Fish
Commission (CRJTFC) was created in 1977 to coordinate the management and protection of the
Tribes' treaty fishery resource and to implement the Tribes' fishery policies and objectives in the
Columbia Basin. The governing body of CRITFC, the Commission, consists of the Fish and
Wildlife Committees of each Tribe. The CRITFC staff consists of primarily of biologists,
attorneys, and other professionals who provide legal and technical assistance to the Tribes on
issues relating to protection, enhancement, and sustainable use of the fishery resources in the
Columbia River Basin. (503) 238-0667.
Great Lakes Indian Fish and Wildlife Commission: The Great Lakes Indian Fish and
Wildlife Commission (GLIFWC), provides technical assistance to its 11 member Tribes in the
conservation and management offish, wildlife, and other natural resources throughout the Great
Lakes region, thereby insuring access to traditional pursuits of the Chippewa people. During
1995, GLIFWC employed approximately 70 full-time and 125 part-time or temporary staff.
Wisconsin Tribal Environmental Committee: The Wisconsin Tribal Environmental
Committee (WisTEC) is an intertribal consortia consisting of the 11 Tribes located within the
exterior boundaries of the State of Wisconsin. WisTEC services include the management of an
EPA Environmental Justice grant to assist its member Tribes in the development of their
environmental capacity through technical assistance and intergovernmental cooperation.
Native American Rights Fund: The Native American Rights Fund (NARF) was formed in
1970 to provide top-quality legal representation to Tribes regardless of their ability to pay. Over
the last 26 years, NARF has represented over 189 Tribes and its work has included the areas of,
Tribal preservation, protection of Tribal natural resources, promotion of human rights, and
development in Indian Law. (303) 447-8760.
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\
Indigenous Environmental Network: The Indigenous Environmental Network (DEN) is
governed by a National Council of Indigenous grassroots organizations and individuals. The
services provided by the DEN National Office include, a national clearinghouse on environmental
issues, a resource and referral network for technical information and fact sheets,
national/regional/local education on grassroots organizing, training, and strategy development,
annual conference planning and development, and information dissemination on indigenous
grassroots environmental groups and Tribal government environmental programs.
(218)751-4967.
American Indian Science and Engineering Society: The American Indian Science and
Engineering Society (AISES) is a private, nonprofit organization which nurtures building of
community by bridging science and technology with traditional native values. EPA has a
partnership with AISES known as Tribal Lands Environmental Science Scholarship Program,
through which the Agency provides educational opportunities to Native American students.
(303) 939-0023.
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I
CHAPTER TWO
OVERVIEW OF FEDERAL INDIAN LAW AND POLICY
L Definitions of Common Vernacular
Specialized areas of study often have their own special words or terminology or "terms
of art" which are generally understood in that field. At times, the field of study will take
ordinary words and give them special meaning. This practice also occurs in the field of Indian
affairs. The public curiosity about Indian affairs has resulted in a general familiarity with the
terms of art. Many of the terms and their meanings are obvious. They have appeared in print or
film or radio or television for years. Following are a few of the terms that are relevant to the
issues of land and the Tribal-federal government relationship.
A. Indian Country
The term "Indian Country" is often confused with the term, "Indian Reservation." An
Indian reservation is simply land, set aside for a Tribe or Tribes. Indian country, on the other
hand, is a significant legal term.
[TJhe term "Indian Country", as used in this chapter, means (a) all land within the limits
of any Indian Reservation under the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and, including rights-of-way running through
the reservation, (b) all dependent Indian communities within the borders of the United
States whether within the original or subsequently acquired territory thereof, and whether
within or without the limits of a State, and (d) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way running through the same.
Court cases have made clear that Indian trust lands also fall within the definition of
Indian country. Thus, Indian country includes Indian Reservations, dependent Indian
communities, Indian allotment lands, and trust lands.
Indian Country in Oklahoma
Indian country exists in Oklahoma, but whether formal reservations exist is still an
unsettled question. Generally, the lands of the Western Oklahoma Tribes are held in trust by the
United States government, while the lands of the Five Civilized Tribes14 of Eastern Oklahoma
were ceded by the United States to the Tribes in what was known as Indian Territory. The
Eastern Tribes did not acquire mere reservations on the public domain in a territory destined to
become a future state, but rather received land where Tribal governments could operate without
interference or competition by non-Indians and territorial or State governments. The lands were
I
E
I
14 The Cherokee, Choctaivs, Chickasaws, Creeks, and Seminoles.
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ceded to the Tribes and, as stated in the treaty, the Tribes retained the power to pass "all such
laws as they may deem necessary for the government and protection of the persons and property
within their own county."15 Understanding this, the question of whether there are formal
reservations in Oklahoma may not be as relevant as once thought and the existence of Indian
country should set Oklahoma Tribes in virtually the same position as other Indian Tribes. The
Supreme Court has said that it is immaterial whether Congress designated a settlement of Indians
as a "colony" or "reservation" or whether the land is "trust land", rather the test for Indian
country is:
Whether [the land] has been validly set apart for the use and occupancy of Indians as
such, under the superintendence of the government.16
The Supreme Court of Oklahoma has also recognized the existence of Indian country in
Oklahoma and its importance when it stated:
The touchstone for allocating authority among various governments has been the concept
of "Indian Country," a legal term delineating the territorial boundaries of federal, state,
and Tribal jurisdiction. Historically, the conduct of Indians and interests in Indian
property within Indian Country have been matters of federal and Tribal concern.17
A further indication that Oklahoma Tribes still retain governmental authority over lands in
Oklahoma is that the Eastern Tribes were exempted from the General Allotment Act and nothing
in subsequent allotments expressly conveyed the reserved rights away from the Tribes.
Furthermore, the Tenth Circuit has held that Congress did not intend or act to completely abolish
Tribal jurisdiction over Tribal lands, to divest federal government of its authority, or to permit
assertion of jurisdiction by Oklahoma11 and rejected the argument that these Tribal lands had
been disestablished.19 Finally, the Supreme Court has recognized that "no part of the land
granted to [the Tribes] shall ever be embraced in any Territory or State."20
Although some issues remain on how to effectively implement environmental programs
for Indian lands in Oklahoma and disputes over the extent of Tribal jurisdiction are still ongoing,
it is clear today that Oklahoma Tribes generally possess the same types of governmental
15 See, e.g. Treaty of New Enchota, December 29, 1835, 7 Stat. 478.
16 ITS v.McOm-aiy 302U.S. 535 (I93K); S">ahn, II S v John 437 U.S. 634 (1978).
17 Ahhoah v HoUSmg Authprity nf the Kiovyq Tribe, 660 P.2d 625 (Ok. 1983).
18 Indian Country, U.S.A. v. Oklahoma Tax Commission, 829 F.2d 967 (lOthCir. 1987).
*9Chickasa\v Nation v Oklahoma Tax Commission 31 p.2d 964 (10th Cir. 1994).
20 Choctaw Nation v Oklahoma, 397 U.S. 620, 635 (1970).
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authority as other federally-recognized Indian Tribes. This authority extends to regulatory
jurisdiction over Indian country in the same manner as other Tribes.
B.
Reservations
The Royal Proclamation of 1763 had made clear that the lands of the Indian nations not
"ceded to or purchased by" the Crown were "reserved to Tribes...as their hunting grounds...."
Since the British colonial era, Tribes have reserved certain lands for their own use. In 1778 the
United States in their first treaty with an Indian government, the Treaty with the Delawares,
guaranteed that Indian Nation all the Tribal territory described in former treaties. Thus from the
very earliest days of Indian-white relationships, Tribal governments have been selling certain
lands to non-Indian governments while reserving the unsold lands for Tribal use.
In the United States the land the Tribal governments withheld from sale have been called
"Indian reservations" and in Canada they are called "Indian reserves." We see the same
terminology applied where other lands are withdrawn for special uses such as the military
reservations of the federal government. It is one of the types of land that is defined as Indian
country. EPA considers any lands validly set apart for the use of Tribes to be reservations. It is
the term most often applied when trying to describe Indian country.
C.
Allotments
Various federal policies have been enacted throughout United States history which have
resulted in significant loss of Tribally-controlled lands. One example of this can be seen in the
establishment of reservations. Other examples can be found when various federal policies and
programs reduced the size of reservations. During the period of history in which assimilationist
policies were adopted by the federal government, significant loss of Tribally-controlled lands
also occurred through the creation of "allotments "
Within the allotment system, the reservations of affected Tribes were divided into
individual parcels called allotments. Each member of affected Tribes was allotted a homestead
of 160 acres (the actual acreage might vary) which, in many instances, Tribal members were
meant to farm The allotment system was utilized as an assimilation tool, and it was believed
that by discouraging or disallowing the traditional "communal" type of land use, privatization of
land ownership would force Tribal members to become quickly assimilated into the non-Indian
culture
Privatization of land, through the allotment system, resulted in Tribal members being
taxed for the land for the first time. Since most Tribal cultures did not utilize cash within their
economic cultures, it was reasoned that Tribal members residing on privatized land-bases, in an
effort to pay their taxes, would be encouraged to become farmers, engage in private businesses,
etc.
When the reservations were divided this way the major part of the reservation remained
undivided. This area was declared surplus to Indian needs and sold to non-Indian fanners. The
allotments to the individual Indians were held in trust by the United States government like the
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Tribal lands with a promise to turn them over to the Indian in fee simple at the end of a set term
such as 21 or 25 years. During the trust period the lands were not subject to federal or State
taxes. After this time, huge amounts of allotment lands were lost for nonpayment of taxes, and
more lands were sold to non-Indians in an effort to raise money to pay taxes on remaining lands.
After 1934 the tax free status was extended indefinitely.
D.
Fee Lands
In the property law of the United States, it is possible to hold several different types of
interests in land or real property. If a person holds or own lands in fee simple this means that he
has unqualified ownership in the land and, within the limits of the law, has the power to utilize
the land as he pleases. This fee simple ownership is described as legal title. Fee simple land
must be distinguished from Trust land. Both fee simple and Trust land can exist within a
reservation.
E.
Trust Lands
Significant portions of Indian land are held in trust for the Indian Tribes by the federal
government. Within these trust lands, Indians were said to hold the beneficial title and the
United States held the fee simple title. These lands are sometimes referred to as trust lands.
As trustee, the United States is obligated to use its integrity and ability to look after the
best interests of the Tribal members. Part of the protection provided by the trust relationship
includes protecting the land interests of the Tribes. In many instances, the federal government
also remains the trustee for allotted lands. In purchasing land from the Indian Tribes through
use of the Treaties, the U.S. government committed itself to providing certain services to the
Indians as part of the payment for the land. Depending on the particular arrangements, these
services sometimes included support for Tribal government, as well as education, social and
medical services. Trust obligations continue today.
F. Rancheria
The small land holdings that the Indians of California hold are now sometimes called
rancherias because of the historical background from the days of the occupation by the Spanish
and Mexican governments. The Spanish made their claim to California in 1542 but colonization
did not effectively begin until 1769 with the establishment of the mission San Diego de Alcala
Spanish policy had placed Indians under the control of individuals in the encomienda system
who pledged military service to the crown, instruction in Christianity, protection to the Indians,
and maintenance of the Church and the clergy. Under the reduction system, Indians were to be
placed in isolated missionary communities under the supervision of the clergy. The estates of
the nobility and the church were ranches or rancherias. In 1836, the missions were to be
secularized and the communities were to become Indian towns. When the United States acquired
California in the Mexican War (1846-48), the bands of Mission Indians had to face a new legal
system. The result was 18 treaties negotiated in 1853 which the Senate did not ratify.
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In an 1875 executive order, reservations were created and many of the Indians relocated there.
In 1890, the Mission Relief Act was passed to provide some additional lands to California
Indians.
G. Dependent Indian Communities
The creation of "Indian Communities" were often a direct result of various
assimilationist policies and allotment programs of the federal government. At various points in
United States history, the federal government attempted to assimilate Tribal people into the non-
Indian society. Many of these attempts resulted in the loss of Tribal governmental power, loss of
significant Tribal land bases, and the forced privatization of many remaining lands. With Tribal
governmental power significantly diminished and remaining land bases divided into "allotments"
for privatization purposes, those Tribes affected by assimilationist policies were dramatically
changed. In many instances, Tribal members were often forced to live in fixed communities,
rather than in the traditionally scattered sites within the general Tribal jurisdictional area.
Sometimes, Tribal members were separated from the rest of their Tribe by significant areas of
land and in these instances, different bands of Indians ended up in the same community.
Many of these communities remain today and are considered to be a part of Indian Country.
The effects of assimilationist policies and enactment of allotment practices between 1887
and 1934 are reflected in the names which appear in the written constitutions that were adopted.
The traditional Tribal identity may appear in the name of the presently recognized Tribe, for
example, the Absentee-Shawnee Tribe of Indians of Oklahoma. The band and Tribal identity
may be expressed in the current name, for example, the Bad River Band of the Lake Superior
Tribe of Chippewa Indians of the Bad River Reservation. Or the Tribal government may have
included its community identity in the present name, for example, the Bay Mills Indian
Community of the Sault Ste. Marie Band of Chippewa Indians, Bay Mills reservation, Michigan;
the Covelo Indian Community of the Round Valley Reservation, California; and the Gila River
Pima-Maricopa Indian Community of the Gila River Indian Reservation of Arizona.
H. Colony
The concept of "Indian colonies" was designed to promote assimilation of Tribal
members into the non-Indian society. It was believed that the Indian residents of these colonies
could find employment in the nearby non-Indian communities. Colonies were most often
established in Nevada and California to provide land where Indians could be permanently
located and build adequate housing. Colonies, like Indian communities, are often considered to
be "Indian country." Examples of Indian Colonies are the following: Reno-Sparks Indian
Colony and Yerington Colony of Nevada, and the Elem Indian Colony in California. Reno-
Sparks Colony achieved some level of notoriety because the U.S. Supreme Court determined it
was a dependent Indian community in US v. McGowan (1938).
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I
I. Ceded Territory
Many Tribes have retained treaty rights to hunt, fish, and gather other resources in off-
reservation territories which were once their own but which the Tribes ceded to the United States
in exchange for peace or protection. Like the treaties which guaranteed them, these rights are
part of the "supreme law of the land." The federal government's trust responsibility includes
protecting treaty rights whether on or off reservation. Although the exact nature of EPA's trust
responsibility regarding a Tribe's treaty right in ceded territory has never been defined by a
court, related case law suggests that, as a federal agency, EPA has some such duty. This duty
most likely includes an obligation that EPA and/or EPA-approved programs are implemented in
such a way as to protect Tribal treaty rights.
IL Indian Country: Changing Times and Federal Policies
Tribes have a complex relationship and history with the federal government. Indians and
the United States government have been involved in formal relations since the early years of the
republic. Early in the federal governments establishment, the US. dealt with Indians as
sovereign foreign powers with whom they entered into treaties. The position of Superintendent
of Indian Trade was established to regulate commerce between United States citizens and £
Indians. To interfere in the internal aiffairs of the strong Indian governments would not have ^
been possible for the young nation.
As the United States grew in size and strength, its citizens demanded Indian lands and
resources. In 1824, an Office of Indian Affairs was established within the War Department. In
1849, the Indian office was transferred to the newly established Department of Interior. Since
1849, the Bureau of Indian Affairs hais played the primary role in carrying out the federal
government's trust obligations to Indians. Throughout the federal government however, each
Department and Agency, also must work to uphold the trust responsibilities with the Tribes, as
well as the government-to-government relationship. As a result, Tribal-specific issues are
handled in every federal Department and Agency.
Significant volumes of Tribal-specific legislation and regulations are drafted each year.
During the 104th Congress, for example, to date, over 190 bills impacting Native American
individuals and their governments have been introduced. 502 bills were introduced in the 103rd
Congress. In 1995, there were over 380 State bills on Indians and 1,039 different notices in the
Federal Register referring to Indians.
The principles of Tribal sovereignty and support and protection of Indian self-
government remain in effect today and have formed the backdrop for Indian policy statements
from President Washington to President Clinton. Today, Indian governments use these
principles to assert their right to self-government; this includes the operation of Tribal court
systems, the protection of treaty rights and their lands, and the right to seek fulfillment of federal
trust obligations.
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Over the years, United States Indian policy has ebbed and flowed in its support of Indian
sovereignty and self-governance. Not surprisingly, much of the policy has been influenced by
local and national economic interests. Sometimes it has been Congress that has advocated or
detracted from Indian sovereignty and at other times it has been the courts. Despite aberrations
and anomalies, consistent strains of federal-Indian policy persist. These include: Tribal
sovereignty, support of Indian self-governance, and protection of Indian self-government.
A. Earliest Treaties (1608 - 1830)
From 1608-1830, England and the United States signed the first treaties with Tribal
governments. Most treaties created during this time period were designed to promote peace and
friendship between the governments. It is important to note that it is during this time period that
the first Indian reservations were created. During this same period, the Supreme Court
recognized Indian sovereignty in the two historic decisions, Cherokee Nation v. Georgia and
Worcester v Georgia
B. Removal (1830 - 1850)
From 1830-1850, the United States instituted the Indian Removal Act policies, designed
to move the Tribes west of the Mississippi into the Louisiana Territory. Thousands of people
were "removed" from all over the U.S., many of them to what is now the State of Oklahoma.
The removals were difficult for Tribal members, who were often forced to leave their territories
without adequate provisions and equipment for the long journey ahead. Thousands died along
the way. Several Tribes refer to their removals as the "Trail of Tears." Once west of the
Mississippi, Tribes were often forced to stay in assigned territories that offered inadequate and
unsustainable resources.
C. Reduction of the Indian Land Base (1850-1871)
From 1850-1871, additional treaties were negotiated, often to reduce the size of
reservations. The Great Peace Commission was sent out in 1867 to negotiate peace and
friendship treaties with the Tribes. One hundred and sixteen treaties were negotiated during this
period.
D. Assimilation and the Allotment Era (1887 - 1909)
Ironically, this era was, in part, due to well-intentioned, but uninformed, "friends" of the
Tribes, operating under the premise that Tribal members were "uncivilized." Reservations were
divided into 160-acre "Allotments" which were assigned to every member of an affected Tribe.
Acreage left over from the division of the reservations into Indian homesteads was declared
surplus and sold to ranchers, farmers and railroads. It was believed the Allotment system would
make Tribal people into tax-paying farmers - assimilated into non-Indian communities. The
primary result between 1887 and 1934 was the loss of millions acres of land and the
displacement of thousands of Indians.
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E. The Indian Reorganization Act of 1934: The Support of Tribal Government
The Tribal Governments operating today are influenced and shaped by the Indian ^P
Reorganization Act (IRA) of June 18, 1934. (48 Stat. 984) (25 U.S.C. Sec. 476). This Act, _
which is also known as the Wheeler-Howard Act, did not "give" governments to the Tribes. *
They had been governing themselves for thousands of years. Rather, it reaffirmed that Tribal
governments had inherent powers which were officially recognized by the United States
Government. Powers of Indian Tribes, 55 I.D. 14, 65 (1934).
F. Termination: An Old Policy With a New Twist (1950 - 1970)
After World War II, the United States' spirit of commitment to Indian self-determination |
ebbed, and many of the reforms made during the 1930's were reversed. While the war years
marked a dormant period in Indian-United States relations, the post-war years saw the
development and implementation of a "new" policy which brought a halt to the development of
Tribal government for nearly two decades.
Termination was presented as a method of making Indians "first-class citizens", even
though they had been made United States citizens in 1924 (Act of June 2, 1924,43 Stat. 253).
By terminating the special trust relationship and a recognition of the sovereign status of Indian
Nations, the United States government would be promoting their "assimilation" socially,
culturally, politically, and economically into the mainstream of American society. According to
the 1949 Hoover Commission Report on Indian Affairs, through termination, Indians would be
given the same rights and responsibilities of all other citizens, including the obligation to pay
taxes, a notable motivation behind the policy.
The report of the Hoover Commission, published in 1949, advocated complete
integration of Indians into the dominant society. With Indian advocacy in the federal sector at a
low point, this outlook quickly gained momentum. Certainly, some legislators sincerely
believed that integration was both equitable and a desirable solution for the endemic problems
encountered by the rural and isolated nature of Indian reservations. This concern and
Nationalistic post-war "Americanism" led to an easy passage of House Concurrent Resolution
(HCR) 108.
Although a statement of policy only, HCR 108 was quickly followed by the Public Law
280 in August of the same year and subsequently by many pieces of legislation which
"terminated" the special relationship between specifically named Indian Tribes and the United
States.
Public Law 83-280, Act of Aug. 15, 1953, 67 Stat. 388, passed in 1953, P.L. 280 gave
Wisconsin, Oregon, California, Minnesota, and Nebraska criminal and civil jurisdiction in
Indian country and provided a mechanism whereby the States could assume permanent
jurisdiction over Indian Nations. The law applied to most of the Indian land within the
boundaries of those five States The power given to these States did not include the power to
tax, regulate, or decide the ownership or use the Indian property. The statute also authorized
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other States to assume civil and criminal jurisdiction over Indian territory by making appropriate
changes in their State constitutions or laws. In 1968 the law was amended to require the consent
of Indian Nations before States could assume jurisdiction, 25 U.S.C. 1301 et seq.
Over 70 Indian Tribes and rancherias lost federal recognition under the termination
policy. Through Congressional legislation, many terminated Tribes have had their federal
recognition restored.
G. U.S. Indian Policy Since 1970-The Self-Determination Era
The authority of Tribal government has been defined further in the last two decades. The
termination era ended for all practical purposes in the 1960's and was formally put to rest by
Congressional action in the 1980's. The political authority of Tribes to provide effectively for
the economic and social well-being of their Tribal members has in the past decade been
enhanced by various Presidential policy statements and legislative acts.
The 1970 Indian Policy Statement of President Nixon is often viewed as the beginning of
the Self-Determination Era. President Nixon's official federal Indian policy was Self-
Determination without termination. Congress, acknowledging that the assimilation/termination
policy was a failure, rejected the termination policy by passing the Menominee Restoration Act
(1973). Overall, a significant amount of legislation impacting Tribal governments has occurred
during this Self-Determination era.
For instance, on January 4, 1975, Congress enacted the Indian Self-Determination and Education
Assistance Act was enacted. The Act provides that:
"The Congress, after careful review of the federal Government's historical and special
legal relationships with, and resulting responsibilities to, American Indian people, finds
that:
1. The prolonged federal domination of Indian service programs has served to retard
rather than enhance the progress of Indian people and their communities by depriving
Indians of the full opportunity to develop leadership skills crucial to the realization of
self-government, and has denied to the Indian people an effective voice in the planning
and implementation of programs for the benefit of Indians which are responsive to the
true needs of Indian communities; and
2. The Indian people will never surrender their desire to control their relationships both
among themselves and with non-Indian governments, organizations, and persons.
The Indian Self-Determination Act, in addition to reiterating the federal government's
recognition of Tribal sovereignty, was intended to strengthen Tribal governments by directing
the Bureau of Indian Affairs (BIA) and Indian Health Service (IHS) to contract out to Tribes
most of the services administered by these agencies. The Act also authorized grants to help
strengthen Tribal management of Indian community services. Of singular importance is the
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Act's explicit disclaimer that the law is in no way a termination of the federal government's trust
responsibility to Indian Tribes.
In the fall of 1988 the U.S. Congress passed a law to bring this Act up to date. The new
law is entitled the "Indian Self-Determination and Education Assistance Act of 1988." The law
adds this new language:
"(b) The Congress declares it; commitment to the maintenance of the federal
Government's unique and continuing relationship with, and responsibility to, individual
Indian Tribes and the Indian people as a whole through the establishment of a meaningful
Indian self-determination policy which will permit an orderly transition from the federal
domination of programs for, and services to, Indians to effective and meaningful
participation by the Indian people in the planning, conduct, and administration of those
programs and services. In accordance with this policy, the United States is committed to
supporting and assisting Indian Tribes in the development of strong and stable Tribal
governments, capable of administering quality programs and developing the economies
of their respective communities.
P.L. 100-472, Act of October 5, 1988, 102 Stat. 2285.
Under Title HI, the amendments to the law provide for the support of demonstration Tribal Self-
Governance Projects.
The Tribally-Controlled Schools Act of 1988 reemphasizes Tribal control by stating that
"the Indian Self-Determination and Education Assistance Act, which was a product of the
legitimate aspirations and a recognition of the inherent authority of Indian Nations, was and is a
crucial positive step towards the Tribal and community control. . . ." Congress also took the
opportunity to make a declaration of policy in this law which "declares its commitment to the
maintenance of the federal Government's unique and continuing trust relationship with and
responsibility to the Indian people. ..." Congress defined a National Goal towards Indian
people in these words:
The Congress declares that a major National goal of the United States is to provide the
resources, processes, and structures which will enable Tribes and local communities to
effect the quantity and quality of educational services and opportunities which will
permit Indian children to compete and excel in the life areas of their choice, and to
achieve the measure of self-determination essential to their social and economic well-
being.
The Act specified that "Congress affirms the reality of the special and unique educational needs
of Indian peoples, including the need for programs to meet the linguistic and cultural aspirations
of Indian Tribes and communities." The Act also reaffirmed federal relations by stating that
"Congress declares its commitment to these policies and its support, to the full extent of its
responsibility, for federal relations with the Indian Nations."
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HI. Indian Country: Selected Legal Doctrines
Federal Indian law refers to United States federal law regarding the treatment of Tribal
governments, lands, resources, and people. Although the United States, early in its history,
recognized that the Indian Nations are sovereign governments, the relationship between the
federal, State, and Tribal governments has constantly been evolving. As a result, Indian law is
one of the most complex and dynamic fields in the law today. The scope of federal Indian Law
is very broad including but not limited to: environmental, natural resource, international,
property, tax, administrative, tort, and corporate law. For more than a century, Presidents,
Supreme Court Justices, Attorney Generals, Secretaries of the Interior, and Commissioners of
Indian Affairs have commented on the complex and highly specialized nature of federal Indian
law. Federal law governing Indians generally consists of the United States Constitution, treaties,
agreements, statutes and regulations, executive orders, and court decisions. Federal Indian law is
vital to Indian survival. Whether water, land, oil, or the very ability to govern themselves is the
crucial issue for an Indian Nation, Native Americans look to federal Indian Law to make sure
their rights are secure.
A. Tribal Sovereignty
Concepts of sovereignty and government were discussed by the United States Supreme
Court as early as the 1830's. From that time through the present the Supreme Court has
generally followed a course of upholding Indian sovereignty and the ability of Tribes to exercise
sovereign powers.
While the exercise of sovereign powers by Indian governments has been restricted to
some extent by the terms of treaties and statutes passed by Congress to carry out those treaties,
there is no doubt that the United States and other Nations have recognized the inherent
sovereignty of Indian Nations and their right to self-government. Handbook of Federal Indian
Law, at 232; U.S. Department of Interior, Solicitors Opinion, Powers of Indian Tribes, at 55 I.D.
14 (1934).
Today, when viewing Tribal sovereignty and Tribal governmental powers, it is important
to remember that Tribes generally have all governmental powers that have been retained and not
expressly taken. In other words, Indian Tribes generally have all the powers of self-government
of any sovereign except insofar as those powers have not been modified by treaty or repealed by
an act of Congress. Tribal governmental powers are generally not delegated powers granted by
express acts of Congress, but instead, are the inherent powers of sovereignty which have never
been extinguished. Each Indian Tribe begins its relationship with the federal government as a
sovereign power, recognized as such in treaty and legislation. As a result, the laws and
decisions of the Tribal governing authorities have the force of the law.
The most basic of all Indian rights, the right to self-government, is not a right that has
been granted by the United States Congress, the President, or the Courts. Tribes are qualified to
exercise powers of self-government because they are independent, separate, political entities.
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The inherent sovereign authority of Indian Tribes is described by Felix Cohen, in the Handbook
of Federal Indian Law.
The most basic of all Indian rights, the right to self- government, is the Indians' last
defense against administrative oppression, for, in a realm where the States are powerless
to govern and where Congress, occupied with more pressing national affairs, cannot
govern wisely and well, there remains a large no-man's land in which government can
emanate only from officials of the Interior Department or from the Indians themselves.
Self-government is thus the Indians' only alternative to rule by a government
department.11
The powers of sovereignty have been limited from time-to-time by special treaties and
laws. Statutes of Congress, then, must be examined to determine the limitations of Tribal
sovereignty rather than to determine its source or its positive content. What is not expressly
limited remains within the domain of Tribal sovereignty.
In October of 1934, Nathan Margold, Solicitor of the Department of the Interior, was
called upon to render an opinion entitled the Powers of Indian Tribes. This opinion, which
appears at 55 ID. 14, was intended to interpret the meaning of Section 16 of the Wheeler-
Howard Act in which the phrase the "powers vested in any Indian Tribe or Tribal council by
existing law" appears. Solicitor Margold noted in his opinion,
[Powers vested in any Indian Tribe or Tribal council by existing law] does not
refer merely to those powers which have been specifically granted by the express
language of treaties or statutes, but refers rather to the whole body of Tribal
powers which courts and Congress alike have recognized as properly wielded by
Indian Tribes, whether by virtue of specific statutory grants of power or by virtue
of the original sovereignty of the Tribe insofar as such sovereignty has not been
curtailed by restrictive legislation or surrendered by treaties.
The opinion addresses a number of Tribal government powers in depth including "the Power of
an Indian Tribe to Define its Form of Government." The following is an introductory paragraph
of that subject:
Since any group of men, in order to act as a group, must act through forms which
give the action the character and authority of group action, an Indian Tribe must,
if it has any power at all, have the power to prescribe the forms through which its
will may be registered. The first element of sovereignty, and the last, which may
survive successive statutory limitations of Indian Tribal power is the power of the
Tribe to determine and define its own form of government. Such power includes
the right to define the powers and duties of its officials, the manner of their
appointment or election, the manner of their removal, the rules they are to
21Cohen, Handbook of Federal Indian Law 122 (1988).
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observe in their capacity as officials, and the forms and procedures which are to
attest the authoritative character of acts done in the name of the Tribe. These are
matters which may be determined even in a modern civilized nation by unwritten
custom as well as by written law. The controlling character of the Indian Tribes'
basic forms and procedures has been recognized by State and federal courts,
whether evidenced by written statute or by the testimony of tradition.
The inherent sovereignty of Indian Nations was recognized in Iron Crow v Qglala Sioux
Tribe, 231 F.2d 89 (8th Cir. 1956). In that case, members of the Tribe asked a U.S. court to stop
the Sioux Nation from enforcing two Tribal laws in its Indian courts. One law made adultery a
crime. The other law imposed a tax on persons who leased Indian lands for grazing. The U.S.
court of appeals upheld the Tribe's power to make and enforce its own laws. The court said that
Indian Nations were recognized by the U.S. Constitution as sovereign governments which
possessed "all the inherent rights of sovereignty" except where Congress had specifically
restricted their powers. The inherent powers of Indian Nations included both the power to make
and enforce criminal laws and to tax. Neither of these powers had been limited by Congress and
since the powers were inherent, no act of Congress was necessary to support those powers.
In Williams v T.ee, 358 U.S. 217 (1959), a non-Indian who operated a store within the
Navajo Nation sued an Indian customer in the Arizona State courts claiming that the Indian
customer had not paid for goods sold to him on credit. The Indian appealed to the U.S. Supreme
Court claiming that the State courts did not have jurisdiction over the case. The Court
recognized that under treaties with the Navajos, "the internal affairs of the Indians remained
exclusively within the jurisdiction of whatever Tribal governments existed," and that their
sovereign power had not been limited by Congress. Since the Navajo Tribal court exercised
jurisdiction over suits by non-Indians against Indians arising on the reservation, the court held
that "to allow the exercise of State jurisdiction here would undermine the authority of the Tribal
courts over reservation affairs and hence would infringe on the right of the Indians to govern
themselves."
In conclusion, by virtue of their sovereign status, Indian Tribes in the United States
continue to function as permanent ongoing political institutions exercising the basic powers of
government necessary to fulfill the needs of their Tribal members.
B. Federal Trust Responsibility
The federal trust responsibility arises from Indian treaties, statutes, executive orders, and
the historical relations between the United States and Indian Tribes. The trust relationship was
not created by a single document nor is its scope defined in any one place. Overall, the trust
responsibility relates to the United States' unique legal and political relationship with Indian
Tribes The trust relationship relates directly to the development and implementation of federal
policy. It requires that the federal government consider the best interests of the Tribes in its
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I
dealings with them and when taking actions that may affect them. The trust responsibility
includes protection of the sovereignty of each Tribal government. 4fe
In a narrower sense, the trust responsibility defines the precise legal duties of the United i
States in managing property and resources of Indian Tribes and, at times, individual Indians. In *
protecting Indian property, the United States must meet the stringent standards of good faith and
due diligence. These standards apply to all dealings with the Tribes and to all actions impacting
the Tribes. For example, the federal government must meet these standards in managing and
accounting for monies in Indian trust funds, as well as protecting and managing Indian lands and
natural resources.
Congress plays a primary role in defining the trust responsibility. While Congress has f
placed major trust responsibilities in the Department of Interior, it also has delegated certain
duties to other government agencies. Every federal Department and Agency is responsible for
upholding the federal trust responsibility to the Tribal governments. For example, the federal
government's trust responsibility on issues impacting human health or the environment are
upheld primarily through the cooperative efforts of the Environmental Protection Agency, the
Department of Interior's Bureau of Indian Affairs and the Department of Health and Human
Services's Indian Health Service, although when needed other agencies also lend support. [
C. Treaty Rights
One of the more misunderstood areas of federal Indian law is Indian treaties. Under
international law, treaties are a means for sovereign nations to relate to each other. European
Nations first recognized the need to enter into treaties with Indian governments shortly after
1500. All of the colonial powers, and later, the United States recognized the sovereignty of
Indian Nations by entering into over 800 treaties with Indians.
The U.S. made hundreds of treaties and "agreements" with Indian Nations. The first
U.S.-Indian Treaty was the Treaty with the Delaware in 1778. The purposes of treaties varied.
Prior to 1830, a significant number of the treaties were designed to promote peace, friendship,
and commerce. Later however, the treaties often were designed to obtain more land and
resources from the Tribes.
According to the Handbook on Federal Indian Law, within any examination of Indian
treaties with the United States, it is important to acknowledge that:
The legal force of Indian treaties did not insure their actual enforcement. Some
important treaties were negotiated but never ratified by the Senate, or ratified only after a
long delay Treaties were sometimes consummated by methods amounting to bribery, or
signed by representatives of only a small part of the signatory Tribes. The federal
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government failed to fulfill the terms of many treaties, and was sometimes unable or
unwilling to prevent States, or white people, from violating treaty rights of Indians.22
As more and more treaties were signed, committing the federal government to large
financial payments, a dispute arose in Congress. Each treaty required the United States to pay,
often through a combination of "gifts", money, and materials, a purchase price or a reparation
amount to the Tribal governments participating in the treaties. Under the U.S. Constitution, only
the Senate ratifies treaties. The U.S. House of Representatives, the body with responsibility for
budget, wanted to have more control over payments made through Indian treaties. With the
passage of a rider to an Indian Appropriations Act in 1871, the U.S. ceased to make "treaties"
and began to make "agreements" with Indian Tribes. This offered the U.S. House of
Representatives more control in the process.
Although the United States no longer makes treaties with the Indian Tribes today, the
federal government continues to consult with Indian Nations and to make agreements with them
concerning a wide variety of issues including: human health and environmental protection,
management of Tribal land and resources, economic development, housing, and education.
Through treaties, Indian Nations ceded certain lands and rights to the United States and
reserved certain lands ("reservations") and rights for themselves. In many treaties (especially
those negotiated during the 1850's and 1860's), Indian governments reserved hunting, fishing,
and/or gathering rights in territories beyond the land which they reserved. These were typically
called "usual and accustomed" places. (See examples at the end of this chapter.) Generally,
unless changed or abrogated by a subsequent treaty or statute, treaties are still the law of the
land. In 1832, Chief Justice John Marshall said this:
The words "treaty" and "nation" are words of our language, selected in our diplomatic
' legislative proceedings, by ourselves, having each a definite and well understood
ming. We have applied them to Indians as we have applied them to other nations of
and
Hive proceedings, oy ourselves, naving eacn a ucium
meaning. We have applied them to Indians as we have applied
the earth. They are applied to all in the same sense
Worcester v Georgia, 31 U.S. 515, 559(1832).
Continued Validity of Treaties
U.S. Courts have abided by principles of International Law when interpreting treaties.
Thus, any ambiguities are usually interpreted in the favor of the weaker party. In the case of
Indians, because the negotiations were often held in foreign languages, such as English, and the
cultural traditions were different, such as the concept of land ownership, the courts have
"Cohen. Handbook of Federal Indian Law, 36 (1988).
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traditionally given the Indians the best possible interpretation. In fact, " a cardinal rule in the
interpretation of Indian treaties is that ambiguities are resolved in favor of the Indians." a
Many people unfamiliar with Indian history and Indian law fail to support Indian treaty
rights because they believe that a breach or violation of any part of the treaty on the part of the
United States has somehow nullified them. A breach or violation of treaty terms does not
nullify a treaty. Generally, Congress must specifically and directly repeal a treaty by legislation
to invalidate it. Age alone has not invalidated treaties as the "Supreme law of the land."24
Continued Significance of Treaties
Treaties are very important in understanding the rights of Indian governments and Indian
people today. The 1979 United States Supreme Court decision of Washington v Washington
State Commercial Passenger Fishing Association, ruled on the validity of treaties signed in 1854
with Indians of the Pacific Northwest. In this decision, the Court stated: "a treaty, including one
between the United States and an Indian Tribe, is essentially a contract between two sovereign
nations...." The Court also restated general principles about treaties and recognized that, through
treaties, Indian Nations granted certain rights to the United States and reserved land and rights
for themselves.
Treaties are significant to all Tribes, even to those Tribes that did not enter into treaty
relations with the federal government, because they acknowledge the sovereign nature of Tribal
governments and reserve for Indian Tribes critical rights and access to lands and resources.
First, they established a pattern of legal and political interaction based on negotiation between
two sovereigns. Second, treaties form the foundation of international as well as federal Indian
law affecting all Tribal governments. Finally, even though some Tribes did not formally enter
into a treaty with the United States government, subsequent dealings through executive orders or
legislation generally have been based on a series of consultations and negotiations between a
Tribe and the federal government, similar to the treaty process.
D. Criminal and Civil Jurisdiction
The term "jurisdiction" relates to those powers that a government has over people and
property within a distinct geographical boundary. Jurisdictional disputes between federal, State,
and Tribal governments result in the most complex problems in the field of Indian law.25
Tribal Jurisdictional issues were first examined by the United States Supreme Court, early in the
country's history. In 1832, in Worcester v Georgia, Chief Justice Marshall affirmed the
sovereignty of the Cherokee Nation and rejected the idea that State laws can have any force and
23 Cohen, Handbook of Federal Indian Law, 37 (1988).
"I Jniled Steles v Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876).
2SCanby, American Indian Law :m a Nutshell, 89 (1981).
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effect on Indians within Tribal boundaries. Presently the general rule remains the same: States
have no authority over Indian affairs, Tribal governments, or reservation lands. Numerous
judicial decisions acknowledge the doctrine of Federal Preemption to handle Indian affairs when
examining what jurisdiction States may exercise in Indian country.
State Constitutions and Enabling Acts reinforce the State exclusionary concept.
Disclaimers of jurisdiction over Indians residing within the borders of a State were common in
those former U.S. territories admitted to Statehood in the late nineteenth century having
significant Indian populations. When dealing with the problem of federal or State jurisdiction,
the test is generally not whether a State had disclaimed jurisdiction, but whether Congress has
authorized such jurisdiction for the State in federal legislation.
More generally, it should be noted that, Tribal governments have the general power to 1)
make laws governing the conduct of Indians in Indian Country, 2) establish bodies such as Tribal
police and courts to enforce the laws and administer justice, 3) exclude or remove people from
lands within Tribal jurisdiction for cause, and 4) regulate hunting and fishing, land use,
environmental pollution, and other activities of non-Indians on fee lands within reservations that
may have some direct effect on the political integrity, the economic security, or the health and
welfare of the Tribe.
The power of the Tribes to establish courts is firmly recognized in U.S. federal law. In
Iron Crow v Oglala Sioux Tribe, a federal court of appeals upheld the jurisdiction of a Tribal
court to punish members of the Tribe for violating a Tribal law, and to enforce a Tribal tax on
non-Indians who leased lands on the reservation The court stated that the power of the Tribe to
establish courts to enforce its laws was not dependent upon any federal law, but was inherent in
the Tribe's sovereignty.
In QHphant v Suquamish Indian Tribe, 98 S. Ct. 1079 (1978) two non-Indians violated
Tribal laws on the Port Madison Reservation and were convicted and sentenced by the Tribal
court. In this case, the Supreme Court held that Indian Tribes have no inherent power to try and
punish non-Indians who commit crimes on Indian reservations unless the Tribe has been granted
such power in a treaty of agreement or by act of Congress. The Court stated:
"Indian Tribes do retain elements of 'quasi-sovereign' authority after ceding their lands to
the United States and announcing their dependence on the federal government," the
Court maintained that "by submitting to the overriding sovereignty of the United States,
Indian Tribes therefore necessarily give up their power to try non-Indian citizens of the
United States except in a manner acceptable to Congress."
The Supreme Court could find no law which specifically removed the Tribal power to assert
criminal jurisdiction over non-Indians, yet it ruled that the exercise of this power is "inconsistent
with the status" of Indian Tribes. The Court found that the Tribe's criminal jurisdiction over
non-Indians had implicitly been curtailed by the entire history of Indian-United States relations.
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For the first time, the Supreme Court declared that a fundamental Tribal power could be
extinguished by implication.
The case of Montana v United States, 450 U.S. 544 (1981), raised the question of the
extent of Tribal powers to regulate the conduct of non-Indians on lands held in fee by non-
members within the exterior boundaries of a reservation where the Tribe was relying only on
Tribal authority. The Supreme Court decided that the Tribe did not have regulatory powers over
non-Indians on fee lands inside the reservation unless 1) the non-Indians engage themselves in
some kind of consensual relationship through commercial dealings, contracts, leases or other
arrangements, or 2) the non-Indian conduct "threatens or has some direct effect on the political
integrity, the economic security, or the health and welfare of the Tribe."
This court ruling, as well as the noted exceptions, comprise the "Montana Test" which
EPA employs in an effort to determine jurisdictional authority. Under EPA's formulation of the
test, a Tribe can demonstrate "inherent" authority over the activities of non-Indians on fee lands
by showing that the activities to be regulated on the fee lands threaten or have some direct effect
on the political integrity, the economic security, or the health and welfare of the Tribe that is
serious and substantial. EPA relies on this case, as well as Biendak and Bourland (discussed
below) to determine the scope of Tribal inherent authority to regulate activities on non-Indian
owned fee lands located within a reservation, under serval environmental statutes.
In the splintered decision of Brendale v. Confederated Tribes and Rands of the Yakima
Nation, 429 U.S. 408 (1989), the Supreme Court found that the Tribe had authority to zone fee
lands located in an area of the Yakima reservation heavily populated by Indian Tribal members,
but that the State had zoning authority over fee lands on a part of the reservation in the suburbs
of Yakima, Washington, where there was substantial non-Indian ownership. In developing its
regulations for water quality standards programs on reservations under the Clean Water Act,
EPA read the primary significance of Brendale to be in its result, which was fully consistent with
the Montana test. The Court applied the Montana test, finding Tribal authority over activities
that would threaten the health and welfare of the Tribe. Conversely, the Court found no Tribal
jurisdiction where the proposed activities would not threaten the Tribe's health or welfare. In
1993, the Supreme Court handed down its most recent decision on the issue of Tribal civil
jurisdiction over non-Indians. In South Dakota v Bourland, 113 S.Ct. 2309 (1993), the Court
employed the original language of Montana's "direct effects" standard, thus reinforcing the
original Montana test.
In Washington Department of Ecology v United States Environmental Protection
Agency., 752 F. 2d 1465 (9th Cir. 1985), Washington State had requested and was granted the
authority to administer environmental programs within the State with the exception of Indian
lands Washington then filed suit against the Environmental Protection Agency seeking to
prevent the agency from denying its authority over reservations in the State. The District Court
upheld EPA's determination that Washington had failed to demonstrate its jurisdiction over
Tribal lands. The Ninth Circuit Court of Appeals found that RCRA did not authorize the States
to regulate Indians on Indian land.
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E. Tribal Sovereign Immunity and Suits Against Tribes
Generally Tribes, as a function of their sovereign status, are immune from suits unless
the Tribe has consented thereto or been subjected thereto by a superior power.26 A suit against
an Indian Tribe cannot be maintained in the absence of clear Congressional authorization.27
Indian Tribes, like the United States, are sovereigns immune from civil suit except where
expressly authorized.
It has been the settled policy of Congress not to sanction suits generally against...
Indian Nations .... In respect to their liability to be sued by individuals, except in a few
cases, they have been placed by the United States, substantially, on the plane occupied by
the States under the eleventh amendment to the constitution. The intention of congress to
confer such a jurisdiction [to hear a suit against an Indian Tribe] upon any court would
have to be expressed in plain and unambiguous language.2*
F.
The Alaska Difference
The status of Alaskan Natives is an area of continuing controversy. The
Russian-American Treaty of Cession in 1867 contained provisions which required Alaskan
Natives to be treated on the same basis and under the same laws as the Native Americans in the
lower 48 States. In 1934 the Indian Reorganization Act (IRA) definitions of "Indian" included
"Eskimos and other aboriginal people of Alaska. ..." A 1936 amendment to the IRA made clear
that "groups of Indians in Alaska" could adopt constitutions, bylaws and seek charters of
incorporation under which to organize their business enterprises.
Because of the great distances and harsh weather conditions that are present in Alaska,
native governments have primarily and traditionally operated at the local level. In fact, there are
over 1,200 individual native village and community associations operating in Alaska. The
majority of these native villages and community associations used the provisions of the IRA to
reorganize their governments in the 1930s. These governments adopted IRA, or western, style
26 Cohen, Felix S. Handbook of Federal Indian I.au, United States Government Printing Office, Washington
1982.
27 Id.
28 Id
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constitutions and function in a manner similar to many of the Indian Nations in the continental
United States.
Congress dealt with the status of Alaska Native Tribes after the discovery of a huge oil
field on the "north slope" of the Brooks Range. Alaska Natives asserted claims of aboriginal
title over the area including the trans-Alaska oil pipeline right-of-way. To settle the conflict, in
1971 Congress passed the Alaska Native Claims Settlement Act (ANCSA). The Act greatly
affected the already existing and functioning Tribal governments. Under the terms of ANCSA
all aboriginal titles in Alaska were extinguished. In addition, all but one, the Annette Island
Reserve, of the few Indian reservations in Alaska were disestablished. As compensation the
ANCSA transferred forty-four million acres and approximately 1 billion dollars to the Alaska
Natives through a structure of regional and village corporations.
ANCSA provided this compensation to 203 newly-formed village corporations, rather
than to the existing Tribal governments. The 203 native village corporations are grouped under
12 regional corporations. As a result, most of the financial power and control over the lands
now lie with the native corporations rather than the Tribal governments.
As a result of ANCSA, four different entities, the State of Alaska, the regional and
village corporations, and the Tribal governments, have an impact on the lives of Alaska Natives.
Although the native corporations, hold title to the land and are able to exert financial control
over the real property, the existing Tribal governments still exercise much control over the
political, social, cultural, and religious life of Alaska Natives. The Tribal governments are also
the administrators of a vast array of social, medical, environmental, and educational services.
On January 12, 1993, the Solicitor for the Department of the Interior released a
legal opinion on the powers of Alaska Native villages. Governmental Jurisdiction of Alaska
Native Villages Over Land and Non members, M-36975 (Jan. 12, 1993). The opinion created
uncertainty in its conclusion that specific factual determination had to be made in each case as to
whether or not Alaska Native communities were Tribes with inherent sovereign powers.
This confusion surrounding the status of Alaska Natives led to a Federal
Register notice on October 21, 1993 (58 Fed. Reg. 54,366) which included a list of 226 federally
recognized Alaska Tribes The list reaffirmed the Tribal governmental status of Alaskan Natives
in this language:
This list is published to clarify that the villages and regional Tribes listed below are not
simply eligible for services, or recognized as Tribes for certain narrow purposes. Rather,
they have the same governmental status as other federally acknowledged Indian Tribes
by virtue of their status as Indian Tribes with a government -to- government relationship
with the United States; are entitled to the same protection, immunities, privileges as other
acknowledged Tribes, have the right, subject to general principles of Federal Indian law,
to exercise the same inherent and delegated authorities available to other Tribes; and are
subject to the same limitations imposed by law on other Tribes.
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On November 24, 1993, Congress passed the Tlingit and Haida Status Clarification Act,
Pub. L. No. 103-454, 108 Stat. 4791 (Nov. 2, 1994) In this Act, Congress expressly found the
Central Council of Tlingit and Haida Indian Tribes of Alaska to be a federally recognized Indian
Tribe.
Generally, as with the Tribes in the lower 48 States, eligibility of Alaska Native Villages
under EPA's programs must be made on a program-by-program basis as well as according to the
specific directives of each statute.
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CHAPTER THREE
OVERVIEW OF ENVIRONMENTAL PROTECTION ON INDIAN LANDS
Due to the complexity of Indian and environmental law, individuals working on
environmental issues within Indian Country need a strong understanding of both Indian and
environmental law and policy. For example, jurisdictional issues will frequently impact
environmental administration. Knowledge of relevant Indian and environmental law and policy
becomes increasingly significant because these issues can become further complicated when
trying to address both Tribal and State interests.
This chapter will review concepts that are most relevant to those individuals who work
directly with the Tribes to strengthen environmental protection in Indian country and those who
develop policies; regulations and guidance that may affect Tribal resources and environmental
programs. The chapter discusses EPA's approach for implementing its Indian program. It will
also highlight current initiatives of both EPA and the Tribes to implement EPA's programs on
Tribal lands.
L U.S. Environmental Protection Agency (EPA): Overall Mission and Implementation
Over the last ten years, EPA has developed a strong Tribal program. The Agency's
Policy for the Administration of Environmental Programs on Indian Reservations (Indian
Policy), issued in 1984 and reaffirmed in 1994, recognizes the government-to-govemment
relationship between the Agency and Tribal governments and recognizes Tribes as the most
appropriate party for regulating Tribal environments where they can demonstrate the authority
and capability to do so. EPA serves federally-recognized Tribes, but in some instances may also
provide funding and technical assistance to non-federally recognized Tribes through the
Environmental Justice program.
EPA has the authority to approve Tribal management of federal programs under most
environmental statutes. These statutes originally did not explicitly allow for authorization of
Tribal programs. During the 1980's several of EPA's statutes were specifically amended
requiring the Agency to promulgate regulations for Tribes to receive program authorization.
These amendments, coupled with the Agency's 1984 Indian Policy, have allowed Tribes to
become increasingly included in EPA's programs and operations. In addition, the Agency has
noted that under several statutes where Congress did not directly address the issue of whether
EPA can approve Tribal programs, EPA nonetheless has the discretion to review and approve
such programs.
EPA statutes which have been amended specifically to allow for EPA authorization of
Tribal programs:
Safe Drinking Water Act, 1986
Clean Water Act, 1987
Clean Air Act, 1990
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In several instances, EPA has reasoned that even though Congress hasn't specifically
provided for Tribal assumption of environmental programs in legislation, the Agency has the
discretion to allow for Tribal programs. Two acts, where the opportunity to apply for
environmental programs has been extended to Indian Tribes by this method are:
Resource Conservation and Recovery Act
Toxic Substance Control Act
In addition, three other EPA statutes allow for a limited Tribal role similar to the State's
role. These are:
* Federal Insecticide, Fungicide, and Rodenticide Act
Emergency Response and Community Right-to-Know Act
Comprehensive Environmental Recovery, Compensation, and Liability Act
Currently, a significant number of Tribal governments are regulating their resources and
managing environmental programs. For example, as of July 1996, approximately 100 Tribes
had received eligibility to administer grant programs which are intended to build capacity and to
assist Tribes in developing EPA programs. Additionally, 18 Tribes have also been authorized by
EPA under the Clean Water Act (CWA) to develop water quality standards and several Tribes
have developed Tribal standards which have also been approved Overall, many Tribes intend to
eventually implement and assume enforcement responsibility for various EPA programs.
Within the last ten years, the EPA has seen a surge of Tribal environmental activity.
Several of the more significant Tribal environmental efforts with the EPA include:
Application for EPA program development grants
Tribal employment of environmental technical staff
Staff training provisions designed to enhance employee environmental capacity
Acquisition of necessary equipment
Adoption of necessary laws and codes
Development of EPA approved programs designed to protect surface and
drinking water, air quality, and land, through establishing solid waste
management programs
Tribal resources monitoring
Construction and improvement of wastewater treatment facilities
Development of Tribal Environmental Agreements
A recent survey confirms this and found that both the Tribes and the EPA are engaged in
a wide variety of environmental protection activities on reservations, especially Clean Water Act
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programs designed to address water quality protection.29 However, the study also found that
there still remain a large number of Tribes which are not regulating water quality nor are they
significantly involved in other projects to develop environmental programs. Tribes may or may
not develop environmental programs for a variety of reasons (e.g., costs involved, technical
expertise and assistance availability). Currently, EPA is developing strategies to help fill this
gap in protection.
This section will provide an overview of what Tribes and EPA are doing in the area of
environmental regulation and management as well as some of the overarching rules impacting
these actions. The information is drawn from the above-mentioned survey, data generated by
the EPA's American Indian Environmental Office and the workgroup which participated in the
development of this manual.
When sifting through the environmental statutes and regulations, and reviewing the laws
and court decisions, the following are the general principles for implementing EPA's programs
in Indian Country (It is cautioned that various federal statutes may use or define terms (e.g.,
reservations) that will control the applicability of a particular statute in Indian Country.):
1. EPA has been granted authority by Congress to ensure that environmental programs
designed to protect human health and the environment are carried out across the United
States.
2. Both States and Tribes may apply for environmental programs.
3. Consistent with federal Indian law and federal policy. Tribal governments generally
have regulatory authority over environmental quality within their own territory.
4. Generally, in the absence of an EPA approved Tribal program on Indian country, the
federal government has jurisdiction.
n.
5. EPA has a federal trust responsibility in implementing Federal environmental statutes.
Federal Policies and Executive Orders
In the development and implementation of EPA programs, the Agency must take into
consideration a number of federal policies and executive orders relating to Indian Tribes and
Native American communities. An illustrative selection of the most often controlling policies
and executive orders is discussed below. Copies of the full text can be found in the appendix.
29Gover, Stetson and Williams. National Indian Policy Center Survey, "Survey of Tribal Actions to Protect
Water Quality and the Implementation of the Clean Water Act," Washington, D.C., September 1994. The survey
collected and analyzed information on 223 Tribes from both the Tribes and EPA regional offices. This represents
41% of the total number of federally-recognized Tribes and Alaskan communities.
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A. Presidential Memorandum on Government-to-Government Relations with
Native American Tribal Governments
This memorandum was signed in April 1994, "in order to ensure that the rights of
sovereign Tribal governments are fully respected." This memorandum is applicable to every
department and agency and component bureau and office in the executive branch and is to be
followed in all interactions with federally-recognized Native American Tribal governments. The
purpose of the memorandum is to clarify the responsibility of the federal government to operate
within a government-to-government relationship with federally-recognized Native American
Tribes. Among other things, the memorandum specifically states:
The United States Government has a unique legal relationship with Native American
Tribal governments as set forth in the Constitution of the United States, treaties, statutes,
and court decisions. As the executive departments and agencies undertake activities
affecting Native American Tribal rights or trust resources, such activities should be
implemented in a knowledgeable, sensitive manner respectful of Tribal sovereignty.
B.
Executive Order and Memorandum on Environmental Justice
Executive Order 12898 on Federal Actions to Address EnvironmentalJustice in Minority
Populations and Low-Income Populations and its accompanying memorandum were signed in
February 1994. The order is designed to focus federal attention on the environmental and
human health conditions in minority communities and low-income communities and to promote
non-discrimination in federal programs substantially affecting human health and the
environment Specifically, section 6-606 of the order states that "each [fjederal agency
responsibility set forth under this order shall apply equally to Native American programs." The
Order also specifically addresses subsistence consumption of fish and wildlife. The
accompanying memorandum also specifically identifies the need for federal agencies to consider
environmental justice implications when taking actions pursuant to the National Environmental
Policy Act.
C.
Executive Order on Sacred Sites
Executive Order 13007 was signed in May 1996, to promote accommodation of access to
American Indian sacred sites by Indian religious practioners and to provide additional protection
for the physical integrity of such sacred sites. The Order applies to federally owned lands, except
Indian Trust lands. This Order reflects the federal government's continuing commitment to the
religious freedom of all Americans. The Order supplements the protections afforded by the
American Indian Religious Freedom Act Amendments, the Religious Freedom Restoration Act,
and the Presidential directive of April 1994, requiring executive branch departments and
agencies to accommodate the need for eagle feathers in the practice of American Indian religion.
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HI. EPA Policies, Guidance, and Memorandums of Understanding
A. EPA Policy for the Administration of Environmental Programs on Indian
Reservations (Indian Policy)
This Policy was first issued by EPA in 1984 and since reaffirmed by every subsequent
Agency Administrator, including Administrator Browner in March 1994. The policy is intended
to provide guidance to EPA staff and managers in dealing with Tribal governments and in
responding to the problems of environmental management on Indian reservations in order to
protect Tribal health and environments. In carrying out EPA programs, this Policy "recognizes
Tribal governments as the primary parties for setting standards, making environmental policy
decisions, and managing [environmental] programs...consistent with Agency standards and
regulations" for Indian reservations. As such, the Policy calls on the Agency to respect the
government-to-government relationship and "to give special consideration to Tribal interests in
making Agency policy." The policy also states that,
Until Tribal Governments are willing and able to assume full responsibility for
delegable programs, the Agency will retain responsibility for managing programs
for reservations (unless the State has an express grant of jurisdiction from
Congress sufficient to support delegation to the State Government).
This Policy was accompanied by an Implementation Guidance which established the National
Indian Work Group consisting of Indian Coordinators to be appointed in each of the
Headquarters Program Offices and Regional Offices. In addition, the Guidance also formally
placed responsibility for the implementation of Tribal environmental programs in three EPA
Offices which is where it remained until the establishment of the American Indian
Environmental Office in October 1994.
B. Federal, Tribal, and State Roles in the Protection and Regulation of
Reservation Environments (Concept Paper)
This paper was prepared by a workgroup coordinated by Region VIII to formalize the
Agency's role in strengthening Tribal governments' management of environmental programs.
At the time, like today, the Agency was under pressure from some States to approve State
programs on portions of Indian reservations. Administrator Reilly endorsed the paper in a July
1991 memorandum to EPA managers. The paper expresses the objective of providing for
coherent and consistent environmental regulation in reservations and preventing checker
boarding of regulatory programs on Indian reservations. The paper also recognizes that
differences between the interests of Tribal and State governments can be sensitive and
sometimes extend well beyond the specific issues of environmental protection. Thus, the paper
also directs EPA staff to promote cooperative approaches to environmental problems that
involve both Tribes and States. The principles behind this approach are administrative clarity in
the operation of regulatory programs, effective and efficient environmental management, and the
support of Tribal self-determination.
*
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C. Tribal Operations Action Memorandum
AJEO is only one component of the Agency's effort to strengthen the public health and
environmental protection in Indian Country and to improve EPA's government-to-government
partnership with Tribes. In July 1994, Administrator Browner issued a memorandum outlining
steps for prompt implementation throughout the Agency. The action items are as follows:
Establishment of Tribal/EPA Environmental Agreements (TEAS)
Establishment of Program and Regional Work plans based on TEAS
Implementation of Management and Compliance Activities
Review of Program and Regional Indian Program Organization and where
necessary modification of the organization to strengthen Tribal operations
Insurance that an Effective EPA/Tribal Liaison Capacity Exists to Provide Direct
Field Assistance to Tribes
Provision of Training to EPA Management and Staff on How to Work Effectively
with Tribal Governments
Enhanced Communications with Tribes
Use of Available Discretion to Consolidate Issuance and Administrative
Requirements of Grants
Investment of Resources into Tribal Operations.
Please see the attached copy of the July 1994 Action Memorandum for more detail on
each of the Administrator's priorities for the Agency's Indian Program.
D. EPA Environmental Justice Strategy
EPA issued this Strategy in April 1995 in response to Executive Order 12898 on
environmental justice. Among other actions, the strategy specifically addresses American
Indian, Alaska Native, and Indigenous environmental protection. Many of the initiatives
outlined in the Strategy are steps towards achieving more broad public participation and equity
in environmental protection for American Indians and indigenous communities. The Strategy
calls on the Agency to continue to work to protect and improve Tribal health and environmental
conditions by "providing outreach, education, training, and technical, financial, and legal
assistance to develop, implement, and maintain comprehensive Tribal environmental programs."
The Strategy also states that when the Agency is conducting "human health and environmental
research and other activities involving Tribal and indigenous environments and activities [to]
take into account cultural use of natural resources."
E. EPA Region 8 Policy for Environmental Protection in Indian Country
EPA Region 8 issued this Policy in March 1996, to provide detailed guidance and
information to the Region's managers and staff on how to implement EPA's Indian Policy. This
guidance is intended to respond to and clarify questions that are most frequently raised by both
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internal and external Agency customers and constituents, relating to: I) Agency protocol in
working with federally recognized Tribes; 2) Agency support of federally recognized Tribal
governments in building capacity to manage environmental programs; and 3) Agency positions
on environmental program responsibilities and jurisdiction. Currently an Agency work group,
including Region 9 as the lead regioa, Region 8, and the American Indian Environmental Office,
is reviewing the Policy to identify components that could be implemented Agency-wide.
F. Memorandum of Understanding Between the Bureau of Indian Affairs, the
Environmental Protection Agency, the Department of Housing and Urban
Development, and the Indian Health Service
The Bureau of Indian Affairs, the U.S. Environmental Protection Agency, the
Department of Housing and Urban Development, and the Indian Health Service entered into this
Memorandum of Understanding (MOU) in June 1991. The MOU recognizes that each of the
agencies have responsibilities and interests pertaining to the protection of human health and the
environment as it relates to pollution control on Indian lands. The purpose of the MOU is to
identify areas of mutual interest and responsibility of the four agencies and to encourage the
coordination of the agencies' activities to promote the most efficient and integrated utilization of
resources.
IV. National Tribal Programs
A. The American Indian Environmental Office
The American Indian Environmental Office, working with its Regional components, is
responsible for coordinating the Agency-wide effort to strengthen public health and
environmental protection in Indian Country. ATEO oversees development and implementation
of the Agency's Indian Policy and strives to ensure that all EPA Headquarters and Regional
Offices implement their parts of the Agency's Indian Program in a manner consistent with
EPA's trust responsibility to protect Tribal health and environments, Administration policy to
work with Tribes on a government-to-government basis and support of Tribal self governance.
AIEO's responsibilities also include:
providing multi-media program development grants to Tribes under the
Indian Environmental Assistance Program Act;
negotiating Tribal/EPA Environmental Agreements that identify Tribal
priorities for building environmental programs and also for direct, EPA
program implementation assistance;
developing tools to assist Tribal environmental managers in their
decisions on environmental priorities;
I
B
r*
A '_
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developing training curricula for EPA staff on how to work effectively
with Tribes; and
working to improve communication between the Agency and its Tribal
stakeholders in a number of ways, including assistance to Agency Offices
as they consult more closely with Tribes on actions that affect Tribes and
their environments, and support for regular meetings of the Agency's
Tribal Operations Committee.
EPA's Indian Program is implemented primarily by EPA Regions and Headquarter Program
Offices
B. Building Tribal Capability
Capability building, sometimes referred to as "capacity building", entails providing
Tribes with grants, training, and program technical assistance, as they develop their own
environmental programs. A significant source for building capability is through grants provided
under the Indian Environmental General Assistance Program (GAP) Act.
The objectives of the GAP Act are to provide funds to federally-recognized Tribal
governments to build capacity to administer environmental programs and to provide technical
assistance from EPA in the development of multi-media programs. Capability building activities
eligible for funding under GAP include: planning, hiring staff, monitoring, and assessing
environmental resources and pollution threats. GAP provides Tribes with an opportunity to
build a core environmental program and prioritize environmental problems.
Many EPA program-specific grants also help to build Tribal environmental capability
and can be used in concert with GAP grants to establish an integrated Tribal environmental
program. In order to receive program specific grants in the same manner as States, Tribes
generally establish their eligibility through a process referred to as "Treatment in the same
manner as a State" (TAS).
In addition to grants, the EPA also provides training and technical assistance to Tribes
and provides guidance on developing and implementing environmental programs. In some
cases, EPA provides on site staff to work with Tribes as they seek to further develop
environmental programs. EPA also hosts Tribal interns and program staff who work at EPA to
acquire an understanding of how Agency Environmental Programs work and to bring this
knowledge back to Indian Country.
C. Tribal/EPA Environmental Agreements
To build EPA's Indian Program in an manner consistent with Tribal environmental
priorities and EPA's statutory responsibilities, AIEO is developing Tribal/EPA Environmental
Agreements (TEAs) with all interested Tribes. As designed by EPA is consultation with Tribal
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leaders and environmental directors, TEAs describe the past and current condition of a Tribe's
environment, the Tribe's long-range environmental goals and near-term priorities for EPA
assistance. These agreements are intended to assist the Tribes and EPA in developing multi-year
plans for Tribal assumption of environmental programs and EPA direct implementation of
environmental programs in Indian country. The Administrator's July 1994 Action Plan for the
EPA Indian Program makes TEAs the cornerstone on which Regions and National Program
Managers are to build their Indian Programs.
On March 20, 1995, AffiO issued a template providing flexible guidance on developing
TEAs for the Regions and Tribes. The Template identified the following guiding principles:
1. As these Agreements are developed, all principles included in the Agency's Indian
Policy shall apply. This includes recognition of a trust responsibility, government-to-
government relationship, and Tribal sovereignty.
2. The government-to-government relationship shall be directly between the Agency and
a specific Tribe.
3. The Agreement shall be implemented to promote stability in funding, employment,
capacity building, infrastructure development, and other such factors that lead to long-
term program implementation for the Tribes.
4. These Agreements are being developed with the understanding that the long-term goal
is to address, implement, and maintain, where deemed necessary by the Tribe, the full
range of EPA's programs to protect public health and the environment.
5. While implementing the Agreement, the Agency is committed to on going, timely and
open communications with the Tribe. All efforts will be made to provide timely advice
on available grants and other sources of available funding, training and on going
meetings that affect Tribes. This also includes a timely transfer of state-of-the-art
technology, such as computers and data systems, as the Tribes seek to build capacity.
6. This Agreement is intended to promote flexibility while addressing the needs of the
Tribe and can be revisited as appropriate to ensure common sense approaches.
7. The principles of environmental justice shall apply to this Agreement. In general
these principles call for the Agency to assure that Tribes are afforded all opportunities
afforded to States, including procedures for Tribal participation in the Agency decision
making process. In addition, environmental justice principles call for a recognition of
Tribal cultural concerns such as subsistence needs and traditional uses of natural
resources.
The importance of the TEAs cannot be overstated. They are striking examples of the
Agency's commitment to using community-based approaches to environmental protection.
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D. Performance Partnership Grants
A Performance Partnership Grant (PPG) is a multi-program grant made to a Tribal or
State agency by EPA from funds allocated and otherwise available for categorical grant
programs. PPGs provide Tribes and States with the option to combine funds from two or more
categorical grants into one or more PPG. The purpose of the PPGs is to allow Tribes and States
to have the flexibility to address their highest environmental priorities across all media and
establish resource allocations based on those priorities, while continuing to address core
environmental program commitments. The PPGs are also intended to help the grant recipients
and EPA to reduce administrative burdens and costs by greatly reducing the numbers of grant
applications, budgets, workplans, and reports.
The PPGs, in conjunction with the Tribal/EPA Environmental Agreements (TEA) and
the General Assistance Program (GAP), should allow Tribes additional flexibility in developing
and implementing their environmental programs according to Tribal needs and priorities. Tribes
may include GAP funds in a PPG. In order to maximize the available flexibility under a PPG,
Tribes must develop a TEA that specifies how program funds will be reallocated and what
environmental outcomes are expected from the expenditure of those funds. States are required
to enter a similar agreement with EPA known as an Environmental Performance Agreement.
The Agency has issued interim guidance on Performance Partnership Grants for State and
Tribal Environmental Programs and will develop new regulations for PPGs and the
administration of continuing environmental programs to take into account the new flexibility
offered by the PPGs.
E. Tribal Assumption of Federal Environmental Programs
Tribes can assume primacy for environmental programs in Indian Country. EPA, acting
under the statutory authority provided by Congress, establishes standards relating to pollution
and a system for enforcement of these standards, and upon request of a Tribe or State, authorizes
eligible Tribes or States to establish and enforce its own or the federal environmental standards.
Tribal governments by virtue of their inherent sovereignty can exercise Tribal authority
to regulate their own affairs as well as activities occurring within their territory. Indeed, federal
Indian law permits Indian governments to exercise a great deal of civil jurisdictional powers
with respect to Indians and non-Indians.
As Tribes move to develop enforceable environmental protection programs within Indian
Country they typically undertake the following steps:
1. Establish the necessary statutory framework by passing Tribal environmental codes;
2. Draft the necessary regulations; and
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3. Establish an administrative body, if one does not already exist, which can ultimately -*
seek Tribal administrative or judicial sanctions to enforce the Tribal law. A
Treatment in the Same Manner as a State (TAS)
In order for Tribes to assume many of EPA's major grant or regulatory programs, they
generally must go through a process entitled "Treatment in the Same Manner as a State" (TAS).
The General Assistance Program (GAP) does not require Tribes to go through this process. TAS
was first put into place through the 1986 and 1987 Amendments to the Safe Drinking Water
(SOWA) and Clean Water Acts (CWA). These amendments called on the Agency to develop a
process by which Tribes could apply for grants and program authority. EPA established a TAS
process for eligibility under various programs according to the criteria identified in SDWA and
CWA. In 1990 Congress included similar provisions in the Clean Air Act Amendments.
Generally the criteria are as follows:
The Tribe must be federally-recognized.
The Tribe must have or be able to exercise substantial governmental powers.
* The Tribe must have jurisdiction over the area in question.
The Tribe must have the financial, physical and human resource capability to
effectively implement a program
In the initial years after establishing the TAS process, many Tribes and EPA staff found
the process to be overly burdensome. EPA has increasingly improved its own capacity to help
Tribes meet those eligibility requirements, and, in 1994, EPA developed a "TAS Simplification
Rule". Under this rule, EPA eliminated the need to meet all four criteria each time the Tribe
applies for a program. Once a Tribe has been deemed eligible for one EPA program, it need
only establish that it has jurisdiction and capability for each subsequent program. If the Tribe
does not have capability, it must have a plan for acquiring capability over time. This is required
because each program may require different skills and activities to provide protection that meets
the requirements of specific statutes and regulations.
Treatment-As-States, the original term for the process, was changed to "Treatment in the
Same Manner as a State" in response to Tribes objecting to the original phrase. Many Tribes
commented that they are not "States"; rather, they have a unique relationship with the United
States government. (The revised TAS regulation has been included for your reference.)
Jurisdictional Issues
In determining whether a Tribe is eligible for TAS, E As we learned earlier, Indian
governments, by virtue of their inherent sovereignty, can exercise jurisdiction to regulate their
own affairs as well as activities occurring within their territory. PA looks to see whether the
Tribe has civil regulatory jurisdiction over the area in question. One of the constant issues
facing Tribes, while attempting to apply for EPA grants or program authorization, is dealing
48 Interim Final - August 1996
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with jurisdictional issues including authority over non-member activities on fee lands and
authority to regulate off-reservation Indian country.
Tribal authority over Tribal members and lands is generally unchallenged. However,
authority over non-Indians and non-Indian lands within reservations is a difficult political and
legal issue, which is a source of friction between Tribes and States. As a result, Tribes generally
are cautious while interacting with States. Conflicts also may arise when Tribal programs
authorized by EPA and the programs established by neighboring entities have different
standards.
EPA's analysis of jurisdiction over activities of non-Indians on fee lands is based on the
Supreme Court's recognition in Montana v United States, that "a Tribe may .. retain inherent
powers to exercise civil authority over the conduct of non-Indians on fee lands within its
reservation when that conduct threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the Tribe." In determining whether a Tribe has
jurisdiction over an activity, EPA conducts a fact-specific analysis which assesses whether there
are actual or potential effects of the regulated activity on the Tribe that are serious and
substantial, recognizing that environmental activities generally have serious impacts on human
health and welfare.
Some States have contested EPA's approach, particularly the approach applied to
reservations with large non-Indian populations. The State of Montana challenged in federal
district court EPA's recent approval of the Confederated Salish and Kootenai Tribes' application
for program authorization under Section 303 of the CWA (Water Quality Standards) for all
surface waters within the boundaries of the Flathead reservation. The Flathead approval was the
first time EPA recognized Tribal authority for a regulatory program where Tribes have asserted
jurisdiction over non-member activities on fee lands within a reservation. On March 27, 1996,
the District Court granted EPA's motion for summary judgment in this case, affirming the
Agency's approach under the CWA for determining Tribal authority to establish water quality
standards within the exterior boundaries of a reservation. This case is currently on appeal.
Similar challenges have been filed in Wisconsin.
Congress has broad authority over Tribal affairs and may, by statute, delegate federal
authority to a Tribe. Such a delegation could provide a federal statutory source of Tribal
authority that would not depend on the Tribe's inherent authority. In United States v Mazurie,
419 U.S. 544 (1975), the Supreme Court examined whether the Federal government can
"delegate Federal authority" to Tribal governments over non-Indians within reservation
boundaries. The issue was raised in the Marine case within the context of the regulation of
alcoholic beverages in Indian Country in the 1970s. The Court found that Congress may
delegate federal authority to regulate the sale of alcoholic beverages in Indian country by
non-Indians even though the activity occurred on fee land within the boundaries of the
reservation. The Agency is currently deliberating the appropriate interpretation of the Clean Air
Act as to whether or not it is
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a delegation of federal authority to eligible Tribes to regulate all air sources within the exterior
boundaries of an Indian reservation.
F. Direct Federal Implementation
Under many EPA programs, States or Tribes may apply for EPA authorization to assume
program responsibilities. Given that environmental program responsibility requires capability
and significant resources, Tribes do not always find it beneficial to assume total responsibility
for EPA programs. Based upon a variety of factors, often including program costs, availability
of technical expertise and assistance, and maintenance costs, Tribal governments may select
certain prioritized activities, but may decide not assume an entire regulatory program. When
Tribes decide not to fulfill certain activities under EPA's programs or not to apply for entire
programs, EPA directly implements
the environment management programs.
The Agency's Indian Policy clearly identifies Direct Implementation as a responsibility
of the Agency:
Until Tribal Governments are willing and able to assume full responsibility for
delegable programs, the Agency will retain responsibility for managing programs
for reservations (unless the State has an express grant of jurisdiction from
Congress sufficient to support delegation to the State Government.
The following is an illustrative selection of some tools that are available for direct federal
implementation:
Communications with Tribes
Establishment of Tribal\EPA Environmental Agreements (TEAs) which identify
Tribal priorities and help with budget development
Development of Regional and National Environmental Work plans based on
TEAS.
Development of Regional strategies so that DI is consistent with Tribal priorities.
Training of management and regional staff
Below, are several success stories which document instances in which direct implementation is
occurring successfully:
Many Regions assist with the regulation of Drinking Water Sources and of
underground injection wells that can affect drinking water, surface water and
ground water sources.
Region 8 provides staff to visit reservations and to provide compliance and
enforcement services under the Underground Storage Tank Program of the
Resource Conservation and Recovery Act.
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Interim Final - August (996
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On the Colville Indian Reservation, Region 10, in conjunction with the Tribe, has
established federal water quality standards and is issuing discharge (NPDES)
permits for the navigable waters within the exterior boundaries of the reservation.
G. Protocol for EPA Interactions with Tribes
There is not one set of rules that can guide EPA management and staff to successful
interactions with Tribes. Rather there are general considerations which should be reviewed
before communicating with Tribes and/or visiting Indian Country. Various organizations within
the Agency may wish to put into place guidelines on protocol. These guidelines would cover
such items as who should call the Tribal Chair, who should be contacted at a reservation before
an EPA representative visits, who should sign correspondence with a Tribe, and how Tribal/EPA
meetings should be conducted. For an example of a regional protocol guideline, please see the
attached Region 8 Policy.
According to Terry Williams, the first Director of EPA's American Indian Environmental
Office (AIEO), problems sometimes arise in situations in which non-Indians are interacting with
Tribes, and the following facts exist:
1) The non-Indian has inaccurate knowledge about Indian-U.S. history; and
2) Both sides fear unknown factors regarding the other.
Williams stated that it is his belief that most Americans intrinsically value fairness, and
that given the right tools and context, they would be more supportive to Indian governments.
The importance of open communication between Tribal and State and federal government
representatives has been repeatedly stressed, by Indian and non-Indian leaders. With better
communication, better understanding and partnerships will result.
While all Tribes are unique and differ in leadership and the stage of development of their
governmental and economic infrastructure, they still can be approached. What is most important
for non-Indians to do is to approach all Tribes with respect and sincerity about forging a
relationship.
EPA staff that work with Tribes on a regular basis offer the following reflections on their
experiences interacting with Tribes:
Some Tribes have two tiers of government (legal/political and traditional/actual).
In other words, the titular head is not always the decision-maker. This is
particularly true with more traditional governments such as the Pueblos.
Indian people have been hurt by government initiatives so many times before that
they are often skeptical of new proposals. Relationship building, education and
time are needed to overcome this.
EPA has its own culture that can impede communication when others don't
understand the vocabulary, the philosophy and/or the methods.
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Interim Final - August 1996
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It is important to remember that environmental protection issues are not the only
areas of concern Tribal governmental leaders face. Most Tribal governments deal
with significant unemployment, education, health, welfare, jurisdictional, etc.
issues. Additionally, keep in mind that in many instances, Tribal governments
are under-staffed.
Indian leaders (particularly Tribal chairmen, chiefs, governors, Presidents) are
extremely concerned about the lives of their people on a micro level. It is not
uncommon for a leader to sit by the bedside of a terminally sick member and deal
with members on a family or individual level. This concern often results in
differences between Tribal, State, and federal standards regarding government
approved risk. While EPA may find 1/1,000 is an acceptable risk, to Indian
people, each member of a small Tribe is vitally important and therefore, the Tribe
may find the EPA risk standard unacceptable.
V. National Work Groups arid Committees
A. Tribal Operations Committee
In order to improve communications and build stronger partnerships with the Tribes, the
Agency established the Tribal Operations Committee (TOC) in February 1994. The TOC is
comprised of 19 Tribal Leaders or their environmental program managers (the Tribal Caucus)
and EPA's Senior Leadership Team, including the Administrator, the Deputy Administrator, and
the Assistant and Regional Administrators. The TOC meets on a regular basis to discuss
implementation of the environmental protection programs for which EPA and the Tribes share
responsibility as co-regulators. All Tribes are encouraged to communicate with the members of
the TOC Tribal Caucus. Although the TOC is an important and effective vehicle for enhancing
communications between EPA and the Tribes, it is not a substitute for Agency consultation with
individual Tribes in accordance with the Administration policy of working with Indian Tribes on
a government-to-govemment basis.
B. Agency Indian Program Senior Managers
This group is chaired by the Assistant Administrator for Water and includes a Senior
Manager designated by each Assistant Administrator and Regional Administrator and the
Director of the American Indian Environmental Office. This group meets once a month via
teleconference to discuss pressing and/or nationally significant issues, policy and program
direction, and to exchange information between Headquarters and Regions. The group was
established to help the Agency meet the Administrator's high expectations for progress on
strengthening the Agency's Indian program and to help identify any program weaknesses.
C. National Indian Work Croup
The role of the National Indian Work Group (NIWG) was initially defined in the 1984
Indian Policy Implementation Guidance. The NIWG is chaired by the Director of the American
52 Interim Final - August 1996
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Indian Environmental Office and is composed of representatives from Regional and Program
Offices, generally the Indian Coordinator. The NIWG was established to facilitate and
coordinate efforts to: identify and resolve policy and programmatic barriers to working directly
with Indian Tribes; to implement comprehensive Tribal environmental programs; to identify
priority Tribal projects; and to perform other services in support of the Agency managers in
implementing the Indian Policy. The NIWG holds regular bi-weekly conference calls and
usually meets at least once each year.
D. National Indian Law Work Group
The National Indian Law Work Group (NILW) is the counterpart to the National Indian
Work Group for addressing legal issues that arise in the course of developing and implementing
the Agency's Indian program. The NILW is composed of lawyers and some policy staff from
EPA's Regional Counsel and Program Offices, the Office of General Counsel, and the
American Indian Environmental Office, and from the Department of Justice who work on
federal Indian law issues. The NILW meets once a month via teleconference to discuss pressing
and/or nationally significant Indian law issues related to environmental protection and to
exchange information on common issues and problems. Also, the NILW usually meets once
each year.
E. American Indian Advisory Council
The American Indian Advisory Council (AIAC) is a Special Emphasis Program Council
organized under the Office of Civil Rights. The central purpose of AIAC is to serve as an
advisory group to the Administrator of EPA to recommend actions that address concerns of
American Indians in the EPA workforce, and of the Indian Tribes for which EPA acts as trustee.
Membership is open to all employees of EPA who share AIAC's beliefs.
F. National Environmental Justice Advisory Council Indigenous Peoples
Subcommittee
The National Environmental Justice Advisory Council (NEJAC) was charted as a Federal
Advisory Committee in 1993. The Council has 25 representatives from key environmental
justice constituencies, including community-based groups, business and industry, academic and
educational institutions, Tribal governments, State and local governments, non-governmental
organizations, and environmental organizations. The Council has six Subcommittees, one of
which is the Indigenous Peoples Subcommittee. This Subcommittee has eight members with a
diversity of backgrounds, such as Tribal government, indigenous grassroots groups and
environmental organizations, Tribal business and industry, academia, and State government.
This Subcommittee is primarily focused on reviewing Agency actions to address environmental
justice and developing recommendations for bringing about environmental justice in Indian
country.
G. Other EPA Advisory Councils with Tribal Representation
53 Interim Final - August 1996
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EPA has numerous Federal Advisory Councils that have been chartered to address
various environmental issues, from the Grand Canyon Visibility Transport Commission to the
Common Sense Initiative. Many of these advisory councils have now appointed at least one
Tribal representative, but some groups still lack Tribal representation. These stakeholder forums
offer an additional mechanism for obtaining general Tribal input on a variety of EPA issues.
VL Regional Programs and Operations
Federally-recognized Tribes reside in nine of the Agency's ten Regions (Region III is the
exception). Each of these nine Regions has appointed a Regional Indian Coordinator, and some
of the Regions have established an Indian Program office. Most of the Regions have a Regional
Indian Work Group which acts as a Regional counterpart to the National Indian Work Group.
Some Regions employ field staff to work directly with the Tribes in their development and
implementation of environmental programs. These field staff are sometimes referred to as
Indian Environmental Liaisons, Circuit Riders, or Senior Environmental Employees, depending
on the Region. Most of the Regions have also establish a Regional counterpart to the Tribal
Operations Committee. Some Regions have a formal Regional Tribal Operations Committee
(RTOC) comprised of Tribes residing within that Region, while others have instituted regular
meetings between Tribal Leaders and the Region's senior management. Some Regions have
both an RTOC and regular all-Tribes meetings.
VTL Tribal Operations in Other Selected Federal Departments/Agencies
A. White House Domestic Policy Council
The Domestic Policy Council has established a Working Group on American Indians and
Alaska Natives to coordinate across the federal executive branch efforts to address key issues
affecting Indian Country. The Working Group is chaired by the Secretary of Interior and is
composed of Secretary and Assistant Secretary level representatives from each of the federal
departments/agencies with responsibility for American Indian and Alaska Native issues. The
Working Group has five subgroups, including one on the Environment and Natural Resources
which is co-chaired by the Director of the EPA American Indian Environmental Office and the
Assistant Secretary for the Bureau of Indian Affairs.
B. White House Council on Environmental Quality
The Council on Environmental Quality (CEQ) is primarily responsible for overseeing the
implementation of the National Environmental Policy Act (NEPA) and coordinating
environmental issues across the federal executive branch. Thus, CEQ plays an important role in
the protection of Tribal environments, since the responsibility for this protection is shared by
many federal departments and agencies. Also, issues regarding the implementation of NEPA
have played a prominent role in the management of Tribal environments. In recent years, CEQ
has been working with EPA to strengthen the Tribal role under NEPA and to ensure Tribal
consultation when a federal department of agency has the lead in developing NEPA documents.
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Interim Final - August 1996
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C. Department of Interior
The Department of Interior (DOI) has multiple Offices and Bureaus that have significant
responsibilities to Indian Tribes. Primarily, the Bureau of Indian Affairs has the lead for the
federal executive on general Indian issues. In addition, the Office of American Indian Trust has
the primary responsibility for overseeing the federal government's trust obligations, and the
Assistant Solicitor for Indian Affairs has the primary role of furthering Indian legal issues and
protecting Indian rights. Also, many of the land use and natural resource bureaus and offices at
DOI have responsibilities for issues that affect Tribal environments, such as the Bureau of Land
Management, the Office of Surface Mining, the Fish and Wildlife Service, and the National Park
Service.
D. Department of Justice
The Department of Justice (DOJ) plays a unique role in the protection of Tribal
environments and natural resources. Generally, DOJ will be requested by an agency referral to
file a law suit on behalf of another federal agency, such as EPA or DOI, or to defend such
agencies against a suit. In the context of Tribal environments, EPA and/or DOI have the option
to request that DOJ take an enforcement action, when such an action is warranted by law, against
a pollution source causing environmental harm to Tribal resources. Given that most Tribal
environmental programs are in the early stages of development, this alternative method, as
opposed to Tribal enforcement, offers a potentially powerful tool for ensuring the protection of
Tribal environments. In order to handle litigation requests related to Indian Tribes, DOJ
established an Indian Resources Section within the Environment and Natural Resources
Division. The Environmental Defense, Environment Enforcement and General Litigation
sections also play key roles in the Environmental and Natural Resources Division with regard to
environmental litigation involving Tribes. Also, DOJ recently established the Office of Tribal
Justice to coordinate litigation strategies relating to Tribes and to better promote issues of federal
Indian law.
In June 1995, the Attorney General issued the DOJ Policy on Indian Sovereignty and
Government-to-Government Relations with Indian Tribes. The purpose of this policy is:
To reaffirm the Department's recognition of the sovereign status of federally recognized
Indian Tribes as domestic dependant nations and to reaffirm adherence to the principles
of government-to-government relations; to inform Department personnel, other federal
agencies, federally recognized Indian Tribes, and the public of the Department's working
relationship with federally recognized Indian Tribes; and to guide the Department in its
work in the field of Indian affairs.
E. Department of Health and Human Services (ANA, IHS)
55 Interim Final - August 1996
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The Department of Health and Human Services (HHS) has two Offices which
specifically handle Indian issues. The Indian Health Service (IHS) with is a public health
service designed exclusively to address Indian health issues. As part of many Indian treaties, the
federal government guaranteed health care to Indian people in exchange for peace, friendship,
and land. IHS has the primary responsibility of caring out these treaty and trust obligations.
Among other services provided, IHS operates numerous hospitals throughout Indian Country.
The Administration for Native Americans (ANA) is a general Indian service organization that
primarily manages various Tribal grant programs. Most importantly to EPA, is the ANA grant
program for Improving the Capability of Indian Tribal Governments to Regulate Environmental
Quality. This program is similar to the Agency's General Assistance Program in that it is meant
to assist Tribes in developing their overall capacity to implement environmental programs.
F. Department of Defense
The Department of Defense (DOD), like DOI, has many activities related to its mission
that affect Indian lands. Many DOD facilities, such as military bases, bombing ranges,
overflight areas, and laboratories are located on or adjacent to Indian lands. In order to begin
addressing some of the environmental harms that have resulted from these facilities, DOD now
manages a Tribal grant program for the Mitigation of Environmental Impacts to Indian Lands
Due to Department of Defense Activities. In addition to actual facilities, Tribes are also heavily
impacted by actions taken by the Corp of Engineers. Many Tribes have been adversely impacted
by Corp projects such as the construction of dams that result in the flooding of reservations and
ceded territory and the issuance of dredge and fill permits for wetlands within the Tribes
watershed.
G. Department of Agriculture
The United States Department of Agriculture (USDA) has taken some important strides
in fulfillment of its federal trust responsibilities to the Indian Nations. In recent years, the
USDA has dramatically increased outreach and program delivery to reservation residents. For
instance, within the Rural Development Mission Area (formerly known as "Farmers Home
Administration"), home ownership programs have been modified to better meet the needs of
Native Americans living on trust lands. Increased emphasis has been placed on loan assistance
and leveraging funds, Tribal government consultation regarding housing development issues,
and the introduction of culturally-correct housing design. Additionally, increased emphasis has
been placed on economic development activities and programs on Tribal reservations. Finally,
the USDA continues to work with other federal departments in cooperative efforts designed to
meet the needs of Tribal governments (examples of this can be seen in inter-agency agreements,
etc.).
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Interim Final - August 1996
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FECTIVEE
GOVERNMEN
er Manual
Final
ronmental
nr
1 raining
August 1996
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fNTRQD UCTIQN:
Overview of Training Session - This Training Session is Designed to
Provide the Following:
Overview of Native American communities and cultures,
Overview of federal Indian law and policy,
Overview of Tribal culture, protocol, and the importance of Tribal
consultation, and
Overview of environmental protection of Indian lands
Introduce yourself.
(Overhead A)
(Overheads)
Although the training follows, for the most part, the format of the
participant text, it does not always. For instance, although Tribal culture,
protocol, and Tribal consultation issues are discussed throughout the text,
the training session will discuss these issues separately.
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CHAPTER ONE: OVERVIEW OF NATIVE AMERICAN COMMUNITIES
AIVP nn/rriRRS
1. Discuss U.S. Environmental Protection Agency (EPA): Overall Mission and
Implementation
Mission: To protect human health and the environment.
Implementation of national statutes and regulations through delegation
and authorization to Tribes and S tates, direct federal implementation, and
cooperative agreements.
2. Discuss the number of federally-recognized Tribes and land base.
Map
(This can be found at: the Appendix)
3. Definitions of Common Vernacular (See Participant Manual). Define and
Discuss:
a. Native American
Native Americans are comprised of Indians, Native Alaskans, and
Native Hawaiians. The term Native American, American Indian,
and Indigenous Peoples, however, are often used interchangeably
to refer to the people, cultures, and communities of the first
Americans, including Alaskan Natives and Native Hawaiians.
(This can be found at: the Participant Manual, page 2)
(Overhead Q
Also discuss:
Legal Definition
Tribal Definition
(This can be found at: the Participant Manual, page 2-3)
b. Federally-Recognized Tribes
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\
t-
I
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* Discuss with Trainees the five considerations which, singly or
jointly, have been particularly relied upon in reaching the
conclusion that a group constitutes a "Tribe" or "band" as
identified by the Handbook of Federal Indian Law. Note: The five
considerations are listed in the participants' manual.
(This can be found at: the Participant Manual, page 3-4)
(Overhead!))
c Break
Remind participants that information regarding Tribal culture, protocol,
and the importance of Tribal consultation will be discussed later.
Have each participant introduce him/herself to the class. Encourage
participants to also indicate background (i.e. where they work, how long
they have worked with Tribes). This introduction exercise will assist
participants in networking with each other.
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CHAPTER TWO: OVERVIEW OF FEDERAL INDIAN LAW AND
POLICY
(Begin with Overhead E)
\ Indian Country
See below.
2. Reservation^
The terms "Indian Country" and "Reservation" are often confused with
each other.
The term "reservation" refers to land that is "reserved" for Tribes. EPA
considers any lands validly set apart for the use of Tribes to be
reservations.
(This can be found at: the Participant Manual, page 19)
The term "Indian Country", on the other hand, is a significant legal term
and includes Indian reservations, dependent Indian communities, Indian
allotment lands, and trust lands.
(This can be found at: the Participant Manual, page 17-19
(Overheads F and G)
3 Allotments
* Within the allotment system, the reservations of affected Tribes were
divided into individual parcels called allotments. Each member of
affected Tribes was allotted a homestead of 160 acres (the actual acreage
might vary) which, in many instances, Tribal members were meant to
farm. The allotment system was utilized as an assimilation tool, and it
was believed that by discouraging or disallowing the traditional
"communal" type of land use, privatization of land ownership would force
Tribal members to become quickly assimilated into the non-Indian
culture.
In regions containing significant amounts of allotment land (i.e. Region 6
Oklahoma- ), it will be important for the Trainer to go into much greater
depth.
(These points can be found at: the Participant Manual, page 19- 20)
\
4 Tmst lands
Significant portions of Indian land are held in trust for the Indian Tribes
by the federal government. Within these trust lands, Indians hold the
beneficial title, and the United States holds fee simple title. These lands
-------
are sometimes referred to as trust lands.
As trustee, the United States is obligated to use its integrity and ability to
look after the best interests of the Tribal members.
Part of the protection provided by the trust relationship includes protecting
the land interests of the Tribes.
In many instances, the federal government also remains the trustee for
allotted lands.
In purchasing land from the Indian Tribes through use of the Treaties, the
U.S. government committed itself to providing certain services to the
Indians as part of the payment for the land. Depending on the particular
arrangements, these services sometimes included support for Tribal
government, as well as education, social and medical services.
Trust obligations continue today.
(These points can be found at: the Participant Manual, page 20)
Rancheria
See participants' manual for points of emphasis.
(This can be found at: the Participant Manual, page 20 - 21)
6. Dependent Indian Communities
The creation of "Indian Communities" were often a direct result of
various assimilationist policies and allotment programs of the federal
government.
At various points in United States history, the federal government
attempted to assimilate Tribal people into the non-Indian society. Many of
these attempts resulted in the loss of Tribal governmental power, loss of
significant Tribal land bases, and the forced privatization of many
remaining lands.
With Tribal governmental power significantly diminished and remaining
land bases divided into "allotments"" for privatization purposes, those
Tribes affected by assimilationist policies were dramatically changed.
In many instances, Tribal members were often forced to live in fixed
communities, rather than in the traditionally scattered sites within the
general Tribal jurisdictional area.
Sometimes, Tribal members were separated from the rest of their Tribe by
significant areas of land and in these instances, different bands of
Indians ended up in the same community. Many of these communities
remain today and are considered to be a part of Indian Country.
(These points can be found at: the Participant Manual, page 21)
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7. Colony
* The concept of "Indian Colonies" was designed to promote assimilation of
Tribal members into the non-Indian society.
Colonies were most often established in Nevada and California to provide
land where Indians could be permanently located.
Colonies are often considered to be "Indian Country."
Ask Trainees if they can identify any examples of Indian Colonies.
Reno-Sparks Indian Colony and Yerington Colony of Nevada, and
the Elem Indian Colony in California.
(These points can be found at: the Participant Manual, page 21)
8. Ceded Territory
* Off-reservation lands in which Tribes have retained treaty rights to hunt,
fish, and gather other resources.
(This can be found at: the Participant Manual, page 22)
Discuss the nature of trust respons ibility regarding a Tribe's treaty right in
ceded territory.
9 Changing Times and Federal Policies Briefly discuss:
Era of the Earliest Treaties.
Removal period
Treaties v. Agreements.
Era of Allotment and Assimilation.
Indian Reorganization.
Termination Era
Self-Determination Era.
(These points can be found at: the Participant Manual, page 22 - 26)
(Overhead H)
10. Indian Country- Selected Legal Doctrines A Discussion of Federal Indian
Ask people to jot down several words about federal Indian law. After a
minute, ask for volunteers. As you respond, try to be positive.
Federal Indian Law: Is U.S. federal law regarding the federal treatment of
Tribal governments, laws, resources, and people.
(This can be found at: the Participant Manual, page 27)
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Ask for a list of some Federal Indian Law sources.
Federal Indian Law draws from:
* International Law (i.e. Treaty issues)
Indian-U.S. Treaties and Agreements
The U.S. Constitution
* Congressional Statutes
Court Decisions
Executive Orders
* Federal Regulations
(These points can be found at: the Participant Manual, page 27)
* Note: The Scope of Federal Indian Law is very broad. It includes:
international law, property, tax, administrative, estates, torts, business, etc.
(These points can be found at: the Participant Manual, page 27)
11 Break
According to the text, you are roughly in the middle of Chapter Two.
Although the remainder of Chapter Two will be discussed later, Tribal
culture, protocol, and Tribal consultation will be discussed next.
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EPA INTERACTIONS WITH TrihES: TrihAL CULTURE, PROTOCOL
AND THE IMPORTANCE OF TribAL CONSULTATION:
1. Please note to participants that, generally, problems arise in situations in which
non-Indians are interacting with Tribes, and the following facts exist:
1) The non-Indian has inaccurate knowledge about Indian-U.S. history
2) Both sides fear unknown factors regarding the other.
(This can be found at: the Participant Manual, page 51)
2. The importance of open communication between Tribal and State and federal
government representatives has been repeatedly stressed, by Indian and non-
Indian leaders. With better communication, better understanding and partnerships
will result.
* Remind participants that there is not one set of rules that can guide EPA
management and staff to successful interactions with Tribes. Instead,
there are general considerations which should be reviewed before
communicating with Tribes and/or visiting Indian Country.
3. With this said, this would be a good time to introduce the Tribal Panelists.
Set-aside a significant block of time for this part of the training - this portion of
the training is very important.
(Suggested time allotment: two to two and one half hours (or more) for panel
discussion and question/answer period).
The Tribal Panel:
Tribal Panelists should be representative of the Tribes from the Region i.e. It
maybe inappropriate to have Tribal panelists who are members of Tribes that are
located outside of the Region Tribes are unique, and it is important for
participants to be trained by Tribal leaders who are from the same Region as the
participants.
Make sure that Panelists are not all from the same Tribe. Each Tribe is different
from all others it is important for participants to hear a variety of Tribal
viewpoints from the various Tribes within their Region.
Prior to the Training Session, the instructor should meet with the Tribal panelists
and get appropriate individual background information. This will allow the
instructor to offer a more informative panel introduction to participants.
8
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Panelists should be enrolled Tribal members who are recognized Tribal
yvernmental leaders &/or Tribal environmental program leaders.
Prior to the Training Session, the instructor should consult with Tribal panelists.
Instructor should explain the purposes of the Training. During the consultation
process, the instructor should ask Tribal panelists what issues they believe will be
important to address, etc. (This information will be helpful to the instructor when
planning the training.). The instructor should explain that the Training Manual
does not address Tribal Cultural issues because it is hoped that the Tribal panel
will be addressing those issues. Tribal panelists may wish to also discuss Tribal
consultation issues, "hot" Tribal environmental program issues. Tribal
governmental systems, etc.
Trainer may wish to video-tape the Tribal panel discussion. The tape could be
used as a future teaching tool.
3. Are Tribes a homogeneous group?
No. Discuss.
Emphasize that each Tribal Nation has separate governments, customs,
languages, religions, etc.
* Tribal panelists should be involved in this discussion.
(These points can be found at: the Participant Manual, page 9)
(Overhead I)
4. Do Tribes have any significant sovereign governmental powers?
Yes. Under U.S. Law, Tribes generally retain all power which they have
not given up in treaties and has not been taken away by an act of
Congress.
Discuss.
* Tribal panelists should be involved in this discussion.
(This can be found at: the Participant Manual, page 9-10)
5. At the conclusion of the Panel Discussion, give participants a listing of all
Tribes located within their own Region. Include the names of the elected Tribal
leader (Chairman/Governor/etc.) of each Tribe, as well as the name of the Tribal
environmental contact. Also include addresses and phone numbers of appropriate
Tribal contact people. Finally, list the name and phone number of the EPA
Regional Tribal Coordinator. This information will greatly assist communication
between EPA and Tribal governments.
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Regional Indian Coordinators can compile the information for the Trainer.
6. Various organizations within the Agency may wish to put into place guidelines
on protocol. These guidelines would cover such items as who should call the
Tribal Chair, who should be contacted at a reservation before an EPA
representative visits, who should sign correspondence with a Tribe, and how
Tribal/EPA meetings should be conducted.
8. For an example of a regional guideline, please see the attached Region 8
guidelines (See Appendix). Take time to go over it with the class. Discuss it in
detail. If the Region has its own set of guidelines, discuss those. Include Tribal
panelists in the discussion.
9. Note: EPA staff that work with Tribes on a regular basis offer the following
reflections on their experiences interacting with Tribes (Discuss; include Tribal
panelists in the discussion):
Some Tribes have two tiers of government (legal/political and
traditional/actual). In other words, the titular head is not always
the decision-maker. This :is particularly true with more traditional
governments such as the Pueblos.
Indian people have been hurt by government initiatives so many
times before that they are often skeptical of new proposals.
Relationship building, education and time are needed to overcome
this.
EPA has its own culture that can impede communication when
others don't understand the vocabulary, the philosophy and/or the
methods.
* It is important to remember that environmental protection issues
are not the only areas of concern Tribal governmental leaders face.
Most Tribal governments deal with significant unemployment,
education, health, welfare, jurisdictional, etc. issues. Additionally,
keep in mind that in many instances, Tribal governments are under
staffed.
Indian leaders (particularly Tribal chairmen, chiefs, governors,
Presidents) are extremely concerned about the lives of their people
on a micro level. It is not uncommon for a leader to sit by the
bedside of a terminally sick member and deal with members on a
family or individual level. This concern often results in differences
10
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between Tribal, State, and federal standards regarding government
approved risk. While EPA may find 1/1,000 is an acceptable risk,
to Indian people, each member of a small Tribe is vitally important
and therefore, the Tribe may find the EPA risk standard
unacceptable.
(These points can be found at: the Participant Manual, page 51-50)
Ask participants if they have any reflections that they would like to share.
Discuss.
10. Break
Encourage participants to meet with the Tribal panelist during the break.
When training continues, Chapter Two discussion will resume.
11
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CHAPTER TWO: - CONTINUED
1. Sovereignty
a. Introduce this topic by asking class to raise their hands if they consider this an
important concern of the Indian Tribes.
* Tribal sovereignty and sovereign governmental rights are of the utmost
importance to the Tribal Nations.
b. Discuss the summary of sovereign Tribal governmental powers, as stated in
the Handbook of Federal Indian Law by Felix Cohen, pages 241-242 (1982)
(First note the significance of the Handbook):
"1. [A]n Indian Tribes possesses, in the first instance, all the powers of
any sovereign state.
2. [C]onquest renders the Tribe subject to the legislative power of the
United States and, in substance terminate the external powers of
sovereignty of the Tribe, for example, its power to enter into treaties with
foreign nations, but does not by itself affect the internal sovereignty of the
Tribe.
3. [T]hese powers are subject to qualification by treaties and express
legislation of Congress. Save as expressly qualified, full powers of
internal sovereignty are vested in Indian Tribes and in their duly
constituted organs of government."
(These points can be found at: the Participant Manual, page 3-4)
(Also refer to Overhead D)
c. Emphasize that Indian Tribes generally have all the powers of self-government
of any sovereign except insofar as those powers have not been modified by treaty
or repealed by an act of Congress.
(This can be found at: the Participant Manual, page 27)
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Why is sovereignty so important?
It ensures self-government, and preservation of Tribal culture, and control
over the future of the Tribe. Discuss.
It distinguishes Indians as a "political" group rather than simply a racial or
ethnic minority. Discuss.
(These points can be found at: the Participant Manual, page 27-29)
(Overhead J)
2. The federal-Indian trust relationship and the federal trust responsibility:
(Begin With Overheads)
a. Explain that the Federal-Indian Trust relationship is one of the most important
doctrines of federal Indian law. Yet it was not created by any single document,
nor is its scope defined in any one place.
(This can be found at: the Participant Manual, page 29 - 30)
b. The federal trust responsibility arises from Indian treaties, statutes, executive
orders, and the historical relations between the United States and Indian Tribes.
(This can be found at: the Participant Manual, page 29 - 30)
c. Overall, the trust responsibility relates to the United States' unique legal and
political relationship with Indian Tribes.
(This can be found at: the Participant Manual, page 29 - 30)
d. The trust relationship relates directly to the development and implementation
of federal policy.
(This can be found at: the Participant Manual, page 29 - 30)
e. The trust responsibility requires that the federal government consider the best
interests of the Tribes in its dealings with them and when taking actions that may
affect them.
(This can be found at: the Participant Manual, page 29 - 30)
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f. The trust responsibility includes the protection of the sovereignty of each
Tribal government.
(This can be found at: the Participant Manual, page 29 - 30)
g. Congress has the power to define the scope of the trust responsibility.
(This can be found at: the Participant Manual, page 29 - 30)
h. It is a special governmental trust, in which the U.S.Congress and the agents of
the government charged with carrying out: the laws, are fat fiduciaries and the
Tribes are the beneficiaries.
(This can be found at: the Participant Manual, page 29 - 30)
i. As a fiduciary, the U.S. must meet stringent standards of good faith and due
diligence. These standards apply to actions impacting the Tribes. For example:
The federal government must meet these standards in protecting and managing
Indian lands and natural resources. Discuss this in greater depth. Have Trainees
break into small groups to discuss how the EPA can meet its trust responsibilities
to the Tribes within their own Regions.
(This can be found at; the Participant Manual, page 29 - 30)
j. Questions?
3_ Treaties and Treaty Rights*
a. Treaties:
- Overall Class discussion --
(This can be found at: the Participant Manual, page 30 - 32)
(Overhead L)
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°oints of suggested emphasis:
Worcester v Georgia. 31 U. S. 515, 559(1832) quote:
The words "treaty" and "nation" are words of our language,
selected in out diplomatic and legislative proceedings, by
ourselves, having each a definite and well understood meaning.
We have applied them to Indians as we have applied them to
other nations of the earth. They are applied to all in the same
sense.
(This can be found at: the Participant Manual, page 31)
(Overhead M)
Treaties should be interpreted in favor of Indians
(This can be found at: the Participant Manual, page 31 - 32)
(Overhead N)
* Time does not diminish effect of Treaties.
(This can be found at: the Participant Manual, page 32)
Treaties remain relevant.
is can be found at: the Participant Manual, page 32)
b. What are Treaties?
Treaties are an international legal device utilized to document agreements
between sovereign governments.
(This can be found at: the Participant Manual, page 30)
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c. Explanation of the validity of Treaties, today.
U.S. Courts have abided by principles of International Law when
interpreting treaties.
* Thus, any ambiguities are usually interpreted in the favor of the
weaker party. In the case of Indians, because the negotiations
were often held in foreign languages, such as English, and the
cultural traditions were different, such as the concept of land
ownership, the courts have traditionally given the Indians the best
possible interpretation.
(These points can be found at: the Participant Manual, page 30 - 32)
A breach or violation of treaty terms does not nullify the entire treaty.
* Many people unfamiliar with Indian history and Indian law fail to
support Indian treaty rights because they believe that a breach or
violation of any part of the treaty on the part of the United States
has somehow nullified them.
(These points can be found at: the Participant Manual, page 32)
Generally, Congress must specifically and directly repeal a treaty by
legislation to invalidate it
Age alone has not invalidated treaties.
d. Current significance of Treaties.
Ask Trainees what significance they feel the Treaties hold today.
Discuss, and also emphasize the following points:
Treaties are significant to all Tribes, even to those Tribes that did not
enter into treaty relations with the federal government, because they
acknowledge the sovereign nature of Tribal governments and reserve for
Indian Tribes critical rights and access to lands and resources.
* First, they established a pattern of legal and political interaction
based on negotiation between two sovereigns.
Second, treaties form the foundation of international as well as
federal Indian law affecting all Tribal governments.
Finally, even though some Tribes did not formally enter into a
treaty with the United States government, subsequent dealings
through executive orders or legislation generally have been based
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on a series of consultations and negotiations between a Tribe and
the federal government, similar to the treaty process.
Treaties are still the "law of the land." In 1979, the U.S. Supreme Court
ruled in Washington v. Washington State Commercial Passenger Fishing
Association, that "A treaty, including one between the United States and
an Indian Tribe, is essentially a contract between two sovereign nations..."
Treaties protect inherent sovereign rights held by Tribal governments,
including land, resources, hunting, fishing and gathering rights, as well as
governmental powers.
(These points can be found at: the Participant Manual, page 32)
e. Ask students to discuss when the Tribes in their own Regions entered into
Treaties.
f. Today, although the United States no longer makes treaties with the Indian
Tribes today, the federal government continues to consult with Indian Nations
and to work on a govemment-to-goverament basis with Tribes on a wide variety
of issues, including: human health and environmental protection, management of
Tribal land and resources, economic development, and education.
(This can be found at: the Participant Manual, page 31)
g. What did treaties do?
Through treaties, Indian Nations granted certain lands and rights to the United
States and reserved certain lands (reservations) and rights for themselves. This is
important because it supports the concept of inherent sovereignty.
Tell Trainees that the concept of sovereignty will be discussed in greater detail
later.
(This can be found at: the Participant Manual, page 31)
4. Jurisdictional Issues'
(Begin with Overhead O)
a. Tribal governments can exercise jurisdiction to regulate their own affairs as
well as activities occurring within their territory.
(This can be found at: the Participant Manual, page 33 & 48)
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b. Please note: Often, Tribes applying for EPA grants or program authorization,
must deal with a significant number of juiisdictional issues including authority
over non-member activities on fee lands and authority to regulate off-reservation
Indian Country.
(This can be found at: the Participant Manual, page 32 - 34)
* Tribal authority over Tribal members and lands is generally unchallenged.
(This can be found at: the Participant Manual, page 49)
Tribal authority over non-Indians and non-Indian lands within
reservations is often controversial, bringing forward both difficult political
and legal issues.
This is frequently a source of friction between Tribes and States.
As a result, Tribes generally are cautious while interacting with
States.
(These points can be found at: the Participant Manual, page 28 & 32-34 & 48
-50)
c. Does the EPA recognize Tribal authority over non-Indians and non-Indian
lands within reservation borders? Discuss
EPA's analysis of jurisdiction over activities of non-Indians on fee lands
is based on the Supreme Court's opinion in Montana v. United States
* The Montana case established that "a Tribe may ... retain inherent
powers to exercise civil authority over the conduct of non-Indians
on fee lands within its reservation when that conduct threatens or
has some direct effect on the political integrity, the economic
security, or the health or welfare of the Tribe."
In determining whether a Tribe has jurisdiction over an activity,
EPA conducts a fact-specific analysis which assesses whether there
are actual or potential effects of the regulated activity on the Tribe,
that are serious and substantial, recognizing that environmental
activities generally have serious impacts on human health and
welfare.
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ese points can be found at: the Participant Manual, page 32-34 & 48- 50)
d. Discuss the EPA's recent approval of the Confederated Salish and Kootenai
Tribes' application for program application under Section 303 of the Clean Water
Act (Water Quality Standards).
(This can be found at: the Participant Manual, page 49)
e. Please note: Congress has broad authority over Tribal affairs and may, by
statute, delegate federal authority to a Tribe.
Such a delegation could provide a federal statutory source of Tribal
authority that would not depend on the Tribe's inherent authority.
In the case, United States v Mazurie 419 U. S. 544 (1975), the Supreme
Court examined whether the Federal government can "delegate Federal
authority" to Tribal governments over non-Indians within reservation
boundaries. The issue was raised in the Mazurie case within the context
of the regulation of alcoholic beverages in Indian Country in the 1970s.
The Court found that Congress may delegate federal authority to regulate
the sale of alcoholic beverages in Indian Country by non-Indians even
though the activity occurred on fee land within the boundaries of the
reservation.
Relevance today: The Agency is currently deliberating the appropriate
interpretation of the Clean Air Act as to whether or not it is a delegation
of federal authority to eligible Tribes to regulate all air sources within the
exterior boundaries of an Indian reservation.
(These points can be found at: the Participant Manual, page 32 - 34 & 48- 50)
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CHAPTER THREE: OVERVIEW OF ENVIRONMENTAL
PROTECTION ON INDIAN LANDS
1. U.S. Environmental Protection Agency (EPA): Overall Mission and
Implementation Briefly discussed at beginning of course, now go into more
depth.
2. EPA's Policy for the Administration of Environmental Programs on Indian
Reservations (Indian Policy).
* Read key sections of the Indian Policy Statement to the Trainees. Have
Trainees discuss how the Policy Statement is applicable in everyday
dealings with the Tribes located in the Region.
(These points can be found at: the Appendix)
(Overheads P & Q)
In-Class Exercise:
Break participants into nine groups.
Each group review one of the nine principles of the Indian Policy.
At the conclusion of 20 minutes (suggestion:), have a
spokesperson from each group, report to the class the implications
the principle may have on everyday work.
Additional points:
Issued in 1984 and reaffirmed in 1994
Recognizes the government-to-government relationship between
the Agency and Tribal governments
* Recognizes Tribes as the most appropriate party for regulating
Tribal environments where they can demonstrate the authority and
capability to do so.
(This can be found at: the Participant Manual, page 38)
3. EPA serves federally-recognized Tribes, but in some instances may also
provide funding and technical assistance to non-federally recognized Tribes
through the Environmental Justice program.
(This can be found at: the Participant Manual, page 38)
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EPA statutes which have been amended specifically to allow for EPA
fthorization of Tribal programs. Ask participants if they can name the statutes:
Safe Drinking Water Act, 1986
Clean Water Act, 1987
Clean Air Act, 1990
(This can be found at: the Participant Manual, page 38)
(Overheads)
5. In several instances, EPA has reasoned that even though Congress hasn't
specifically provided for Tribal assumption of environmental programs in
legislation, the Agency has the discretion to allow for Tribal programs. Two acts,
where the opportunity to apply for environmental programs has been extended to
Indian Tribes by this method are:
Resource Conservation and Recovery Act
Toxic Substance Control Act
(This can be found at: the Participant Manual, page 39)
(Overheads)
_ addition, three other EPA statutes allow for a limited Tribal role similar to the
plate's role. These are:
* Federal Insecticide, Fungicide, and Rodenticide Act
* Emergency Response and Community Right-to-Know Act
Comprehensive Environmental Recovery, Compensation, and
Liability Act
(This can be found at: the Participant Manual, page 39)
(Overhead T)
6. Ask participants which Tribes within their Regions are authorized to regulate
their own programs.
Note: As of July 1996, approximately 100 Tribes had received
eligibility to administer grant programs which are intended to
build capacity and to assist Tribes in developing EPA programs.
Overall, many Tribes intend to eventually implement and assume
enforcement responsibility for various EPA programs.
(This can be found at: the Participant Manual, page 39)
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7. Ask participants to name some of the Tribal environmental efforts currently
being done with the EPA. Discuss.
Note, these efforts include:
Application for EPA program development grants
Tribal employment of environmental technical staff
Staff training provisions designed to enhance employee
environmental capacity
* Acquisition of necessary equipment
* Adoption of necessary laws and codes
Development of EPA approved programs designed to protect
surface and drinking water, air quality, and land, through
establishing solid waste management programs
* Tribal resources monitoring
Construction and improvement of wastewater treatment facilities
Development of Tribal Environmental Agreements
(This can be found at: the Participant Manual, page 39)
Ask Trainees:
* Why do you think that Tribes may not have a substantive
environmental program? Do you think that it may be because the
Tribe lack technical training? - adequate resource dollars? -Other
reasons?
* Instructor : Note that currently, EPA is developing strategies to help fill
this gap in protection.
Participants should briefly discuss what their own regions are doing.
8. Briefly, state and explain the general principles for implementing EPA's
programs in Indian Country (It is cautioned that various federal statutes may use
of define terms (e.g., reservations) that will control the applicability of a
particular statutue in Indian Country):
1. EPA has been granted authority by Congress to ensure that
environmental programs designed to protect human health and the
environment are carried out across the United States.
2. Both States and Tribes may apply for environmental programs.
3. Consistent with federal Indian law and federal policy, Tribal
22
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governments may have control over regulating environmental quality
within their own territory.
4. Generally, in the absence of an EPA approved Tribal program in
Indian country, the federal government has jurisdiction.
5. EPA has a federal trust responsibility in implementing Federal
environmental statutes.
(These points can be found at: the Participant Manual, page 40)
9. Presidential Memorandum on Goverament-to-Govemment Relations with
Native American Tribal Governments:
Have class read the memorandum.
Discuss bow the memorandum is applicable to the discussion re the EPA
Indian Policy Statement.
* Answer any questions Trainees may have.
(This can be found at: the Participant Manual, page 40 & the Appendix)
10. Break.
break, Training will focus on national Tribal programs (building Tribal
ility: EPA grants and associated activities).
(As a preview of coming events, show the participants Overhead U)
11. What does capability building entail? Note: capability building is sometimes
referred to as "capacity building".
(Begin with Overhead V)
It entails providing Tribes with grants, information, technical assistance,
and infrastructure towards Tribal administration of environmental
programs.
(Overhead W)
Although there are a variety of grants available to Tribes under specific
programs, a significant source for Tribal program building capability is
through grants provided under the General Assistance Program (GAP)
Act.
These points can be found at: the Participant Manual, page 45)
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12. What are the objectives of the GAP9
(Overhead X)
The GAP objectives are to provide funds to federally-recognized Tribal
governments to build capacity to administer environmental programs and
to provide technical assistance from EPA in the development of multi-
media programs.
* GAP provides Tribes with an opportunity to build a core environmental
program and prioritize environmental problems. Once Tribes identify
priority problems they can select other EPA grants or programs to pursue.
(These points can be found at: the Participant Manual, page 45)
13. What can Tribes do with GAP funds?
Capability building activities eligible for funding under GAP include:
planning, hiring staff, monitoring, and assessing environmental resources
and pollution threats.
(This can be found at: the Participant Manual, page 45)
14. What are Tribal/EPA Environmental Agreements, and why do we use them?
(Overhead Y)
What are they?
TEAs are designed to assist the Tribes and EPA regions to develop a
multi-year plan identifying Tribal program priorities, as well as to clarify
which regulatory programs the Tribes may be interested in assuming.
Why do we use them?
As part of the Agency's efforts to strengthen its Tribal operations, the
Agency recognized a fundamental need to better understand the Tribes
environmental conditions and management objectives. To accomplish
this, the Administrator called for the establishment of Tribal/EPA
Environmental Agreements (TEAs) in her July 14, 1994 Memorandum on
Strengthening Tribal Operations.
(These points can be found at: the Participant Manual, page 45 - 46)
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In order to receive program specific grants in a manner similar to States,
ribes generally must go through an eligibility process referred to as "Treatment
in the same manner as a State" (TAS).
(This can be found at: the Participant Manual, page 47 - 48)
a. What are the criteria for a Tribe to qualify for TAS? Discuss.
Generally the criteria are as follows:
The Tribe must be federally-recognized.
The Tribe must have or be able to exercise substantial
governmental powers.
The Tribe must have jurisdiction over the area in question.
The Tribe must have the financial, physical and human
resource capability to effectively implement a program.
(These points can be found at: the Participant Manual, page 48)
(Overhead Z)
b. What is the "TAS Simplification Rule"?
Under this rule, EPA eliminated the need to meet all four criteria each
time the Tribe applies for a program. Once a Tribe has been deemed
eligible for one EPA program, it need only establish that it has jurisdiction
and capability for each subsequent program. If the Tribe does not have
capability, it must have a plan for acquiring capability over time. This is
required because each program requires different skills and activities
necessary to provide protection that meets the requirements of the statutes
and regulations.
(These points can be found at: the Participant Manual, page 48)
(Overhead AA)
16. Tribal Operations Action Memorandum:
(Overhead BB)
Have Trainees read the Tribal Operations Action Memorandum.
Discuss the memo, emphasizing the applicability of many of the items
within this section (See above).
* Please note: It will be important to discuss each of the points:
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Establishment of Tribal/EPA Environmental Agreements (TEAS)
Establishment of Program and Regional Work plans based on
TEAS
Implementation of Management and Compliance Activities
Review of Program and Regional Indian Program Organization
and where necessary modification of the organization to
strengthen Tribal operations
Insurance that an Effective EPA/Tribal Liaison Capacity Exists to
Provide Direct Field Assistance to Tribes
Provision of Training to EPA Management and Staff on How to
Work Effectively with Tribal Governments
Enhanced Communications with Tribes
Use of Available Discretion to Consolidate Issuance and
Administrative Requirements of Grants
Investment of Resources into Tribal Operations.
17. Discuss the Template. Indicate to the class that copies of the Template are
available. Explain each of the guiding principles:
a. As these Agreements are developed, all principles included in the
Agency's Indian Policy shall apply. This includes recognition of a trust
responsibility, government-to-govemment relationship, and Tribal
sovereignty.
b. The government-to-govemment relationship shall be directly between
the Agency and a specific Tribe.
c. The Agreement shall be implemented to promote stability in funding,
employment, capacity building, infrastructure development, and other
such factors that lead to long-term program implementation for the Tribes.
d. These Agreements are being developed with the understanding that the
long-term goal is to address, implement, and maintain, where deemed
necessary by the Tribe, the full range of EPA's activities.
e. While implementing the Agreement, the Agency is committed to on-
going, timely and open communications with the Tribe. All efforts will
be made to provide timely advice on available grants and other sources of
available funding, training and on-going meetings that affect Tribes. This
also includes a timely transfer of state of the art technology as the Tribes
seek to build capacity.
f. This Agreement is intended to promote flexibility while addressing the
26
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needs of the Tribe and can be revisited as appropriate to ensure common
sense approaches.
g. The principles of environmental justice shall apply to this Agreement.
In general these principles call for the Agency to assure that Tribes are
afforded all opportunities afforded to States, including procedures for
Tribal participation into agency decision making. In addition,
environmental justice principles call for a recognition of Tribal cultural
concerns such as subsistence needs and traditional uses of natural
resources.
(These points can be found at: the Participant Manual, page 46)
Questions re the Template?
Questions re the principles?
Note to Instructor: Take a Int nf time on this TEAs are one of the most
important tnnls RPA can utilize to work effectively with the Tribes.
18. Discuss (generally) Performance Partnership Grants.
What are they & for what purpose were PPGs designed?
Are they available for Tribal use?
What are the benefits of PPGs?
How are TEAs associated with PPGs?
(These points can be found at: the Participant Manual, page 47)
19 Can a Tribe assume an environmental program?
Tribal governments by virtue of their inherent sovereignty can exercise
Tribal authority to regulate their own affairs as well as activities occurring
within their territory.
(This can be found at: the Participant Manual, page 47)
(Overhead CQ
20. Explain how a Tribe could assume primacy for Federal Environmental
Programs.
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EPA acting under the statutory authority provided by Congress,
establishes standards relating to pollution, a system for enforcement of
these standards, and upon request of a Tribe or State, authorizes eligible
Tribes or States to established and enforce its own or the federal
environmental standards.
(This can be found at: the Participant Manual, page 47)
As Tribes move to develop enforceable environmental protection
programs within Indian Country they typically undertake the following
steps:
1. Establish the necessary statutory framework by passing
Tribal environmental codes;
* 2. Draft the necessary regulations; and
3. If one does not already exist, establish an administrative
body which can ultimately seek Tribal administrative or
judicial sanctions to enforce the Tribal law.
(These paints can be found at: the Participant Manual, page 47}
21. Have the class break into small groups and discuss possible reasons that a
Tribe may not assume total responsibility for EPA programs. Afterward, have
the class share group ideas.
Based upon a variety of factors, often including program costs, technical
expertise and assistance availability, and maintenance costs, Tribal
governments may select certain prioritized activities to fulfill, but not go
as far as to take on the entire regulatory program.
(This can be found at: the Participant Manual, page 50)
22. When Tribes decide not to fulfill certain activities under EPA's programs or
not to apply for entire programs, EPA undertakes implementation. The term used
for EPA implementing its own programs is "direct implementation".
The Agency's Indian Policy clearly identifies Direct Implementation as a
responsibility of the Agency.
(This can be found at: the Participant Manual, page SO)
(Overhead DD)
28
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Have the class break into groups again. Have groups identify issues which
arise within the context of direct federal implementation. Have groups
dentify tools which can be utilized by the EPA for better implementation efforts.
Have groups identify possible solutions for better implementation techniques.
Note: Similar discussion can be found in the participant manual; to facilitate
better discussion, make sure that class members do not look at the manual during
this exercise.
(This exercise can also be used to capability building and program authorization.
It would be recommended that this approach also be utilized during the session.)
24. As a class, share group ideas. Discuss.
25. Note to the Trainer: If participants identify barriers such as:
Tribes may not want EPA to directly implement programs in their
territory for various reasons.
Lack of baseline data on Tribal environmental needs
Insufficient training for EPA staff to work effectively with Tribes
then work with the class, together, to identify how the tools (see below) may be
utilized to break down those barriers.
. The following is an illustrative selection of some tools that are available for
direct federal implementation:
Communications with Tribes
Establishment of TribalVEPA Environmental Agreements (TEAs)
which identify Tribal priorities and help with budget development
* Development of Regional and National Environmental Work plans
based on TEAS.
Development of regional strategies so that DI is consistent with
Tribal priorities.
Training of management and regional staff
(This can be found at: the Participant Manual, page 50)
27. Below, are several success stories which document instances in which direct
implementation is occurring successfully:
Many Regions assist with the regulation of Drinking Water
Sources and of underground injection wells that can affect
drinking water, surface water and ground water sources.
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Region 8 provides staff to visit reservations and to provide
compliance and enforcement services under the Underground
Storage Tank Program of the Resource Conservation and Recovery
Act.
On the Colville Indian Reservation, Region 10, in conjunction with
the Tribe, has established federal water quality standards and is
issuing discharge (NPDES) permits for the navigable waters
within the exterior boundaries of the reservation.
(This can be found at: the Participant Manual, page 51)
30
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APPENDIX
President Clinton's April 19, 1994 Memorandum: Goveniment-to-Govemment Relations
with Native American Tribal Governments
EPA Policy for the Administration of Environmental Programs on Indian Reservations
Federal, Tribal, and State Roles in the Protection and Regulation of Reservation
Environments (Concept Paper)
Tribal Operations Action Memorandum (July 1994)
Memorandum of Understanding Among the Bureau of Indian Affairs, Environmental
Protection Agency, Housing and Urban Development, and Indian Health Service
Final Tribal/EPA Agreements (TEAs) Template
Publication of Regulation Simplifying EPA's Process for Qualifying Indian Tribes for
Program Approval (i.e. "TAS" Simplification)
Tribal Operations Committee Charter
I \
er
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THE WHITE HOUSE
WASH : N 3TON
Aoril 29, 1994
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Government-to-Government Relations with
Native American Tribal Governments
The United States Government has a unique legal relationship
with Native American tribal governments as set forth in
the Constitution of the United States, treaties, statutes,
and court decisions. As executive departments and agencies
undertake activities affecting Native American tribal rights
or trust resources, such activities should be implemented in a
knowledgeable, sensitive manner respectful of tribal sovereignty.
Today, as part of an historic meeting, I am outlining principles
that executive departments and agencies, including every com-
ponent bureau and office, are to follow in their interactions
with Native American tribal governments. The purpose of these
principles is to clarify our responsibility to ensure that the
Federal Government operates within a government-to-government:
relationship with federally recognized Native American tribes/
I am strongly committed to building a more effective day-to-day
working relationship reflecting respect for the rights of self-
government due the sovereign tribal governments.
In order to ensure that the rights of sovereign tribal
governments are fully respected, executive branch activities
shall be guided by the following:
(a) The head of each executive department and agenc"
shall be responsible for ensuring that the department or agency
operates within a government-to-government relationship with
federally recognized tribal governments.
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(b) Each executive department and agency shall consult,
to the greatest extent practicable and to the extent permitted by
law, with tribal governments prior to taking actions that affect"
federally recognized tribal governments. All such consultations
are to be open and candid so that all interested parties may
evaluate for themselves the potential impact of relevant
proposals.
(c) Each executive department and agency shall assess
the impact of Federal Government plans, projects, programs,
and activities on tribal trust resources and assure that
tribal government rights and concerns are considered during
the development of such plans, projects, programs, and
activities
(d) Each executive department and agency shall take
appropriate steps to remove any procedural impediments to working
directly and effectively with tribal governments on activities
that affect the trust property and/or governmental rights of the
tribes.
(e) Each executive department and agency shall work
cooperatively with other Federal departments and agencies to
enlist their interest and support in cooperative efforts, where
appropriate, to accomplish the goals of this memorandum.
(f) Each executive department and agency shall apply
the requirements of Executive Orders Nos. 12875 ("Enhancing the
Intergovernmental Partnership") and 12866 ("Regulatory Planning
and Review") to design solutions and tailor Federal programs, in
appropriate circumstances, to address specific or unique needs of
tribal communities.
The head of each executive department and agency shall ensure
that.the department or agency's bureaus and components are fully
aware of this memorandum, through publication or other means, and
that they are in compliance with its requirements.
This memorandum is intended only to improve the internal
management of the executive branch and is not intended to,
and does not, create any right to administrative or judicial
review, or any other right or benefit or trust responsibility,
substantive or procedural, enforceable by a party against the
United States, its agencies or instrumentalities, its officers
or employees, or any other person.
The Director of the Office of Management and Budget is authorized
and directed to publish this memorandum in the Federal Register.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
MAR U199*
MEMORANDUM
SUBJECT: EPA Indian Policy
TO: All Employees
THE ADMINISTRATOR
In 1984,CPA became the first Federal agency to adopt a formal Indian Policy (copy
attached). EPA is proud of that Policy, which has provided the framework for our
developing partnership with Tribes. Since 1984 Agency programs have changed and several
of our statutes have been amended to address Tribal needs. Nevertheless, the core principle
of the Policy, a commitment to working with Federally recognized tribes on a government-
to-government basis to enhance environmental protection, has been reaffirmed by President
Clinton and remains the cornerstone of EPA's Indian program. Accordingly, therefore, I
formally reaffirm the EPA Indian Policy.
The challenge for EPA today is to implement, its PoUcy effectively. Previous
administrations have addressed implementation, both in a 1984. Policy Implementation
Guidance and a 1991 Concept Paper. We must now update and strengthen these documents
and our implementation programs to reflect the goals and values of our long-term vision and
strategic agenda. A key element for successfully implementing the Indian Policy must be a
commitment to fully institutionalize the Policy into the Agency's planning and management
activities.
On March 7, Martha Prothro, formerly Deputy Assistant Administrator for Water,
joined my staff to assist in developing our Tribal Programs. I have asked Martha and Bill
Yellowtail, Regional Administrator, EPA Region Vffl, to form a team of Agency leaders to
make recommendations on EPA/Tribal relations and the implementation of the Policy. The
work of this group, should help the Agency develop the best structure and adopt the best
strategies foi implementing the goals of the Policy. The team will work with Tribal
representatives, including the Tribal Operations Committee and others, in drafting new
implementation guidance. This guidance will provide a blueprint for tnmstbnning the
Policy's vision into a reality for federally recognized Indian Tribes, including Alaskan
Tribes.
This is an exciting opportunity for us to develop a stronger partnership with Tribal
governments in protecting the en- ironrp«nt. I asl: all of you to help make this effort a great
success.
Carol M. Browner
Attachment
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11/8/84
EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERVATIONS
INTRODUCTION
The President published a Federal Indian Policy on January 24, 1983,
supporting the primary role of Tribal Governments in matters affecting
American Indian reservations. That policy stressed two related themes:
(1) that the Federal Government will pursue the principle of Indian;
"self-government"" and (2) that it will work directly with T.ibal
Governments on a "government-to-government" basis.
The Environmental Protection Agency (EPA) has previously issu i general
statements of policy which recognize the importance of Tribal Governments
in regulatory activities that impact reservation environments. It is the
purpose of this statement to consolidate and expand on existing EPA Indian
Policy statements in a manner consistent with the overall Federal position
in support of Tribal "self-government" and "government-to-government" rela-
tions between Federal and Tribal Governments. This statement sets forth
the principles that will guide the Agency in dealing with Tribal Governments
and in responding to the problems of environmental management on American
Indian reservations in order to protect human health and the environment.
The Policy is 'ntended to provide guidance f (r EPA program managers fn the
conduct of the Age-cy's congressionally .mandated responsibilities. As
such, it applies to EPA only and does not articulate policy for other
Agencies tn the conduct of their respective responsibilities.
It is important to emphasize that the implementation of regulatory
programs which will realize the', principles on Indian Reservations cannot
be accomplished immediately. Effective implementation will take careful
and conscientious work by EPA, the Tribes and many others. In many cases.
it wil.1 require changes in applicable statutory authorities and regulations.
tr. t*ill be necessary cd proceed
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1. THE AGENCY STANDS READY TO WORK DIRECTLY WITH INDIAN TRIBAL GOVERNMENTS
ON A ONE-TO-ONE BAS'lS (THE "GOVERNMENT-TO-GOVERNMENT" RELATIONSHIP), RATHER
THAN AS SUBDIVISIONS OF OTHER GOVERNMENTS.
EPA recognizes Tribal Governments as sovereign entities w1tn primary
authority and responsibility for the reservation populace. Accordingly,
EPA will work directly with Tribal Governments as the independent authority
for reservation affairs, and not 4$ political subdivision: of Stat-es or
other governmental units.
2. THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES
FOR SETTING STANnAROb, MAKING ENVIRONMENTAL POLICY DECISIONS AND MANAGING
PROGRAMS FOR RESE .YATIOKS, CONSISTENT WITH AGENCY STANDARDS AND REGULATIONS.
In keeping with the principle of Indian self-government, the Agency
will view Tribal Governments as the appropriate non-Federal parties for
making decisions and carrying out program responsibilities affecting
Indian reservations, their .environments, and the health and welfare of
the^reservation populace. Just as EPA's deliberations and activities have
traditionally involved the interests and/or participation of State Govern-
ments, EPA will look directly to Tribal Governments to play this lead role
for matters affecting reservation environments.
3, THE AGENCY WILL TAKE AFFIRMATIVE STEPS TO ENCOURAGE AND ASSIST
TRIBES IN ASSUMING REGULATORY AND PROGRAM MANAGEMENT RESPONSIBILITIES
FOR RESERVATION LANDS.
The Agency will assist interested Tribal Governments in developing
programs and in preparing to assume regulatory and. program management
responsibilities for reservation lands. Within the constraints of EPA's
, authority and resources, this aic *ill include providing grants and ither
assistance to tribes iimilar to "hat we provide State Governments. The
Agency will encourage Tribes to assume delegable responsibilities, (i_;e.
responsibilities which the Agency has traditionally delegated to State
Governments for non-reservation lands) under terms similar to those
governing delegations to States.
Until Tribal Governments are willing and able to assume full responsi-
bility for delegable programs, the Agency will retain responsibility
for managing programs for reservations (unless the State has an express
grant of jurisdiction from Congress sufficient to support delegation to
the State Government). Where EPA retains such responsibility, the Agenty
will encourage the Tribe to participate in policy-making and to assume
appropriate lesser or partial ro'ies 1n the management of reservation
programs.
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4. THE AGENCY WILL TAK£ APPROPRIATE STEPS TO REMOVE EXISTING LEGAL AND
PROCEDURAL IMPEDIMENTS TO WORKING DIRECTLY AND EFFECTIVELY WITH TRIBAL
GOVERNMENTS ON RESERVATION PROGRAMS.
A number of .serious constraints and uncertainties 1n the language
of our statutes and regulations have limited our «b111ty to work directly
and effectively with Tribal Governments on reservation problems. As
impediments in our procedures, regulations or statutes are Identified
which limit our ability to work effectively with Tribes consistent with
this Policy, we will see* to remove those Impediments.
5. THE AGENCY, IN KEEPING WITH THE FEDERAL TRUST RESPONSIBILITY, WILL
ASSURE THAT TRIBAL CONCERNS AND INTERESTS ARE CONSIDERED WHENEVER EPA!S
ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION ENVIRONMENTS.
EPA recognizes that i. trust responsibility derives from the his-
torical relationship between the Federal Government and Indian Tribes
as expressed in certain treaties and Federal Indian Law. In keeping
with that trust responsibility, the Agency will endeavor to protect
the environmental interests of Indian Tribes when carrying out its
responsibilities that may affect the reservations.
6. THE AGENCY WILL ENCOURAGE-COOPERATION BETWEEN TRIBAL, STATE AND
LOCAL GOVERNMENTS TO.RESOLVE ENVIRONMENTAL PROBLEMS OF MUTUAL CONCERN.
Sound environmental planning and management require the cooperation
and mutual consideration of neighboring governments, whether those
"ovefoments M neighboring States, Tribes, or local units of gove.iment.
Accordingly, EPA will encourage early communication and cooperatiOf
among Tribes, States and local governments. This 1s not Intended to
lend Federal support to any one party to the jeopardy of the Interests
of the other. Rather, it recognizes that 1n the field of environmental
regulation, problems are often shared and the principle of comity
between equals and neighbors often serves the best Interests of both.
7. THE AGENCY WILL WORK WITH OTHER FEDERAL AGENCIES WHICH HAVE RELATED
RESPONSIBILITIES ON INDIAN RESERVATION TO ENLIST THEIR INTEREST AND
SUPPORT IN .COOPERATIVE EFFORTS TO HEJ> TR10ES ASSUME ENVIRONMENTAL
.-"OGRAM RESPONSIBILITIES FOR RESERVATIONS.
EPA will.seek and promote cooperation between Federal agencies .to
protect human health and the environment on reservations. We will
work with other agencies to clearly identify and delineate the roles,
responsibilities and relationships of our respective organizations and
to assist Tribes in developing and managing environmental programs fcr
reservation lands.
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8. THE AGENCY HILL STRIVE TO ASSURE COMPLIANCE WITH ENVIRONMENTAL STATUTES
AND REGULATIONS ON INDIAN RESERVATIONS.
In those cases where facilities owned or managed by Tribal Governments
are not In compliance with Federal environmental s'.atutes, EPA will work
cooperatively with Tribal leadership to develop means to achieve compliance,
providing technical support and consultation as necessary -to enable Tribal
facilities to comply. Because of the distinct status'of Indian Tribes and the
complex legal Issues Involved, direct .EPA action through the jud-clal or
administrative process will be considered where the Agency determines, 1n its
judgment, that: (1) a significant threat to human health or the environment
exists, (2) such action would reasonably be expected to achieve effective
results in a timely manner, and (3) the Federal Government -cannot utilize
other alternatives to correct the problem 1n a timely fashion.
!n those cases where reservation facilities are clearly owned or managed
by private parties and there is no substantial Tribal Interest or control
involved, the Agency will endeavor to act in cooperation with the affected
Tribal Government, but will otherwise respond to noncompllance by orivate
parties on Indian reservations as the Acency would to noncomplianc -/ the
private sector el.se*..ere in the country. Wher the Tribe has a substantial
proprietary Interest 1n, or control over, the privately owned or managed
facility, EPA will respond as described in the first paragraph above.
9 THE AGENCY WILL INCORPORATE THESE INDIAN POLICY GOALS INTO ITS PLANNING
AND MANAGEMENT ACTIVITIES, INCLUDING ITS BUDGET, OPERATING GUIDANCE, LEGISLA-
TIVE INITIATIVES, MANAGEMENT ACCOUNTABILITY SYSTEM AND ONGOING POLICY AND
REGULATION DEVELOPMENT PROCESSES.
It 1s a central purpose of this effort to ensure that the principles
of this Policy are t "factively institutionalized by Incorporating them Into
the Agency's ongoing ind lon^-term planning and management processes. Agency
managers will include specific programmatic actions designed to resolve prob-
lems on Indian reservations in the Agency's existing fiscal year and long-term
planning and management processes.
y-
WMliam D. Ruckelshaus
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5"
UNfTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20450
JUL 1 0 1S31
MZHORANDOM
SUBJ-ECT: EPA/State/Tribal Relations
TO:
TX AOMJNISTTUTOR
Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Associate Administrators
staff Office Directors
Earlier this year I shared with you ay views concerning
ZPA's Indian Policy/ its implementation and its future direction.
I would nov like to further emphasize my commitment to the Policy
by endorsing the attached paper that was coordinated by Region
VIII on EPA/State/Tribal Relations.
This paper was prepared to formalize the Agency's role in
. strengthening tribal governments' management of environmental
programs on reservations. The paper notes that the differences
between the interests of tribal and state governments can be very
sensitive and sometimes extend well beyond the specific issues of
environmental protection. It reaffirms the general approach of
the Agency's Indian Policy and recommends the strengthening of
tribal capacity for environmental management. I believe the
Agency should continue its present policy, maJcing every effort to
support cooperation and coordination between tribal and state
governments, while maintaining our commitment to environmental
quality. .
I encourage you to promote tribal management of
environmental programs and 'work toward that goal.
Please distribute this document to states and tribes in your
region.
William K.
Attachment
cc.
Headquarters Program Office Directors
Regional Office Directors
IV-PM-.13
frrata on .
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FEDERAL, TRIBAL AND STATE ROLES IN THE PROTECTION
AND REGULATION OF RESERVATION ENVIRONMENTS
A Concept Paper
I. BACKGROUND
William Reilly, in his first year as EPA Administrator,
reaffirmed the 1.984 EPA Indiar. Policy and its implicit promise to
protect the environment of Indian reservations as effectively as
the Agency protects the environment of the rest of the country.
The EPA Indian Policy is premised on tribal self-determination,
the principle that has been set forth as federal policy by
Presidents Nixon, Reagan, and Bush. Self-determination is the
principle recognizing the primary role of tribal governments in
determining the future course of reservation affairs. Applied to
the environmental arena in the EPA Indian Policy, this principle
looks to tribal governments to manage programs to protect human
health and the environment on Indian reservations.
II. TRIBAL, STATE AND FEDERAL EXPECTATIONS
The Agency is sensitive to the fact that tribal and state
governments have serious and legitimate interests in the
effective control and regulation of pollution sources on Indian
reservations. EPA shares these concerns and, moreover, has a
responsibility to Congress.under the environmental statutes to
assure.that effective and enforceable environmental programs are'
developed to"protect human health and the environment throughout
the nation, including Indian reservations.
Indian tribes, for vhom human welfare is tied closely to the
land, see protection of the reservation environment as essential
to preservation of the reservations themselves. Environmental
degradation is viewed as a form of further destruction of the
remaining reservation land base, and pollution prevention is
viewed as an act of tribal self-preservation that cannot be
entrusted to others. For these reasons, Indian tribes have
insisted that tribal governments be recognized as the proper
governmental entities to determine the future quality of
reservation environments.
IV-PM-14
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State governments, in turn, recognize that the environmental
integrity of entire ecosystems cannot be regulated in isolation."
Pollution in the air and water, even the transportation of
hazardous materials, in everyday commerce, is not restricted to1
political boundaries. Accordingly, state governments claim a
vital interest in assuring that reservation pollution'sources are
effectively regulated and, in many cases, express an interest in
managing reservation environmental programs themselves, at least
for non-Indian sources .located on the reservations. In addition,
some state officials have voiced the concerns of various non-
Indians vho live or conduct business within reservation
boundaries, many of whom believe that their .environmental or
business interests would be better represented by state
government than by the tribal government.
Although the Agency hears these particular concerns
expressed most often through tribal and state representatives,
respectively, the Agency is aware that most of these concerns are
shared by both tribes and states. For example, tribal
governments are not alone in holding the view that future
generations depend on today's leaders to manage the environment
wisely. Many state officials argue the same point with the same
level of conviction as tribal leaders. Conversely, tribal
governments share with states the awareness.that individual
components of whole ecosystems cannot be regulated without regard
to management of the other parts. Tribal governments have also
shovn themselves to share the states' sensitivity to the concerns
and interests of the entire reservation populace, whether these
interests are the interests of Indians or non-Indians. In the
Agency's view, tribes and states do not differ on the importance
of these goals. Where they differ at all, they differ on the
means to achieve them.
EPA fully shares with tribes and states their concerns for
preservation of the reservation as a healthy and viable
environment, for rational and coordinated management of entire
ecosystems, and, thirdly, for environmental management based on
adequate input both from regulated businesses and from the
populace whose health the system is designed to protect.
Moreover, the Agency believes that all of these interests and
goals can be accommodated within the framework of federal Indian
policy goals and federal Indian law.
III. EPA POLICY
The EPA Indian Policy addresses the subject of state and
tribal roles within reservation boundaries as follows:
1) First, consistent with the President's policy, the
Agency supports the principle of Indian self-government:
IV-PM-15
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"In keeping vith the principle of Indian self-government,
the Agency will view Tribal Governments as the appropriate
non-Federal parties for making decisions and carrying out
program responsibilities affecting Indian reservations, .,
their environments, and the health and welfare of the
reservation populace. Just as EPA's deliberations and
activities have traditionally involved the interests and/or
participation of State Governments, EPA will look directly
to Tribal Governments to play this lead role for matters
affecting reservation environments,"
2) Second, the Agency encourages cooperation between state,
tribal and local governments to resolve environmental issues
of mutual concern:
"Sound environmental planning and management require the
cooperation and mutual consideration of neighboring
governments, whether those governments be neighboring
States, Tribes or local units of government. Accordingly,
EPA will encourage early communication and cooperation arr.cng
Tribes, States and local governments. This is not intended
to lend Federal support to any one party to the jeopardy cf
the interests of the other. Rather, it recognizes that in
the field of environmental regulation, problems are often
shared and the principle of comity between equals often
serves the best interests of both."
IV. PRINCIPLES AKD PROCEDURES FOR EPA ACTION
EPA program managers; will be guided by the following
principles and procedures regarding tribal and state roles in the
management of programs to protect reservation environments.
1. The Agency will follow the principles and procedures
set forth in the EPA Policy for t-he Administration of
Environmental Programs on Indian Reservations and. the
accompanying Implementation Guidance, both signed on
November 8, 1984.
2. The Agency vill, in making decisions on program
authorization and other matters where jurisdiction over
reservation pollution sources is critical, apply federal law as
found in the U.S. Constitution, applicable treaties, statutes and
federal Indian law. Consistent with the EPA Indian Policy and
the interests of administrative clarity, the Agency will view
Indian reservations as single administrative units for regulatory
purposes. Hence, as a general rule, the Agency will authorize a
, tribal or state government to manage reservation programs only
l where that government can demonstrate adequate jurisdiction over
Vpoilution sources throughout the reservation. Where, however, a
tribe cannot demonstrate jurisdiction over one or more
IV-PM-16
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reservation sources, the Agency will retain enforcement primacy
for those sources. Until EPA formally authorizes a state or
'tribal program, the Agency retains full responsibility for
program management'.' Where EPA retains such responsibility, it
will carry out its duties in accordance with the principles set
forth in the EPA Indian Policy.
3. Under both authorized and EPA-administered programs for
reservations, the Agency encourages cooperation between tribes
and .states, acting in the spirit of neighbors with a mutual self-
interest in protecting the environmental and the health and
welfare of the reservation populace. Such cooperation can take
many forms, including notification, consultation, sharing of
technical information, expertise and personnel, and. joint
tribal/state programming. While EPA will in all cases be guided
by federal Indian law, EPA Indian Policy and its broad
responsibility to assure effective protection of human health and
the environment, the Agency believes that this framework allows
flexibility for a wide variety of cooperative agreements and
activities, provided that such arrangements are freely negotiated
and mutually agreeable to both tribe and state. The Agency will
not act in such a manner as to force such agreements.
4. The Agency urges states to assist tribes in developing
environmental expertise and program capability. The Agency'has
assisted in funding state environmental programs for two
decades, with the result that, today, state governments have a
very capable and sophisticated institutional infrastructure to
set and enforce environmental standards consistent vith local
state needs and policies. As the country now moves to develop an
Infrastructure of tribal .institutions to achieve the same- goals,
state governments can play a helpful and constructive role in
helping to develop and support strong and effective tribal
institutions. The State of Wisconsin .has worked vith the
Menominee Tribe to develop a joint tribal/state RCRA program that
can serve as a model of mutually -beneficial cooperation- for oth-er
states'and'tribes. ' '
5. The Agency urges tribes to develop an Administrative
Procedures Act (APAJ or other means for public notice and comment
in the tribal rule-making process. Many tribes nov working with
EPA to develop environmental standards and regulatory programs
have already taken the initiative in establishing such techniques
for obtaining community input into tribal decision-making. Such
tribes have enacted APAs and held public meetings to gather input
from both Indian and non-Indian residents of the reservation
prior to setting tribal environmental standards for their
reservations. The Agency generally requires states and tribes to
provide for adequate public participation as a prerequisite for
approval of state or tribal environmental programs. The Agency
believes that public input into major regulatory decisions is an
important part of modern regulatory governance that contributes
IV-PM-17
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significantly to public acceptance and therefore the
effectiveness of regulatory programs. The Agency encourages all
tribes to follow the example of those tribes that have already
enacted an APA. ' ^
6. Where tribal anc State governments, managing regulatory
programs for reservatio-n and state areas, respectively, may
encounter transboundary problems arising from inconsistent
standards, policies, or enforcement activities, EPA encourages
the tribal and state governments to resolve their differences
through negotiation, at the local level. EPA, in such cases, is
prepared to act as a moderator for such discussions, if
requested. Where a statute such as the Clean Water Act
designates a conflict^resolution role for EPA in helping to
resolve tribal/state differences, EPA will act in accordance with
the statute. Otherwise, EPA will respond generally to such
differences in the same manner that EPA responds to differences
between states.
V. CONCLUSION
The Agency believes that where an ecosystem crosses
political boundaries, effective regulation calls for coordination
and cooperation among all governments having a regulatory role
impacting the ecosystem. Many differences among tribes and
states, like differences among states, are a natural outgrowth of
decentralized regulatory programs; these differences are best
resolved locally by tribes and states acting out of mutual
concern for the environment and the health of the affected
populace. EPA actions and decisions made in carrying out its
role and responsibilities vill be consistent with federal law and
the EPA Indian Policy. Within this framework, the Agency is
convinced that the environmental quality of reservation lands can
be protected and.enhanced to the benefit of all.
IV-PM-18
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UNITED STATES ENVIRC
WASHINGTON, D.C. 20460
JUL 1
OFFICEOF
THE ADMINISTRATOR
MEMORANDUM
SUBJECT: Announcement of Actions for Strengthening EPA's Tribal Operations
TO: Assistant Administrators .. ..
General Counsel
Inspector General
Associate Administrators
Regional Administrators
Staff Office Directors
Over the last five months a team of Senior EPA managers and a workgroup of EPA staff
have been working to identify ways to strengthen Tribal operations throughout the Agency. I
would like to thank those who worked on the team for your time and valuable contributions.
thanks also to all of you for your support for improving EPA's Indian program and increasing the
Agency's ability to assist Tribes in the development and implementation of their environmental
protection programs. . '
Attached is a document outlining steps we should implement promptly throughout the
Agency. Although many of you are already working to improve specific areas of Tribal
operations, additional steps are needed to address critical gaps in Tribal environmental protection
and to improve bur government-to-government partnership with Tribes. We can make significant
progress within the next year, while continuing to search for additional opportunities to
strengthen EPA's Indian, program. When our new Office of Indian Affairs begins operation this
fall, it will assist in carrying out this action agenda, as well as. developing, coordinating and
promoting broad, longer-term activities for Tribal environmental protection.
I ask each of you to continue to make this effort a high priority.
Carol M. Browner
Attachments
Jtocyded/Recydabto
Printed wttiSor/CtnoUk* on papwttut /
conUUM«lMt($o* recycled fiber / /
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TRIBAL OPERATIONS ACTION MEMORANDUM
July 12,1994
To help improve communications and understanding between EPA and Tribes,
Administrator Browner has established a new EPA/Tribal Operations Committee (TOC), which
Includes 18 Tribal representatives.. At the Committee's first meeting, on February 17, 1994, the
Administrator, in order to respond to Tribal recommendations, authorized a group of senior
managers from EPA Headquarters and Regions to develop recommendations, in consultation with
the Tribal members of the TOCi on ways to strengthen EPA's Tribal environmental programs and
. daily operations, pursuant to'the implementation of the 1984 Indian Policy. This team of EPA
managers has worked on a variety of issues over the last five months.
On May 26, 1994, at the Second National Tribal Conference oh Environmental
Management in Cherokee, North Carolina,'Administrator Browner announced her intent to create
a new Office of Indian Affairs and set October 1994, as the target date for it to begin operations.
Although this Office will have the lead for coordinating certain activities, most of the '
responsibility for developing and implementing Tribal environmental protection programs will
remain with the Regions and Headquarters Program Offices. Therefore, we need not wait until
the establishment of the Office to promptly begin the implementation of the following actions.
The following action items are intended to strengthen EPA's Indian program by
supplementing current activities. Although a Federal Register notice will invite public review and
comment on the functions of the new Office of Indian Affairs (some of which are similar to the
actions described below), EPA need not delay its efforts to strengthen Tribal operations. The
public may have additional ideas about actions we should take and there may be refinements in
our thinking. However, consultation with the Tribal Operations Committee members and
responses received to a mailing to Tribal Leaders in June suggest we are generally on the right
track.
Recognizing that many of these actions are new or were not previously identified as
priorities, each Assistant and Regional! Administrator will need to make some difficult resource
allocation decisions to provide the necessary people and resources to begin to meet the challenge
of strengthening EPA's Tribal operations. Each Assistant and Regional Administrator, hi
proceeding in the implementation of the following actions, would benefit greatly from the
experience and working knowledge of the Headquarters Program and Regional Indian
Coordinators (the National Indian Work Group) and from consultation with the Tribal
representatives to the Tribal Operations Committee. These individuals have a great deal of
information on Tribal needs and priorities.
In order to document and measure the Agency's progress and successes on strengthening
the implementation of Tribal environmental protection and to facilitate early feedback on that
progress, each Assistant and Regional Administrator will be asked to report, within 6 months
from the issuance of this memorandum, to the Administrator on the status of his/her
implementation efforts.
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.V
1) Tribal Environmental Workplans: In order for EPA and Tribes to plan for and respond
effectively to Tribal environmental problems, the Agency and Tribes need to establish a
base description of the types of environmental problems and priorities Tribes -face and then
formulate specific workplans for responding to the problems. To facilitate and support
such a cooperative EPA/Tribal effort, each Regional Administrator should promptly begin
to work with Tribes to develop environmental workplans, to include the Tribes', plans to
manage authorized environmental programs and/or their need for federal technical
assistance, education and implementation and management of environmental protection.
Each Regional Administrator has the flexibility to determine, in consultation with Tribes,
the most appropriate way to develop these workplans.
2) EPA Regional and Program Indian Workplans: To focus and facilitate Program and.
Regional efforts for effective Tribal environmental protection, each Assistant and Regional
Administrator should begin to establish strategies for achieving the goals outlined in the .
Tribal environmental workplans. These Workplans should include the specific program
implementation and management activities, technical assistance and education that will be
undertaken by each Region and National Program Office. While these plans should
address the problems identified in the Tribal workplans, they may be developed at the
same time, in close consultation with the Tribal plans, so as to ensure the completion of
Regional and National Program plans prior to the FY 1997 budget development process.
The plans may be flexible and allow for future revisions as more is learned about the
Tribes' environmental problems and priorities.
3) EPA Implementation, Management and Compliance Activities: In response to
concerns that numerous gaps may exist in Tribal environmental protection, each Assistant
and Regional Administrator, in close consultation with Tribes, should take immediate
steps to increase implementation and management of and ensure compliance with
environmental programs. Although the Agency should encourage Tribal implementation
and management, where such Tribal environmental programs do not exist, the Agency, in
carrying out its statutory and trust responsibilities, must work, in partnership with Tribes,
on a government to government basis, to ensure the protection of Tribal human health,
natural resources and environments. Although EPA retains final authority over and
responsibility for its actions, the EPA Indian Policy recognizes Tribal governments as the
most appropriate authority for managing Tribal environments and the Agency should
accord great deference to Tribal priorities and environmental goals when carrying out
these activities.
4} Program and Regional Organization: To strengthen the Indian program within the
Regions and Headquarters Program Offices and to ensure greater consistency in the work
performed by those offices, each Assistant and Regional Administrator should begin to
review and, where necessary, modify the organization and/or management of the Indian
program within his/her office. Each Region and Program Office has different
responsibilities and/or workloads for Tribal operations and, therefore, some may require
more resources than others. However, at a minimum, each Assistant and Regional
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Administrator with responsibilities for Tribal activities should consider assigning a
professional, full-time, to serve as Indian Coordinator, and report back to the new Office
on status of this position. The Indian Coordinators must have the necessary procedures
and support to assure full and effective communication with program staff throughout the
organization. In addition, each Assistant and Regional Administrator should begin to
address any need for additional staff to carry out critical activities related to the Agency's
Indian program. '
5) Field Assistance for Tribes: In order to supply the necessary assistance to Tribes for
program development, authorization, operation and/or management, and to work with the
Tribes to determine EPA implementation and management responsibilities, each Regional
Administrator should ensure that there is an effective EPA/Tribal liaison capacity (ie.
Indian Environmental Liaisons or other appropriate EPA field presence), to provide direct
field assistance to the Tribes As much as possible, this capacity should be carried out by
staff from Indian Country and who have experience in the environmental field working
with Tribal governments, communities, organizations and/or environmental staff-
6) Training of EPA Staff: It is important that EPA employees have the necessary
sensitivity, knowledge and understanding of Indian affairs to facilitate communication
between EPA and Tribal representatives. The Office of Indian Affairs, once established,
will promote and coordinate training on Indian issues for Agency managers and staff. In
the interim, Assistantjand Regional Administrators are encouraged to provide training that
moves the Agency in the direction of better understanding of Indian issues. This training
could cover the EPA Indian Policy, EPA's Indian program activities, Tribal sovereignty
and jurisdiction. Tribal environmental needs and activities, the role of Tribal individuals
and organizations and cultural differences that may affect EPA's working relationship with
Tribes.
7) Communication with Tribes: To promote and facilitate communication between EPA
and Tribal governments, pursuant to the 1984 Indian Policy and Executive"Order 128,75,
and between EPA and Tribal members and/or organizations, in keeping with the spirit of
Environmental Justice, Assistant and Regional Administrators should include Tribes, in
decision-making and program management activities that affect them. Communication
and requests for Tribal input should occur early in any Agency process that may affect
Tribes and full consideration should be given to the policies, priorities and concerns of the
affected Tribe(s) and/or, where appropriate, affected Tribal members.
8) Grant Flexibility and Streamlining: Given that most Tribes have a small environmental
staff (if any) to manage various program-specific grants, in order to increase the efficient
use of limited resources, each Assistant and Regional Administrator should, to the extent
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allowed by law, .use available discretion to consolidate issuance and administration of
grants to Tribes and allow for both program operation and program develppment1
9) Resource Investment in Tribal Operations: Some encouraging first steps have already
been taken to increase resources for Tribal operations in the FY,t99$ budget. High
priority was established for increasing support for Tribal operations at the Annual Planning
meeting in April. However, to begin immediately strengthening the Indian program and to
implement the new activities outlined in this memorandum, resources must be invested in
FY 1994 and FY 1995 for: 1) staff assistance in the development of Tribal environmental
workplans (FTE and travel); 2) Tribal capacity building, environmental program
development, authorization and management (primarily grant funding); 3) EPA
implementation and management activities (FTE, travel and AC&C support); and 4)
technical assistance and related support, as needed by the Tribes (FTE; travel and AC&C
support). These additional investments, will require a shift in Headquarters Program and
Regional priorities to place greater emphasis on Tribal operations. Recognizing that we
cannot immediately resolve all problems or address all Tribal environmental needs," each
Assistant and Regional Administrator should allocate resources within their discretion and
authority to constitute a significant commitment to strengthening Tribal environmental
protection.
1 While recognizing that the primary objective of the General Assistance Program (GAP)
is to develop Tribal environmental capacity, the new Office of Indian Affairs will be asked to
consider using, to the extent allowed by law, any flexibility in the current GAP for program
implementation, where funding such implementation would be impractical on a program by
program basis. In consultation with Assistant and Regional Administrators, the Office will
consider whether EPA should support statutory changes in granting authorities to create more
opportunities for Tribal block grants and to explicitly allow for the use of GAP, where practical,
for program implementation. However, even if the use of GAP is expanded, program-specific
funding and responsibility for technical assistance, implementation, management or other related
activities would still need to continue and also expand.
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HEMORANDOM OF UNDERSTANDING
AMONG THE
BUREAU OF INDIAN AFFAIRS
ENVIRONMENTAL PROTECTION AGENCY
HOUSING & URBAN DEVELOPMENT
copy
INDIAN HEALTH SERVICE
I. Statement of Purpose
. The Bureau of Indian Affairs (BIA), the Environmental
Protection Agency (EPA)," the Department of Housing & Urban
Development (HUD) and the Indian Health Service (IHS), all have
responsibilities and interests pertaining to the protection of the
environment and human health as it relates to pollution control on
Indian lands. It is the purpose of this Memorandum of
Understanding (MOU) to identify areas of mutual interest and
responsibility of the four agencies and to encourage the
coordination of the agencies' respective activities to promote the
most efficient and integrated utilization of resources. It is
anticipated that the Regional and Area Offices of the respective
r
signatory agencies may desire to develop more specific MOUs
pursuant to the general agreements established in this document
II. Findings
A. Scope of Respective.Authorities
All of the agencies have interest in the effects on human
health and the environment from pollutants. As a result, each
agency conducts or supports environmental health activities in one
or more of the following areas:
Air Quality Management
Radiation Hazard Identification and Mitigation
Water Quality and Critical Habitat Management
Surface Water, Ground Water & Drinking Water Protection
Underground Storage Tanks
Hazardous Materials Management, Emergency Response and
Community Right-to-Know
Solid Waste Management
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Pesticides & Toxic Substance Use and Management and Endangered
Species Protection
8. Description of Agency Mission
(It is to be noted that BIA, HUD, and IH8 are neither
regulatory nor enforcement agencies on environmental matters
while EPA is.)
1. BIA's programs are associated with Indian trust resources
and include environmental quality through the authority of the
trust, and the National Environmental Policy Act of 1969, which
establishes procedures that are binding on all Federal agencies.
The primary requirement is that an Environmental Impact Statement
(EIS) be prepared for every major Federal action significantly
affecting the quality of the human environment. BIA must also
apply the Council on Environmental Quality's (CEQ) regulations and
the Department of the Interior's implementation procedures. BIA
is responsible for assuring that all of its projects comply with
all applicable statutes, whether or not projects are Federally
initiated or EPA has enforcement authority. BIA must also comply
with all laws related to cultural resources and. threatened and
endangered.species.
2. EPA has regulatory and enforcement authority on Indian
reservations and authority to expend financial resources on Indian
lands under various environmental statues. Statutes authorizing
EPA actions on Indian lands include the Clean Air Act (CAA), Clean
Water Act (CWA), the Emergency Planning and Community Right to Know
Act (EPCRA), Federal Insecticide, Fungicide and Rodenticide Act
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(FIFRA), Resource Conservation and Recovery Act (RCRA), Safe
Drinking Water Act (SDWA), Comprehensive Environmental Response,
*
compensation, and Liability Act (CERCIA) as amended, and the Toxic
t
Substances Control Act (TSCA). EPA expects that the Clean Air Act
will be amended in 1990 to include authority to treat tribes as
states for air quality purposes and to authorize the Administrator
to promulgate rules implementing this authority. EPA will either
retain its appropriate environmental management authorities or
authorize Tribal governments on Indian lands to administer their
own regulatory programs on a case by case basis depending upon the
language of the particular statute and tribal capability with
appropriate consideration for the special needs of tribal
governments. The programs will be operated.in a manner consistent
with the provisions of the EPA Indian Policy and Implementation
Guidance which were issued on November 8, 1984. EPA is also
responsible for NEPA compliance for its projects on Indian lands.
3. HUD provides financial and technical assistance, under the
United States Housing Act of 1937 as amended, in the development
and management of low income housing in Indian and Alaska Native
areas. This includes funding for appropriate sanitation facilities
for HUD assisted housing projects. HUD conducts a Community
Development Block Grant (CDBG) program which is available to
tribes. For its projects on Indian lands, HUD insures the
compliance of Indian Housing Authority (IHA) with all requirements
of NEPA, Section 1091 of the Stuart B. McKinney, Homeless
Assistance Amendments Act, the Clean Water Act, and the
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requirements to ban lead in water plumbing and distribution pipes
contained in the Safe Drinking Water Act.
4. IHS has the primary responsibility for improving the
i
health of and preventing disease and injuries among the American
Indian and Alaska Native population through the development and
implementation of a comprehensive environmental health program on
Indian lands. The Division of Environmental Health (DEH) of the
IHS conducts activities dealing with air pollution, community
injury prevention, emergency operations, epidemiology, food
protection, hazardous materials, home and community health,
institutional environmental health, occupational health, operation
and maintenance assistance, radiation, recreational sanitation,
safety, vector control,, waste disposal (including solid waste) , and
water supply. These activities include surveys, technical
assistance, investigations, sampling, training, control and
construction. The DEH may carry out these activities directly, or
the tribes may undertake them with the assistance of IHS, under the
Indian Self-Determination Act, P.L. 93-638 as amended. The purpose
of the IHS Sanitation Facilities Construction Program (authorized
by P.L. 86-121, the Indian Sanitation Facilities Act and reaffirmed
by P.L.100-713, the Indian Health Care Amendments of 1988) is to
take direct action to provide sanitation facilities that improve
the health status of Native Americans. These facilities can
include water supply, sewage treatment or solid waste management
systems. IHS does not operate or maintain community water, sewage
or solid waste facilities, but provides training and technical
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assistance and may provide the necessary equipment in conjunction
with new facilities or major renovation projects for Indian tribes
to perform these activities. IHS prepares NEPA compliance
»
documents for its projects on Indian lands.
C. Areas of Primary Mutual Interest
Listed below are specific program areas of special interest
to BIA, EPA, HUD and IHS. General responsibilities are outlined
under each area.
1. Air Quality Management
a. BIA - Technical Assistance, Coordination with
EPA/Tribes
Provides some funding for Air Monitoring
b. EPA - Provides technical assistance and training
for planning and management activities
- Provides monitoring and assessment of air
quality on Indian lands
Provides Section 105 (Clean Air Act) grant
assistance to tribes and demonstration grants
for Indoor Radon Abatement
Provides assistance in implementing the
Prevention of Significant Deterioration on
Indian Lands
c. HUD - IHA Compliance with Tribal or Local
Construction Standards which Includes
Assuring Wood or Coal Stoves Meet Appropriate
Air Quality Standards
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d. IHS - Investigation of Potential Health Problems,
Monitoring, Technical Assistance, Compliance
with Local Construction Standards
i
e. Potential overlap
Technical Assistance (BIA, EPA, IHS)
Monitoring (EPA, IHS, BIA)
2. Radiation Hazard Identification and Mitigation
a. BIA - Technical Assistance, Coordination with
EPA/Tribes, Monitors Radionuclides in BIA
Operated Systems, Considers Potential
Problems such as Radon in Home Design
Conducts Studies in accordance with the Radon
Abatement Act of 1988
b. EPA - Tribes may be Included in the National
Household Radon Survey
May Provide Canisters &-Technical
Assistance for Tribes or IHS to Conduct Radon
Surveys As Resources Permit
Provides. Consultation on Appropriate Radon
Remediation Activities
Provides Assistance in Monitoring of
Radionuclides in Water and Radioactive
Releases in General
Provides Training to Tribes and other
agencies in Radon Remediation
Provides Technical Assistance and -
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Consultation on Releases of Radioactive
materials
c. HUD - Considers EPA/IHS Recommendations for Site
>
Approval
Considers EPA/IHS Recommendations on Radon.
Develops a Policy Based on EPA Guidelines to
Prevent Harm to Human Health from Radon
Exposure
d. IHS - Assistance in Radon Surveys of Homes on
Reservations
Provides Technical Assistance on All
Radiation Issues
Conducts Surveys of IHS owned facilities in
accordance with the Radon Abatement Act of
1988
- Assistance in Monitoring of Natural Radiation
Sources
Performs Compliance Testing of Radiation
Equipment in Health Care Facilities
Provides Training
Assists Tribes in initial Monitoring of
Radionuclides in Water
e. Potential Overlap
Technical Assistance (BIA, EPA, IHS)
Radon Surveys (EPA, IHS)
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Radon Abatement Surveys (BIA, IMS)
Monitor Radionuclides in Water (EPA, IKS,
BIA)
* k
3. Water Quality and Critical Habitat Management
Water Supply Systems, Waste Water
Treatment, Surface Water, Groundwater and
Drinking Water Protection and Critical
Habitat Management
a. BIA -
General Activities
Sampling, Testing and Monitoring of Surface
Water and Ground Water for Water
Quantification Studies, for Uses Including
Livestock, Wildlife, Instream Flow,
Municipal, Industrial Recreation, Religious,
Cultural and Diversionary Trespass Issues
Operation and Maintenance (O&M) for BIA
Facilities
WSS and WWT for BIA School/Agency Facilities
Provides Training to Tribes for Water
Management
- Provides Technical Assistance and
Consultation on Tribal Jurisdictional Issues
Safe Drinking Water Act
Inventory and Maintenance of Water Supplies
for BIA School/Facilities
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Coordinate with EPA and other Agencies on
Underground Injection Control Direct
Implementation Programs
. >
Clean Water Act
Technical Assistance to Tribes in Defining
a Scope of Work as Part of an Application for
EPA 106 Funds
Assists Tribes in Obtaining EPA Section 402
and 404 Permits
Develops Best Management Practices (BMPs) for
Control of Non-Point Source Pollution on
Trust Lands
b. EPA -
General Activities
Assist Tribes in Developing Tribal Capacity
to Regulate
Direct Implementation for Tribes not Meeting
Statutory Requirements for Treatment as a
State or not Seeking Authorization to
Implement EPA Programs in -Balance with other
Agency Priorities
Training of Tribal Staff in Water Quality
Monitoring Procedures
Maintenance of Ground Water and Surface Water
Quality Data
Provide Funds for Demonstration Projects
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Safe Drinking. Water Act
Regulates Public Water Systems (PWS) or
. . authorizes Tribes Treated as States to Assume
i
Primary Enforcement Responsibility and can
Provide Tribal Grants to Tribes Treated as
States
Sole Source Aquifer Protection
Underground Injection control Program
Implementation: Authorizes Tribes Treated
as states to Assure Primary Enforcement
Responsibility and Can Provide Tribal Grants
to Tribes Treated as States
Well Head Protection
Works With Tribes in Developing Safe Drinking
Water Programs
Clean Water Act
National Pollutant Discharge Elimination
System (NPDES) Permits
Clean Lakes Programs
Enforcement & Regulation of Surface Water
Standards
Wetlands Protection
Section 401 Permit and License Certification
Non-Point Source Pollution Prevention
Works with Tribes in the Development of
Tribal Water Quality Programs and Authorizes
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Tribes Treated as States to Carry out
Appropriate Functions
*
_- Award Tribes Treated as States 106 Water
*
Quality Management Grants
Waste Water Treatment System Construction
Grants
c. HUD -
General Activities
Funds On-Site Sanitation Systems for HUD
Assisted Housing Through Housing Authorities
Water and Sewage Project Funding through CDBG
Program
Provides Funds to IHS under Agreement
with HUD and the Housing Authorities for
Construction of Off-site Sanitation
Facilities Which May Include Equipment for
Operation and Maintenance Activities
Bans Lead in Water and Distribution Pipes,
Solder and Flux in HUD Assisted Property
- Requires Funded Housing Projects to comply
with Wetlands Provisions of the Clean Water
Act
d. IHS -
General Activities
Off-site Sanitation Facilities
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Construction for HUD Hones
Construction of Sanitation Facilities for
«
BIA Housing Improvement Program (HIP),
>
Tribally Funded Programs, and Existing Homes
(On and Off-Site Facilities)
Well Construction
Technical Assistance for On-site Water and
Sewer Facilities
Assist Tribes in Obtaining EPA Permits
Technical Assistance to Tribes to Address
Provisions of SDWA & CWA
Training of Homeowners
Conducts Special Studies Such as Utility Rate
Studies
Provides Technical Assistance in the
Establishment of 0 & M Organizations, As Well
As, Equipment and Tools for O&M
Surveys of Indian and BIA Water and Waste
Water Systems
- Maintenance of Data System for Sanitation
Facilities
Safe Drinking water Act
Design and Construction of Drinking Water
Facilities, Distribution and Storage
Facilities for Domestic Use
Training of Tribal Staff in Operation and
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Maintenance of Sanitation Facilities
C^ean Water Act
4
- Design and Construct Waste Water Collection,
v
Treatment and Disposal Facilities for
Domestic Use
.- Training of Tribal Staff in O&M of Sanitation
Facilities
e. Potential Overlap
Water Quality Testing as Appropriate or
Required (BIA, EPA, IHS)
Funding Wastewater Facilities (EPA, HUD,
IHS,)
Funding of Domestic Drinking Water Facilities
(HUD, IHS)
Assistance in Obtaining Additional Sources
of Funding (BIA, EPA, IHS)
Technical Assistance to Address Provisions
of SDWA and CWA (BIA, EPA, IHS)
- Assist Tribes in Obtaining EPA Section 402
and 404 Permits (BIA, EPA, IHS)
Assist Tribes in Identifying BMPs for
Protection of Water Quality/Water
Supplies (BIA, EPA, IHS)
Critical Habitat Management (BIA, EPA)
Maintenance of Water Quality Data
(BIA, EPA, IHS)
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Assist Tribes in Applying for EPA Grant
Programs (BIA, EPA, IHS)
*
4. Underground Storage Tanks
a. BIA - Inventory Underground Storage Tanks (UST)
Owned or operated by BIA
Monitoring of EPA's UST Pilot Projects
b. EPA - Implement Subtitle I of RCRA
Leaking Underground Storage Tank Trust Fund
Supported Enforcement and Corrective Action
Activities
c. HUD - None
d. IHS - Inventory of UST Owned or operated by IHS
Monitor EPA's UST Pilot Projects and UST
Corrective Actions (with EPA and Tribes)
e. Potential Overlap
Inventory of UST's (BIA, EPA, IHS)
Monitoring of EPA's UST Pilot Projects and
UST Corrective Actions (BIA, EPA, IHS)
5. Hazardous Materials Management, Emergency Response and Community
Right-to-Know ...
a. BIA
b. EPA -
Technical Assistance, Surveys, Testing,
Monitoring, Facilitate Non-National Priority
List (NPL) Cleanup, Emergency Response
Enforcement:, NPL Cleanups, Emergency
Response, Pre-remedial Evaluation,
Cooperative Agreements with Tribes, Technical
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Assistance
- Delegation of Hazardous Waste Programs to
- - Qualified Tribes
>
Training of Tribal Staff
Provides Technical Assistance to Tribes
Including Consultation Concerning the
Development of Tribal Implementation of the
Emergency Planning and Community Right to
Know Act.
Conducts Community Relations Activities at
Superfund Sites
c. HUD - Require the Indian Housing Authority, Their
Contractors and Agents on HUD Assisted
Housing Projects to Comply with Local
Standards Which Could Include Disposal of
Some Hazardous Materials
d. IHS - Technical Assistance
Surveys & Testing
Emergency Response which is Limited to such
Activities as Identification, some
Monitoring, Surveillance, etc.
Identifying and Monitoring Hazardous Waste
Streams in Health Care Facilities Including
Infectious Waste Disposal
Training of IHS and Tribal Staff Regarding
Hazardous Materials, Including the Community
15
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and Worker Right-To-Know Laws
e. Potential Overlap
- - Technical Assistance (BIA, EPA, IHS)
»
Testing and Site Assessment (BIA, EPA, IHS)
Emergency Response (BIA, EPA, IHS)
Cooperation on Operation and Maintenance of
Superfund Remedies (BIA, EPA, IHS)
6. Solid Waste Management
a. BIA - Technical Assistance to Tribes (usually
tribally owned and operated facilities)
Operates Sites at Some BIA Facilities
b. EPA - Sets National Standards for Sanitary
Landfills Design and Operation
Technical Assistance and Training
Technical Assistance on Solid Waste
Management
Technical Assistance on Solid Waste Program
and Regulation Development
Limited Grant Support for Tribal Solid
Waste Management Planning
c. HUD - Solid Waste Project Funding Through Community
Development Block Grants
Funding for Pro Rata Share of Solid Waste
Facilities to Serve HUD Assisted Housing
Projects
d. IHS - Assists Tribes in Development of Solid Waste
16
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Management Plans
Provides Funding as Resources Permit for
«
. . Solid Waste Projects
t
Assists Tribes in Identifying and Obtaining
Funds from other sources
Surveys of Solid Waste Disposal Sites
Including BIA Operated Sites
Surveys of Solid Waste Management Needs
Training and Technical Assistance in the
Operation of Solid Waste Management Projects
e. Potential Overlap
Technical Assistance (BIA, EPA, IHS)
Solid Waste Management Plan Assistance (BIA,
EPA, IHS)
Funding of Solid Waste Projects (HUD, IHS)
7. Pesticides & Toxic Substance Use and Management
a. BIA - Approvals for the use of Restricted Use
Pesticides, Training of Pesticide
Applicators, Review of Pesticide Use
Patterns, and Ensure Protection of Endangered
Species
Asbestos Surveys and Remedial Action in BIA
School
b. EPA - Regulation of Pesticides and Chemical
Substances
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Cooperative Agreements Grants to Qualified
Indian Organizations and Individual Tribes
- where Required Authorities Exist for
>
Enforcement and Pesticide Applicator
Certification
Grants to Remove Asbestos from Indian
Schools
Training for Enforcement Inspectors
Endangered Species Protection Compliance,
Groundwater Protection, and Agricultural
Worker Protection
c. HUD - Require IHA to comply with Lead-Based Paint
Hazard Elimination Rule of June 6, 1988 and
Section 1088 of the McKinney Amendments Act
of 1988
d. IBS - Asbestos Monitoring in IHS and Tribal
Facilities as Appropriate
Remedial Action in IHS Facilities
Technical Assistance Regarding Pesticide
Usage and Disposal and Endangered Species
Protection
e. Potential Overlap
Asbestos (BIA, EPA, IHS)
Pesticides (BIA, EPA}
Endangered Species Protection Groundwater
Protection, Worker Protection (EPA, BIA, IHS)
18
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III. jTnteracrency Actions
*
The following actions are agreed to:
>
l. BIA, EPA, HUD, and IHS will work cooperatively with each other
at Headquarters and in the Regions/Areas, and in close
consultation with tribal governments, to coordinate
environmental programs affecting Indian lands. Where
applicable, and within the constraints of available resources,
each agency will:
a. Participate in headquarters, regional and local level
information exchanges to keep abreast of the other
agencies' program activities and regulations and notify
other agencies of its own program activities, regulations
and future plans.
b. Cooperate in providing program services to tribal
governments.
c. Provide training and technical assistance to each other
and to Tribal representatives in the area of each.
agency's special expertise.
d. Collaborate on overlapping responsibilities.
e. Coordinate to the greatest extent possible and integrate
where feasible, the provision of funding assistance to
tribal governments, where the funding authorities of the
four agencies are combined or complementary'
2. BIA, EPA, HUD, and IHS will continue to identify and develop
19
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3.
coordination in these areas of environmental protection.
Supplemental agreements or actions specific to program
coordination in each of the above areas may be prepared, as
\
appropriate. Potential overlap areas may be addressed at the
area/region or headquarters levels.
BIA, EPA, HUD, and IHS will encourage and educate their staffs
in the use and implementation of the terms of this MOU. Where
applicable, tribal and/or state agencies may be included as
signatories to supplemental agreements.
IV. Duration of Agreement
This MOU shall continue in effect until BIA, EPA, HUD or IHS
provides written notice of termination. Notice shall be given to
the other parties at least thirty (30) days in advance of the
termination date. This document may be updated and periodically
amended with the concurrence of all parties. This document does
not cancel any previous MOUs or Agreements.
V. Reports
No routine reports are required. However, quarterly meetings
will be called by BIA at headquarters and held among the parties
to discuss implementation of this MOU. Additional meetings may be
called as necessary by any signatory agency. Minutes will be taken
and distributed. Where appropriate, BIA may also call quarterly
meetings at the Area/Regional where all parties are in agreement
20
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that such meeting* would be beneficial. Minutes of those meetings
will also be taken.
ecretary - Indian Affairs
NOV
KN ,' 5 JS9I
Deputy Admi
- Environmental Protection Agency Date
V. Assistant
Se
c and Indian Housing
//D
irector, Indian Health Service
Assistant Secretary for Community Planning
and Development
Date
Date
21
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 20 1395
OFFICE OF
WATER
MEMORANDUM
SUBJECT: Final E£A/Tribal Agreements Template
' ' .£«-*; /- i,tJM^>r
FROM: Terry Williams, Director --*
American Indian Environmental Office
TO: 'Assistant Administrators
Regional Administrators
General Counsel
Regional Counsel
The attached EPA/Tribal Agreement Template was developed in
response to the Administrator's July 14, 1994 Tribal Operations
Action Memorandum which called for the establishment of workplans
between the Regions and Tribes. These "workplans11 are now
referred to as "Agreements" in part * to reflect the need for
development by partnership, flexibility and revisitation.
The Template was developed due to many comments that a
general framework was needed to provided a common set of
principles and consistent factors to include in the Agreements.
Discussions held at the last National Indian Workgroup meeting,
attended by EPA Headquarters, Regional and Tribal representatives
to the Tribal Operations Committee, were the basis of an initial
draft. A review period was held on that draft and comments have
been addressed in the final document.
Regions have been asked to submit schedules and proposed
approaches for completing these Agreements. For this reason, as
well as to promote flexibility, we do not establish a due date in
this Template for completing the Agreements.
Tribes have raised concerns that the Agreements must be
established respecting their sovereignty and legal status. I
believe that these types of concerns should be addressed on an
individual basis in the Agreements with language worked out
directly between the Regional Administrators and the Tribes.
SO* racycMd (Mr
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I believe these Agreements are a critical next step to
further developing environmental protection in Indian country.
It is our hope that the attached Template will assist both EPA
and the Tribes in developing Agreements that effectively evaluate
the need for Tribal program development in a consistent manner as
well as that provide a benchmark against which to measure
progress over time.
If my office can be of further assistance, please do not
hesitate to call me at (202) 260-7939 or staff can call Caren
Rothstein at (202) 260-9872.
cc: National Indian Workgroup Members
Headquarters Indian Workgroup Members
Tribal Operations Committee Tribal representatives
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TEMPLATE FOR EPA/TRIBAL ENVIRONMENTAL AGREEMENTS
March 17, 1995
PREAMBLE/INTRODUCTION
On July 14, 1994, the EPA Administrator issued an
Action Directive to the Agency which called for prompt
action under nine specific areas that would enhance Tribal
environmental operations. One such area was the development
of Tribal specific "workplans11 to be established between the
Regions and the Tribes. These plans were to allow for
maximum flexibility so that Tribal specific needs could be
accommodated. During initial deliberations on how to move
forward with these plans, it was decided that rather than
being "workplans" these were more appropriately defined as
11 Agreements" .
Further, in order to promote consistency between the
various Regional approaches, the following Template was
developed as a tool for establishing Agreements. The
Template was developed based on discussions between EPA and
Tribal representatives to the Tribal Operations Committee.
EPA/TRIBAL AGREEMENT -- TEMPLATE
-- - The- following- Agreement entered into by EPA .and . (Name-_.
of Tribe). is intended to serve as a planning tool which can
clearly identify the Tribe's environmental objectives,
expected outcomes, expectations for resources, as well as,
implementation and management assistance from EPA. This
Agreement should establish the Tribes environmental
objectives.over the -next 3-4 years, but should be viewed as
.a flexible document that can be changed to meet Tribal need.
It will be revisited periodically to keep it current, expand
it into the future and to review progress.
'PURPOSE FOR ESTABLISHING EPA/TRIBAL AGREEMENTS
1. To promote strong environmental protection in Indian
country including Alaska Native lands.
2 . To implement the Agency policy which promotes a
government-to-government relationship and recognition
of Tribal sovereignty in environmental protection of
treaty resources.
3 . To provide an understanding of Tribal environmental
need and to identify the areas under which each Tribe
intends to assume program responsibility. {Help address
jurisdictional issues.)
1 -
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4. To cooperatively develop, implement, and maintain
comprehensive Tribal environmental programs that
include a full range of environmental programs.
5. To build.environmental capacity.in order for Tribes to
operate programs over the long run.
6. To identify areas where EPA will need to plan for and
carry out direct implementation.
7. To include Tribes in Agency planning while addressing
specific Tribal problems and other matters of concern
to Tribes. .
8. To build equal partnerships and work collectively as
Tribes establish priorities for environmental
protection.
9. To enhance and foster communications between EPA and
the Tribes and cc clarify expectations.
GUIDING PRINCIPLES
In establishing this Agreement the following principles
are agreed to-.
1. As these Agreements are developed, all principles
included in the Agency's' Indian Policy shall apply.
This includes recognition of a trust responsibility for
environmental protection, government-to-government
relationship, and Tribal sovereignty.
2. The Government-to-Government Relationship shall be
directly between EPA and 'Name of Tribe.1
3. The Agreement shall be implemented to promote stability
in funding, employment, capacity building,
infrastructure development and other such factors that
lead to long-term program implementation 'for the
Tribe. ' .
4. . These Agreements are being developed with the
understanding that the long-term goal is to address,
implement and maintain, where deemed necessary by the
Tribe, the full range of EPA's activities and programs.
5. While implementing this Agreement, the Agency is
committed to on-going, timely and open communications
with the Tribe. All efforts will be made to provide
timely advice on available grants and other sources of
available funding, training and on-going meetings that
affect Tribes.
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This also includes a timely transfer of state of the
art technology as the Tribe seeks to .build capacity.
6. This Agreement is intended to promote flexibility while
addressing the needs of the Tribe and can be revisited
as appropriate to ensure common sense approaches,
7. The principles of environmental justice shall apply to
this Agreement. In general these principles call for
the Agency to assure that Tribes are afforded all of
the opportunities afforded States, including procedures
for Tribal participation into Agency decision making.
In addition, environmental justice principles call for
a recognition of Tribal cultural -concerns -.such-=as
subsistence needs and traditional uses of natural
resources.
GENERAL AGREEMENT ON REGIONWIDE TRIBAL ISSUES
The following factors have been identified as issues
that all Regions are experiencing and a Regional approach is
need to address them in this Agreement:
1. Emergency response;
2. Grant flexibility;
3. Process for communication;
4. A method for' monitoring progress; _. ... .-.._..- __.-._,
5. Resolution of issues that a^ise where State and/or
Tribes have not demonstrated adequate jurisdiction; and
6. Language to ensure that the trust responsibility is
adhered to.
PLANNING AND BUDGET CYCLES
1. Identify resources needed from EPA in an aggregated
format including: dollars, workyears, travel, (include
a menu of resources.)
2. Identify schedule for submitting grant applications and
other such planning information.
3 . Identify how stable source of funding will be provided
including resources from EPA and from the Tribe.
Project specific funding can be used to get started,
but sources of long-term program implementation funding
should be identified.
4. Explain in detail the linkage between long-term goals
and short-term resource needs so that the Agency can
pursue adequate resource needs to assist with these
longer-term objectives, without focusing on the year-
to-year . fluctuations, on the budget.
-3-
-------
5. Updated key information for national budget development
on rolling schedules should be submitted annually based
on the Agreement while maintaining key activities that
lead to fulfillment of longer term goals..
(NAME OF TRIB-E1/EPA. SPECIFIC ACTION PLAN
I.
2
3
4
5.
6.
Describe Tribe's goals, objectives and desired
outcomes.
Identify short-term resource needs (FY 95 & 9'6) .
Identify long-term goals through ;(FY 98) if -possible.
Identify goals for program assumption and the year in
which the Tribe intends to apply for program
assumption.
Identify direct implementation needs from EPA.
Provide methods for implementing the program --
including enforcement on the reservation and for treaty
resources of the reservation. This would include an
identification c: contributions made by EPA, Tribe and
other Federal agencies. Areas in which the Tribe may
wish to pursue; v.-crking with the State~~ahd "wi'th" Tribal
cortsortiamay -be -included;. . ^_..._z-_: ._:_.___:_ni._.
List specific Tribal priorities in addition to general
program assumpti-n such as developing Tribal codes,
carrying on monitoring, developing a profile of Tribal
resources, etc
Identify training the Tribe feels it needs to help with
program implementation.
Define the Tribe, s cultural, resource, and technical
expertise, including current staffing and future
straffina needs. . ' - -
10. Provide-a method for monitoring progress.
-4-
-------
ATTACHMENT- I
,.55
UNiTBXSTATESEHVmONMBlTALPflOTECnorr'AGEMCr
WASHINGTON. D.C. 20460;
I 6 1994-
ENFOflCEMEHnNDi
^VttJOf lsAtf*g A*C*?f |flAfty*P'-
MEMORANDUM
SUBJEOTr Publication of: Regulation: Simplifying^ EPA's
Process, for Qualifying- Indian/Tribes* for Pr
Approval ~
FROM: Richard E. Sanderson-
Director //
Of f ica of Federal. Ae1
TO: Addressees.
ogram:
The.- regulation designed- to simplify EPA's process^ for
cnialifyingr Indian tribes f orr program; approval (the, so-calledi
"treatment-as-a-state" or TAS regulation) was* published! in the*
December 14, 199*; -Copiesiof: the; regulation:
are- attached^ We. request: that the.- Regional.
Indian Program Coordinators transmit, copies, to. tha- tribes: im
their regionsv
A companion regulation simplifying-- the process f orr Indian:
tribes to qualify for- financial assistance- was, published- in. tfaes
Federal Register: on March 23, 1994.
This is thei- culmination: of art: effort which- began in 1992.
when an intra-agency workgroup- determined: that the= process, forr
oualifyingr Indian: tribes; forr financial assistances and. program:
authorization-- was. burdensome* ani unnecessarily complex^ Thi^yiew*
process^ shouldi mak& it easier forr tribes* to: obtain: EPA- approval
to assume* thet role^ Congress envisioned, for; thenc underr the.
environmental. statutes*-
This action- completes: all. activities, in the Office: of.
Federal Activities; relatingr to the. Indian: program: which h*s> now~.
been transferred: to the, American Indian: Environmental Of f ice=
within the Off ice. of - Water. It also fulfills, ourr commitment to:
Bob Perciasepey the> Assistant Administrator: for Water, to
complete^ this: project and- we, are complying- with: the request of.
Terry- Williams?, tnfc new. Director of: the American: Indian.
EnvironmentaL Office, to- transmit the: regulation.-
-------
tor H«E»hfcU-
, and: tor all. of: yottx yfaccr vorfcadt IPS di liqanfrly
r«julmtionsi ovmcr
WocXgroupr
Agmcy
Indian Program Coordinator*
IntaE-Agancy- Indian: Diaoanion- Group:
Aiiiirican: Indian: Environm
:ict of.
-------
X) /
O- '£>
8
protecti
* The Finsfl. Rule under- the: clean: Wat«r and: sat.. Drinking- Wa.
Acts is designate simplify EPA's process.for:qualifying:Indian*
-,«*-, foirprogram?approval. It: was*d.v»Iop«feb.cau«teth^Agencjp-
m fSr app^vinr Indian tribes* for- "TrMtm«rfc a., a stats** _
Iunder: various program* ha«- provwc tcr b.^ burd«is«mter »«*
offensiv* to
ie7propos«L activities. Thfc Agwcy^has, promulgat«fc
Jre«vu,au^14.. f oi: implsmenting this authority under- the. Water:
and. has proposed, regulations under the. Air
k- Hone-, of tha statutes- compeL the us«i_of a formal. TAB or- otherr
pr equal if i cat ioir process- separate f romr approval, of. thin requests
for- a grant:, or* program: approval. However; the. Agency initially
chosei to inplenent- provisions: of. the? Clean: Waterr andi Safe
Drinking Water: Acts, by establishing a formal prequalificatioic
process underr which, tribes, can- seefc. eligibility under: these*
statutes. Underr the regulation-, current regulations would, be»
amended: to eliminate- TAS. review, as. a separate^ step: in the-.
processing- of. a tribal application: forrprograml approval. Underr
the: new> simplified. proc«ssr the.- Agency will, ensure^ compliance*.
with statutory- requirements: as an. integral, part: of the-- process* otr
reviewing program: approval applications^
The- term? "treatment.-as?-a-state."- is. somewhat: aisleadingr and=.
may be offensive-to tribes.. To the.-extent: possible, therruloi
amends existing- regulations- so as to- discontinue^ use* of. the* terms
"treatment: as- a state;" however, sincesthis.phrase* is includedt
in several statutes, its continued. use= is sometimes^ necessary.
-------
Aa a ganaral. rula> tha* "racognition* _
n »gui£M*nt»v*r*i aaaantially tha» aama* undnr that Claam Hatar?
Drinking- Watarr and: Claan: Airr Actav Thamaw*procaaaxwiiaJM
tUia- by -^*»n«>*4»iy- idantieal. raquixamantK forr *i^KttiTi **itr*
«J lowing: uBd«r- «aeh: cCmtuta^ Kor«ov«cv th«» fmofc tht
mot th«.~ "raeognltiott-"- o:r "gisvmrnmmntal- functions?' r
u.nd«rr thc» Claair Air: Act: orr aitaacr of.tha> Hatarr Actr. vill.
iitabliah: **tiMte: it maats. tho*a« raqoizavaztts: undap all. thraa*
§nd/mr .dtralica^lva
and aagpa
Bacauaa«a triba*may hav«» jurisdiction:
^V^^^^^B^M^V^^^ ^^ v-^r^v^ - ^ - ^ w - ^ ^ ^-
tcr carry out, cartain- aetisritiaa* (&*&*u. protaction: of: tha. naw. procaaa*
* not f orac-loaa* thar Agancy from making; a pacific.
a utarminatioir tnat a tr iba* haa^ adaqu
&rid_ ad«iniatra.tlvaL and; prograamatic: capability baf ora^ it approvaa*
itch, tribal program*.
ata^ juriadictional. authority^
capability baf ora^ it approvaa
portion- of. axiating--ragulationa; on juriadictional
cmtarmination: undarr which-govarnmanta:^omaantr on- tribal.
jurisdiction- will, ba.- altarad^ undarr tha^iagalation ;r
( 1 ) f orr approval* > ot, all. OrinJcing.- Watarrragulatory programa*
t nd .moats Claani Watansr programai. undag- axi gtlng^ragulatrtona> -EERs.
v dll not: authoctza- a. atatK.to oparata^ a' program vi±hcnfc; -
that th»s a£ata^ haa> adtquat*, authority^ tov carry* oufc
actions^, raqoirad^ to; ronr tttas pcograaw Thia^«ppiia»a- alaoer tor
r
t-Jaa^ lagaJ» baaia* ofc.a^tribaJa' jurixlictlomwill occuc baf ora
Accordingly '
_ ctional^ravia%»ia: nofc naadadi tor varifythate a-
atatutory* raquiramantv. and, ia. tharaf ora> altainatad- f orr all:
j. cogramai undarr thaa 8*ra> DrinJcingr Watarr Actv and; for: the? Claam
\ ratar= Act*a^ 404* andiHPDMr programav Thias changa*viLL hv
if f act only"ofr aliminating: duplicativai-raquiramantar
( 2 ) f orr that Watar; Quality- Standards^ program
raviav* ofr tribal *"thority aa^ part: of-' thaaprogr
procaaa-. Accordingly, f oir that: program^ a comman.tr pr
:a- rataihad.. Howavarr, thas Agancy amphaaixaaa thatt eommantms.aomtr
:«t of farad: in a. timaly mannarr and: apaeif iaax that: whara- nor tiaaaiy
roananta ara- of farad*- tha* Agancy- will- concluda»that thara? ia^ncc
:bj action- to- that tribal, applicants a. juri*o.ict±onal. aaaartionv
-------
be*riKprinidv br regulation-, to- o
»^
isdii
* aMtmayr consult: a» it seee»f it withrotnerr
orr to: »**r- & d«criffinTF asi to: trlb>rl
I<%P*"«" ^^^^i*1 ^^H^I^V^P^I*^^^ ^^
of: trihnl
authority".
satisfactorily
| EPK will, continue to imak»i a. «*riiif*^fi^*t*rHllTtiitinTr of.
capability- foe* eacbr progra«x foe- vbichi it. approrras& a tribe-..
Hovovttcr, thfc safa-.Driniclngr WatarrAct: and^Claan: Wat^rr Act:
r«gulations^ will. bs» am^nd^dr tor conform;- toi th«a.Ciat- grant
r»gulation«rr vhielxidoi not sp«ci£ically pr»«crib
Ti-^- *** «1^>it?ltgh' tlitYy ord
matarial. a
^riiy^ y^^tr mifcT-- * ordinarily,
inquiry EPA will mak*t intor tha> capability of- any-applicantr,
tribal, or- state* f orr a grant- orr prograabapproval^. would- b«r
sufficient: to: enable* the* Agency to: d***^*^. u^^^^r- a tribe*
meetsr the^ statutory capability req
-------
Federal Register / Vol. 59. No. 239 / Wednesday. December14, 1994 / Rules and Regulations 64339
governmental relations. Nitrogen
ade. Ozone. Repotting and
rdkeeping requirements. Volatile
oic compounds. Note: Incorporation
ifcrence of the State Implementation
for the State of California was
wed by the Director of the Federal
star on July 1,1982.
ted: November 28.1994.
Wbe,
y Regional Administrator
trt *Z, chapter I. title 40 of the Code
sdenl-Regulations is amended as
iws:
IT52-(AMENDEDI
The authority citation for part 52
inues to read as follows:
tffaorirjr 42 U.S.C. 7401-76710..
part FCalifornia
Section 52.220 is amended by
ing paragraphs (c) (186)(i)(D)(2) and
Ki)(A)(2) to read as follows:
220
Wenttflcenonofptan.
86)
)Rul«
*
94) *
I '
03, adopted on-June 4,1991.
:) Rule 59. adopted on September IS,
Z.
Doc. 94-30742 Filed 12-13-94: 8:45 «m|
nc coot mo 10 P
Parts 123, 124, 131, 142, 144,
,233, and 501
2020-AA20
Ian Tribes; Eligibility for Program
horizatlon
MCY: Environmental Protection
acy (EPA).
UN: Final rule.
MARY: This action amends
dations addressing the role of Indian
«s so as to nuke it easier for tribes
ibtain EPA approval to assume the
» Congress envisioned for them under
t«in wurimnmontjl statutes. Thma
*. regulatory statutes address the
>al role specifically .by authorizing
Mo treat tribes in a manner similar
hat in which it treats states: The
um Water Act (CWA). the Safe
. Drinking Water Act (SOWA), and the
Clean Air Ac: (CAA). All three statutes
specify that in order to receive such
treatment, a tribe must be federally
recognized and possess a governing
body carrying out substantial duties and
powers. IB addition, each requires that
a tribe possess civil regulatory
jurisdiction to carry out the functions it
seeks to exerdse. Finally, all three
require that a tribe be reasonably
expected to be capable of carrying out
those functions.
. The Agency initially chose to ..
implement provisions of the dean
Water and Safe Drinking Water Acts
regarding Indian tribes by establishing a
formal prequalincation process under
which tribes can seek eligibility under
these statutes. This praqualification
process has La the past been referred to
as approval for "treatment as a state"
(TAS"). Tribes that obtain such
approval then become eligible to apply
for certain grants and program approvals
available to states.
The Agency's TAS" praqualification
process has proven to be burdensome,
time-consuming and offensive to tribes.
Accordingly, EPA has adopted a new
policy to improve and simplify the
process and this regulation implements
the new policy. To the extent possible,
the Agency plans to use the same
process in future regulations regarding
determinations of tribal eligibility.
As of the e tractive date of this
regulation, it is the intent of EPA to
follow the new process in making
determinations on tribal eligibility for
program authorization. With respect to
pending *TAS" applications for
program authorization, the Agency will
utilize the Information contained in
such applications to determine tribes'
eligibility acd tribes will be requested to
supplement such applications only to
the extent necessary to determine
program eligibility
EFFECTIVE DATE: December 14.1994.
FOR FURTHER INFORMATION CONTACT; C
Marshall Cain. Office of Federal
Activities (2251). Environmental
Protection Agency. 401 M Street SW..
Washington, DC 20460. (2Q2) 260-8792.
SUPPLEMENT ARY INFORMATION:
Background
In order to simplify and streamline
the process of assessing tribal eligibility
for program authorization while still
ensuring full compliance with all
applicable statutes, on March 23.1994,
EPA published in the Federal Register
(59 FR13819) a notice of proposed
rulemaking to amend regulations
governing the process whereby Indian
tribes become eligible to assume a role
! to the
in implementing the environmental
statutes on tribal land comparable to
role states play on state land.
EPA recognizes that tribes an
sovereign nations .with a unique legal
status and a relationship to the federal
government that is significantly
different than that of states. EPA
believes that Congress did not intend to
alter this when it authorized treatment
of tribes "as States;" rather, the purpose
was to reflect an intent that, insofar as
possible, tribes should assume * role in
implementing the environmental'
statutes on tribal land comparable to the.
role states play on state land. . .
The proposals setfoxth In the
proposed rule involved the following:
1. Elimination of TAS" review as a
separate step in the process. No statute
compels the use of a formal TAS" or
other praqualification process separate
from approval of the underlying request
for program approval The only '
requirements imposed by statute are
thai, to be eligible for program
authorization, a tribe must be federally
recognized, have a governing body ' '
carrying out substantial duties *"
powers, and have adequate jurisdiction
and capability to carry oat the proposed
activities. Thus, EPA may authorize a
tribal program without formally
designating the tribe as "eligible for '
TAS." so long as the Agency establishes
that the tribe meets the applicable .
statutory requirements. In other words.
the Agency can ensure compliance with
statutory mandates without requiring
tribes to undergo a discrete, formal
process of seeking TAS" approval.
Accordingly. EPA is amending its
regulations to eliminate TAS" review
as a separate step in the processing of
a tribal application for program
Ipproval. Under the new, simplified
process, the Agency will ensure
compliance with statutory requirements"
as an integral part of the process of
reviewing program approval
applications. To the extent that this rule
or preamble conflicts with'the language
of previous rules and preambles, the
language herein shall be controlling.
2. Discontinuance of use of the term
"treatment as a state.- To the extent
possible, the rule amends existing
regulations so as to discontinue use of
the term "treatment as a state": *
however, since the phrase is included in
several statutes, its continued use may
sometimes be necessary.
3. Simplified determination as to
"recognition" and "government" A
tribe typically establishes recognition by
showing its inclusion on the list of
federally recognized Tribes published ,.
by the Secretary of the Interior in the : '
Federal Register. A tribe establishes that'
\
\
1
-------
64340 Federal Register / VoL 59. No. 239 / Wednesday. December 14, 1994 / Rules and Regulations
it meets, the governmental duties and
powers requirement with a narrative
statement describing the form of the
tribal government and thetypes of
functions it performs, and identifying
the sources of the tribe's governmental
authority. "-''.
As a general rule, the "recognition"
and "governmental" requirements are
essentially the same under the Clean
Water. Safe Drinking Water and Clean
Air Acts. The new process will reflect
this by establishing identical
requirements for making this showing
under each statute. Moreover, the fact
that a tribe has met the recognition or
governmental {unctions requirement
under either of the:Water Acts orthe-
Clean Air Act will establish that it meets.
those requirements under both statutes.
. To facilitate review of tribal
applications, EPA will request that
tribal applications inform EPA'whether
a tribe has been approved forTAS" '
(under the old process) or deemed
eligible to receive authorization (under
the revised process) for any other
program.
A tribe that has not done so may
establish that it has been, federally
recognized by simply stating in its
prognnxauthorization application that
it appears on the list of federally
recognized tribes that the Secretary of
the Interior publishes periodically in the
Federal Register. If the tribe notifies
EPA that it has been recognized but
does not appear on this list because the
list has not been updated. EPA will seek
to verify the fact of recognition with the
Department of the Interior.
A tribe that has not yet made its
initial "governmental" showing can do
so by certifying that it has a government
carrying out substantial functions. A
tribe will be able to make the required'
certification if it is currently performing
governmental functions to promote the
public health, safety, and welfare of its
population. Examples of such functions '
include, but are not limited to, levying *
taxes, acquiring land by .exercise of the
power of eminent domain, and
exercising police power. Such examples
should be included in a narrative
statement supporting the certification,
(1) describing the form of tribal
government and the types of essential -
governmental functions currently -
performed, and (2) identifying the legal
authorities for performing those
functions (e.g., tribal constitutions, or
codes). It should be relatively easy for
tribes to meet this requirement without
submitting copies of specific documents
unless requested to do so by the Agency.
4. Simplified fnrisdictioiial analysis.
A tribe may have jurisdiction over, and
.capability to cany out/certain activities
' fag-t protection of the quality of a
particular lake for the Clean Lakes
program under the dean Water Act),
but not others (e.g., waste management
on a portion of the reservation far
removed from any lakes). For this
reason. EPA believes that the Agency
must make a specific determination that
a tribe has adequate jurisdictional
authority and administrative and
programmatic capability before it
approves-each tribal program. This will
ensure that tribes meet the statutory
requirements Congress has established
as prerequisites tatribal eligibility for
each particular program,
.The portion of the jurisdictional .
determination under which .
governments comment on tribal
.jurisdiction will be substantially altered
under this Rule. These changes are
outlined below.
For approvals of all Drinking Water
regulatory programs and most Clean
Water programs under existing '.
regulations. EPA will not authorise a
state to operate a program without
determining that the state has adequate
authority to carry out those actions -
required to run the program. See e.g. 40
CFR 142.10 (PWS). 145.24 (UIC). This
applies also to a tribe seeking program
approval, and ensures that a dose
'analysis of the legal basis of a tribe's
jurisdiction will occur before program
authorization.'
. Accordingly, a separate "TAS"
jurisdictional review is not needed to
verify that a tribe meets the statutory
jurisdictipnal requirement and,
therefore, will be eliminated for all
programs under the Safe Drinking Water
Act. and for the Clean Water Act's 404
and NPDES programs. This change will
have the effect only of eliminating
duplicative requirements. In no case can
a tribe receive program approval until
the Agency has received full and
adequate input concerning the scope
and extent of the tribe's jurisdiction.
Moreover, EPA will expect each tribe
seeking program approval to provide a
precise description of the physical
extent and boundaries of the area for
which it seeks regulatory authority. This
description should ordinarily include a
map and should identify the sources or
systems to be regulated by the tribe.
However, for the Water Quality
Standards program, there is no review of
tribal civil regulatory authority as part
of the standards approval process under
section 303{c) of the Clean Water Act
Accordingly, for that program, a
comment-process will be retained.
However, the Agency wishes to clarify
the operation of that process by
reiterating that comments must be ;
offered in a timely manner, and. further,
by specifying that where no timely
comments are offered, the Agency will
conclude that there.!* no objection to
. the tribal applicant's jurisdictional
assertidn< Moreover, to raise a
competing or conflicting claim a
comment must clearly explain the
suostance.- basis, and extent of its
objections. Finally, when questions are
raised concerning a tribe's jurisdiction.
EPA may. in Itt discretion, seek-
additional information from the-tribe or
the. commenting party, and may consult
as it sees fit with other federal agencies
prior to m»iting A determination as to
tribal jurisdictipnal authority, but is not
required to do so. Henceforth. EPA will
no longer be required, by regulation, to
consult with the Department . . - .-
Finally, the Agency notes that certain
disputes concerning tribal jurisdiction
may be relevant to a tribe's-authority, to
conduct activities and obtain program
approval under several environmental
statutes. For example,.if a tribe and a '
state or another tribe disagree as to the
boundary of a particular tribe's
reservation, each time the tribe seeks to
assert authority over the disputed area.
the dispute will recur. The Agency
.recognizes that its determinations
regarding tribal jurisdiction apply only
to activities within the scope of EPA
programs. However, it also believes that.
once it makes a jurisdictional
determination in response to a tribal
application regarding any EPA program,
it will ordinarily make the same
determination for other programs unless
a subsequent application raises different
legal issues. Thus, for example, once the
Agency has arrived at a position
concerning a boundary dispute, it will
not alter that position in the absence of
significant new factual or legal
information. By contrast, however, a
determination that a tribe has inherent
jurisdiction to regulate activities in one
medium might not conclusively
establish its jurisdiction over activities
in another medium. See generally
Discussion of inherent tribal authority
in Water Quality Standards Regulation.
56 FR 64877-64879.
Under the new approval process, as
under the old. the Agency will continue
to retain authority to limit its approval
of a tribal application to those land
areas where the tribe has demonstrated
jurisdiction. This would allow EPA to
approve the ruction of a tribal..
appueafibn covering certain areas, while
' withholding approval of the portion of
. ,i_ v~~- « ' . - -t *V i j
frtly'es&bli
i 37402 (September 26,:
1988)XSp\yA);'54FR". 14353,14355.
-------
Federal Register / Vol. 59. No. 239 / Wednesday. December 14, 1994 / Rules and-Regulations 64341
(April 11.1989) (dean Water Act ~
Gnats); 84 PR 39097,39102 (September
12.1989) (Clean Water Act Water
Quality Standards); 58 FR8171,8176
(February 11.1993) (Clean Water Act
section 404); 58 FR 67966.67972 (dean
Water Act NPDES) (December 22.1993).
5. More flexible requirements to
establish capability. EPA must continue
to make a separate determination of
tribal capability for each program for
which it approves a tribe. However, the
Safe Drinking Water Act, Water Quality
Standard^, Section 404. and NPDES
regulations will beainended to conform
to the CWA grant regulations, which do
' not specifically prescribe the material a
true mustjubmit to establish ,
capability. Ordinarily, the inquiry EPA
wffl make into the capability of any .
applicant, tribal or state.' for a grant or
program approval will be sufficient to
enable the Agency to determine whether
a tribe meets the statutory capability
requirement See. e.g., 40 CFR part 31
(grant regulations applicable to states
and tribes); 40 CFR 142.3 (Public Water
System primary enforcement
responsibility requirements at parts 141,
142 apply to tribes); § 14S.l(h)
(Underground Injection Control ' .
requirements of parts 124.144.145. and
146 that apply to states generally apply
to tribes).
Nevertheless, EPA may request that.
the tribe provide a narrative statement
or other documents showing that the
tribe is capable of administering the
program for which it is seeking
approval. In evaluating tribal capability,
EPA will consider
(1) The tribe's previous management
experience;
(2) Existing environmental or public
health programs administered by the
tribe;
(3) The mechanisms in place for
carrying out the executive, legislative
and judicial functions of the tribal
government;
(4) The relationship between
regulated entities and the administrative
agency of the tribal government which
will be the regulator; and
. (5) The technical and administrative
capabilities of the staff to administer
and manage the program. , - - ..:,.... ' s
' EPA recognizes that'certain tribes may'
not have substantial experience
administering environmental programs;
a lack of such experience will not
preclude a tribe from demonstrating
capability, cq long as it shows that it has
the necessary management and , ..
. technical and related skills or submits a
plan describing how.it will acquire
:those skills. . . ' ''
The notice of proposed rulemaking
. invited public comments on the '
proposed amendments, which would be
considered before adoption of a final
rule. The public comment period closed
on May 23,1994.
Analysis of Comments
A total of seven commenters
responded to the solicitation of
comments during the public comment
period. Of these, four expressed support
for the proposed changes in varying
degrees, one of whom expressed strong
support and others supported the
changes generally but disagreed with
certain aspects or had specific
ncommendations for other changes.
One commenter did not express support
or opposition but urged. EPA to continue
to stress that tribes should enact water.'
quality programs similar: to current state
water quality programs. Another
commenter. while not explicitly. .
supporting the proposed amendments,
urged that .they be extended to include
two other programs under the Safe
Drinking Water Act A final commenter
opposed one aspect of me simplification
process as it related to state review of
tribal applications. These comments.
suggested changes, and the EPA
responses thereto, are set forth below.
Comment' Consistent with-the EPA
Indian Policy and sound administrative
practice, EPA should reoogninn tribal
authority over all-environmental matters
within reservation boundaries, without
requiting tribes to demonstrate their
inherent authority.
Response: EPA recognises the
importance of comprehensive
management of reservation
environments. However. EPA does not
have the legal authority to expand the
scope of tribal jurisdiction.
Consequently, EPA must continue to
analyze each tribal claim of jurisdiction
in light of appropriate statutory and
common law principles to ensure that
the tribe in fact has adequate authority
to cany out the functions it proposes to
undertake.
Comment: EPA is to be commended
for eliminating the state opportunity to
comment on tribal |urisdictional
assertions for all SDWA programs and <
for Aegean Water Act Section 404 and
NPDES'programa. However, since tribes
'cannot comment'on state jurisdictional
assertions In any programs, in fairness. -
EPA should also eliminate state
opportunity to comment on tribal
jurisdietional assertions regarding Water
Quality Standards. ' .
Response: EPA continues to believe*
that it has the legal authority to approve
a tribal Water Quality Standards .
prognini only upon a determination that
the tribe iias adequate authority to
operate that program, andthat state
comments may be useful tb-. r '
: EPA agrees with the ":-.-.. .
commenterthat this would simplify the
process. However( EPA believes that it
should look In the first Instance to each
tribal applicant's views as to its own
jurisdiction. Thus a tribe thatbelieves it
is appropriate to provide more
information regarding jurisdiction on a
subsequent application than it provided
on a previous one should be able to do
so directly, without waiting for EPA to
determine, after it begins processing an
application, that more information is
needed. EPA believes that under the
current proposal, a tribe that wishes to
use the process described by the
commenter could do so by expressly
incorporating the earlier jurisdictional-
assertion into a subsequent application.
In addition, the jurisdictional -
approach the Agency has determined
the Clean Air Act allows it to follow
differs substantially from the approach
it follows under the Water Acts. For this
reason, EPA does nofbelieve it would
be appropriate to establish a process
under which a tribe would assume that.
unless advised to the contrary, a
jurisdictional assertion that was
adequate under the Clean Air Act would
also be adequate under one of the Water
Acts. -'
Comment: States should be able to
comment on the jurisdictional
assertions contained intribal grant
applications/Also, Mates should not be
totally bypassed-in decisions td approve
tribal regulatory program*. :-j :''* .'
Response: As stated in the₯ederal * -_
Register notice -amending* (he EPA ' -~--
financial assistance regulations for'
tribes, EPA has extensive experience
awarding grants to tribes, and has
concluded that it is fully capable of
evaluating grant applications to ensure
adequate tribal jurisdiction without
seeking conunents fromstates,-EPA
agrees that it' should obtain-informatibn
from states concerning tribal* ; ';. ~
applicatibnsfor program approval, and
-------
64342 Federal Register / VoL 59. No. 239 / Wednesday. December 14. 1994 / Rules end Regulations
I regulatory changes would
i that this occurs. . ~~
< Comment: One commenter. while .
supporting the intent of the proposed
revisions, urged that (1) EPA regulations
relating to Section 401 Certification (40
- CFR part 121) be amended to expressly
include Indian tribes so as to facilitate '
tribal involvement in the section 401.
process, to resolve disagreements '
between tribes and states and to resolve
disputes between tribes as well; (2) an
apparent tPT*noit State for purpoces-ofStatft certification -.
otWQS pursuant to sectiott4Ol(aXD of
. the Act {Glean Water ActJ andSubpart .
D of Ihitpart/'.The pnambtoof the :-.:,:.>
final WOES iul».at6&FR6?967. .-:-«:,-
- (December '10t-199# discusses thi*new<
provision in-more depthv-« . -- «-.
In addition, the recent EPA guidance
concerning EPA's implementation of the
NPDES and sludge management
programs with respect to Federal Indian
Reservations (FIRs) specifies that "In
situations when a State is the upstream
NPDES permitting authority and
downstream FIR Tribal WQS have been
approved by EPA, the State will provide
notice of the preparation of a draft
permit to the affected Tribe pursuant to
CWA sections 401 and 402. Under CWA
sections 402(b)(3) and 40 CFR 124.12(a),
the upstream NPDES state must provide
an opportunity for public hearing on the
tesu'MKff of the draft permit where there
is ftenifiAnt public interest in so douig.
CWA section 402(bX5), the
afgpcted Tribe may submit written
recommendations to the permitting '
State and EPA. and the failure to accept
the recommendations and the reasons
for doing so. EPA can object to the "
upstream State permit where EPA
believes that the reasons for rejecting
the recommendations are inadequate."
Therefore, this guidance reflects EPA's
general view that applicable tribal WQS
are to be reflected in all water quality-
based NPDES permit limits. When the
Part 122-124 regulations refer to WQS
of a "State," this also refers to Indian
tribes with EPA approved WQS.
(3) EPA previously responded to
comments regarding the scope of the
dispute resolution mechanism on the
rule allowing tribes to establish WQS
(56 FR 64876. December 12.1991). At
that time, OW commented that the rule
was written in thlt manner because
Section 518 of the Clean Water Act
specified that a dispute resolution
mechanism be developed to resolve
disputes arising between a tribe and a
state. OW further commented that EPA
believes the requirements that the State
standards provide for protection of
downstream standards in § 131.10(b) of
the WQS Regulation, supported by a 25
year history of informal negotiation of
issues between states, provides
sufficient basis for resolving disputes
between two states or two tribes. 56 FR
64868-64B89. Further comments on this
issue are beyond the scope of this rule
and. therefore. EPA declines to revisit it
at this time.
Comment: Although the proposed
regulation would simplify the TAS
process for a number of programs, it
would not apply expressly to wellhead '
protection programs or sole source
aquifer demonstration programs under
thtfSafe Drinking Water Act The
. Agency should.consider seriously the-
inclusion of -these important programs '
under the new regulation as welt ""< "'
. j. Response: EPA does not believe that
..^t would be appropriate toexpand the ,
Its development However, as pointed
out previously in the Summary of this
regulation, to the extent possilbie,-the -
Agency plans to use the new process in
future regulations regarding
determinations of tribal eligibility.
Conclusion
Accordingly, based on the comments
received and the analysis of those
comments as set forth above, EPA
believes that the proposed regulatory
amendments as published in the
Federal Register oa March 23.1694 (59
' FR 13819X*bould beadopted as a final
rule as discussed above and set forth
below.; "-' ; '" -.:
Executive Crier 12W; .. . .
UndtoExecutive brder 12866. (58 FR
51735 (October 4/19fl3)J the Agency
must determine-whether the regulatory
action is "significant" and therefore ,.
subject to OMB review and the
requirements of the Executive Order.
The Order defines "significant --
regulatory action" as one that is likely
to result in arule that may.
(1) Have an annual effect on the-- -
economy of $100 million or more or
adversely affect in a material way the
.economy, a sector of the economy.
productivity, competition, fobs, the
environment, public health or safety, or
State, local or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency:
(3) Materially alter the budgetary
impact of entitlements, grants, user fees.
or loan programs or the rights and
obligations of recipients thereof: or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the' principles
set forth in the Executive I
It has been determined that this rule
is not a "significant regulatory action"
under the terms of Executive Order
12866 and is therefore not subject to
OMB review.
Regulatory Flexibility Act
Pursuant to section «05(b) of the RFA.
5 U.S.C. 60S(b)i EPA certtfieslhat this
rule will not-havtre significant' -
number of small entities because it
merely revises existing-procedorai -- -
I
m«lr)M thorn simpler-end less <
burdensome; Indian tribes are not'
considered-small-entities under this
-------
Federal Register / Vol. 59. No. 239 / Wednesday, December-14. 1994 / Rules and Regulations 4343
Paperwork Reduction Act
The proposed regulations contain no
new or additional information
collection activities and, therefore, no
information collection request will be
submitted to the Office of Management
and Budget for review in compliance
with the Paperwork Reduction Act,* 44 '
U.S.C. 3501 et seq.
List of Subjects
40 CFR Part 123
Administrative practice and -
procedure. Confidential business
information^ Environmental protection.
Hazardous substances, Indian lands/
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements. Waste treatment and '
disposal. Water pollution control. Water
supply. ;
4Q CFR Part 124
Administrative practice and
procedure, Air pollution control,
Environmental protection. Hazardous
^substances, Indian lands. Reporting and
"recordkeeping requirements. Sewage
disposal. Waste treatment and disposal,
Water pollution control. Water supply
40 CFR Part 131
Environmental protection, Reporting
and recordkeeping requirements. Water
pollution control.
40 CFR fart J42
Environmental protection.
Administrative practice and procedure.
Chemicals. Indianslands. Radiation
protection. Reporting and recordkeeping
requirements. Water supply
40 CFR Pan 144
Environmental protection.
Administrative practice and procedure.
Confidential business information.
Hazardous waste, Indianslands.
Reporting and recordkeeping
requirements, Surety bonds, Water
supply.
40 CFR Pan 145
Environmental protection. Indians
lands. Intergovernmental relations.
Penalties, Reporting and recordkeeping
requirements. Water supply.
10 CFRPart 233
Environmental protection,'
\dministrative practice and procedure,
ntergovemmentaj relations. Penalties,
Reporting and recordkeeping
cquirements;Water pollution control
10CFRPartJW/.'^t-«~ - ; '
Administrative practice and'-:.v i /
^ Intergovernmental relations, <~
Penalties. Reporting and recordkeeping
requirements. Sewage disposal.
Dahtd: November 16.1994.
Fred IlaBseo,
Acting Administrator
For the reasons set forth in the
. preamble, 40 CFR parts 123,124.131.
142,144,145,233. and 501 are
amended as follows:
PART 123STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 223
continues to read as follows:-
Auttoritr: Clean Water Act 33 U ££. 1251
etteq. ' ' .'
§123.1 [Amended].
2. Section 123.1 (b) Is amended by
removing the phrase "treated as a
State."
§12X21 [Amended]
3. In § 123.21 paragraph (a)(l) is
amended by revising the phrase
"eligible for treatment as a state in
accordance with § 123.33(e)" to read "in
accordance with § 123.33(b)".
4. In $ 123.21 paragraph (b)(2)-is
amended by removing the phrase "for
treatment as a State" both times they
appear and by revising the text
"§ 123-33(e)" to read "5123 43(b)~
§12122 (Amended]
S. In $ 123.22 paragraph (g) is
amended by removing the phrase "for
treatment as a State" and by revising the
text "§ 123J3(e)" to read "§ 123.33(b)".
§ 12341 (ARMndedl
6. The heading of S 123.31 is amended
by revising the phrase "for treatment of
Indian Tribes as States" to read "for
eligibility of Indian Tribes."
7. In Si-123.31 paragraph (a) is
amended by removing the .phrase "a
State for purposes of making the Tribe."
8. In $ 123.31 paragraph (a)(4j is
amended by removing all language
following "in a manner consistent with
the terms and purposes of the Act and
applicable regulations, of an effective
NPOES permit program."
§12342 (Amended] .
9. The heading of § 123.32 is amended
by removing "for treatment as a State."
10. In $ 123.32 the introductory text is
amended by removing the phrase "for
treatment as a State."
11. In $ 123.32 paragraph' (b)
introductory text is amendediy revising
the wordir "This statement shaft" to read
"This statement should". . - "
12. In § 123.32 paragraph (c) is
amended by revising the-phrase **a copy '
of all documents" to redd "copies of
those documents" and by revising the''
phrase "support the Tribe's assertion" -
to ret J "the Tribe believes are relevant
to its assertion."*
13. In §12332 paragraph (4)
Introductory text is amended by revising
tbe-phrase "The statement «h*j| '.
include" to read "The statement should
include.".
14. In S 123.32 paragraph (d)(l) is
amended by revising the words
"including, but not limited to^to read
"which may Include."
IS. In $123.32 paragraph («) Is
amended by revising the phrase "a ; ,
Tribal request for treatment «s a State"
tomd waTriW>eligibility.'V
16. In $ 12&32 paragraph (9 is revised
to read as follows: ;'. .
§12X32 ftoqiMtt by an Indian Trite fora
deteimiiMflon of «Hglbimy.
...-'
(f) If the Administrator or his or her
delegatee has previously determined
that a Tribe has net the prerequisites
that make it eligible to assume a role
similar to that oft state as provided by
statute under the Safe Drinking Water
Act. the dean Water Act, or the Clean
Air Act; then that Tribe need provide
only that information unique to the
NPOES program which is requested by .
the Regional Administrator.
§12343.[Amended] ' * -
17. The heading of $123.33 is "
amended by removing the phrase "for '.
treatment as a State."
18. In $ 123.33 paragraph (a) is
amended by removing the .phrase "for
treatment as a State."
19. In $ 123.33 paragraphs (b).(c), (d),
and (e)-ara removed and paragraph (f) is
redesignated as paragraph (b).
PART 124-PROCEDURES FOR
DECtSIONMAKINQ
1. The authority citation for part 124
continues to* read as follows:
Authority: Rosourc* Couervatioo and
Recovery Act. 42 U.S.C. 6901 et seq.; Sufe
Drinking Water Act. 42 U^.C 3OO(R et seq..
OMB Water Act. 31 US.C. 1251 et ceo..
Qean Air Act. 42 U^C 7401 el seq.
§124.2 (Amendtd];
2. In S 124.2 the definition of "State"
is amended by revising the phrase "an
Indian Tribe treated as * State" to read
"an Indian Tribe that meets the ..
statutory criteria Which authorize EPA
to treat the Tribe in a manner similar to
that In which;it treats a State"
§12441''[Amended] - -
3. In $ 12-fLSl paragraph-(c)Us
' amended by revising the phrase "is
qualified for treatmentlasa State" to
-------
64344 Federal Register / Vol 59. No. 239 /Wednesday. December 14. 1994 / Rules and Regulations
[ "meets the statutory criteria which
ze EP A to treat the tWbe In a
: similar to that in whico~ it treats
a State" and by revising the phrase
.-likewise qualified for treatment as a
State" to read "likewise qualified for '
such.treatmeaL"
PART 131 WATER QUALITY
STANDARDS
1. The authority citation for part 131
continue* to read as follows:
-Authority. M VJ&JC. 1»1 ef teq.
$131.3 [Amended]'* '
Z ln:§ 131 J paragraph (j) Is amended
by re vising the phrase ^qualify for
treatment as States for purpose* of -water
quality standards" to read "to bis el "*
for purposes of a water quality
standards program". . :
[Amended]
3. In § 131.4 paragraph (c) is amended
by revising the phrase "qualifies for
treatment as a State" in both places that
it appears to read "is eligible to the
. same extent as a State"
t*31.7 [Amended]
4, In §131.7 paragraph (b)(2) is
amended by revising the phrase
Jtoualifies to be treated as a Stale" to
Vead **is eliglble.to the same extent
State". .-. . -
$131.8 tAmended]
5. The beading of S131.SU
by revising the phrase "to be treated as
States for purposes of water quality
standards" to read "to administer «
water quality standards program".
6. In § 131.8 paragraph W
introductory text is amended by revising
the phrase "treat an Indian Tribe as a
State for purposes of the water quality
standards program" to read "accept and
approve a tribal application for.
purposes of administering a, water
quality standards program".
7. In $ 131.8 paragraph (b)
introductory text is amended by revising
the phrase "for treatment as states for
purposes of water quality standards" to
read "for administration of a water
quality standards program".
8. In § 131.8 paragraph Q>K2)
introductory text is amended by revising
_ the word "shall" to read "should"
- 9. hi $131.8 paragraph (b)(3} . -
introductory text is amended by revising
the word "shall" to read-"should".
10. In-S 131.8 paragraph (b)(3Kii) is .
amended by/removiM the semi-colon
} and adding to theend of the'paragraph
the phrase "and which may include a -
"* » j* ' - " -*
copyofdccunu
and/or resolutions which support the
Tribe's assertion of authority; and".
11. Section 13l,8G>U3)(iu1 is removed:
12. In § 131.8 parag.-aphlb)(3)(iv) is
redesignatedas(bH3HUiJ. "
13. to $131.8 paragraph (b)(4) '
Introductory t*xt is amended by revising
the word "shall" to read "should".
14. In S 1313 paragraph (b)(4)(i) is
^amended by revising the phrase .
'"including, but not limited to" to read
"which, may include".
IS. In S 1314 paragraph (b)(S) is
amended by revising the phrase
"request for treatment as a State," to
16. In" $131.81
amended 1
"qualified lor treatment as a State" to
read "qualified for eligibility or
treatment as* state' " and by removing
the second occurrence of the phrase
"treatment as a State".
17, In § 131.8 paragraphs (c)
introductory text. (c)(l) and (c)(2)
introductory text are amended by
removing the words "for treatment as a
State". .
18. In S 131.8 paragraph (cX4) is
amended by revising the phrase "after
consultation with the Secretary of the
Ulterior, or his designee" to read "after
due consideration".
19. In § 131.8 paragraph (cHS) is
amended by revising the words "has
qualified to be treated as a State for
purposes of water quality standards and
that the Tribe may initiate the
formulation and adoption of water
quality standards approvable under this
part" to read "is authorized to
idminister the Water Quality Standards
program".
PART 142 NATIONAL PRIMARY
DRINKING WATER REGULATIONS
IMPLEMENTATION
1. The authority citation for part 142
continues to read as follows:
Authority: 42 U.S.C SOOg. 300g-l, 3OOg-2."
MOg-S.MOg-*. 300g-5. 300g-«. 300K and
$1422 [Amended] \
2. In §.142.2 the definition of "State"
is amended by revising the phrase "or
an Indian Tribe treated as a State." to
read "or an eligible Indian tribe"
$i4&3 [Amended}.
3. In § 142.3 paragraph (c) Is amended
by revising the phrase "be designated by
the Administrator for treatment as a
State" to read "meet the statutory
criteria at 4ZUS.C. 300}-ll(b)(l)"
Subpart K-4ndlan Tribes -
$ 142J2. nequbwnentslor.Trlbal eJJgHHUty.
S. The heading-of § 142.72 is revised
to read as set forth above. . . ' .
, 6-7 Secticp 142.72 is amended by
revising the introductory, text and
paragraph (d) to read as follows.: -.
$142.72 ReqiitrementtlorTrtbeleltglbBtty
' Hie Administrator is authorized to
treat an Indian Tribe as eligible to apply
for primary enforcement responsibility
for the Public Water System Program if
it meets the following criteria:
.'. ...-..'..
(d) The Indian Tribe .is reasonably.
expected to be capable, in the ^ - ...
A Amln 1 ehriitQr'«-|ii
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Federal Register / Vol S9. No. 239 /.Wednesday. December 14. 19S4 / Rules and Begukaops64345
16. The heading of $ 14Z76 is
mlttrt
treatmeat,as4State".
17. ta $442^3 paragraphia) fa
amended by removing the1 wands "for
reatment as « State submitted puisuant
of 142.76"
16. In 5 142.78 paragraphs (b% (c) and
d) are removed and paragraph (e) is
edesignsted as (b) and amended by
evising the language "If the
oeats the requirements of $ 142^2. the
ndian Tribe is theajeugibleto apply
Or" totead "A trfbelaat ntfetslhe
eqairements of $ 142.72 fa eligible to
pplyfor" "..'.'::'"\\'";'.
EJECTION CONTROLPBOGflAU
1. He authority citation for part 144
ootiflues to read as follows:
AtffaMtijr: Safe DrioUog Water Act 42
'S.C JOOf «( caq: JtMourai CaMenntioo
id Recovery Act. 42 I1S£. 6902 ntinues to read as fallows:
Authority: 42 U&C*3OOletaeq.
45.1 {Amended]
2. In § 145.1 paragraph (b) is amended
adding the word "eligible" between
3" aad 'Indian Tribes" In the first
otence; and by removing the second
ntence.
ibpart E Indian Tribes -
3. The beading of subpatt E of part
S is revised to read as set forth above.
4&S2 Requtrameots tor Tribal eiifllbUity.
4. The heading of $ 145.52 is revised
read-as set forth above.
y~&. Section 145^2 is amended by
feing the introductory text end
ragrapa(d)toread*sfcUows: .
45,82
Program .if it meets the following
criteria:
: (d) The Indian Tribe isieasonably
-expected to be capable, in the
AQmfaiistrator'j ~
,
administering (in a namnff r^m*i*
with the terms and purposes of the Act
and all applicable regulations} an
. effective I Jhderground Injection Control *
Program.
'
at an >"^t»« -Trthg-ff-THflfM* to apply
' ~~
{14&58
7 .The heading of .$ 145.56 fa amended
by fevfafagthe phrase "of treatment as'
a State" to reed "of eligibility" ~
I«. fa §145.56 to introductory text fa .
amended by revfaiag the phrese
"qualifies for treatment as a State
purcaaot to" to read "meets the criteria
of." . "'.,,.
~ 9. fn § 145.56 ptragrapB~{b)
introductory text is amended by revising
the word "shall" to read "should" .
" 10. In S145.56 paragraph (c) fa
amended by revising the word "all** to
.read "those," and by revising the phrase
"support the Tribe's asserted
jurisdiction- to read "the Tribe believes
are relevant to its assertions regarding
jurisdiction"
11. In § 14S.S6 paragraph (d)
introductory text fa amended by revising
' 12. InS'l45."56"paragraphldKl) fa- '
amended by revising the words
-including, but not limited to" to read
"which may include.".
13. In S 145.56 paragraph (e) fa
amended by revising the phrase "a
. Tribal request far treatnfent as a Slate-
to read -a Tribe's eligibility".
14. fa S 145.56 paragraph (fl fa revised
to read as follows:
$14S£6. Request by an Indian Tribe tor a
determination o( engibNNy.
*«.
(fjlf the Administrator has previously
determined that a Tribe has met the
prerequisites that make U eligible to
assume a role similar to that of a State
as provided by statute under the Safe
Drinking Water Act. the Clean Water
Act. or the Clean Air Act. then that
Tribe need provide only that
information unique to the Underground
Injection Control program (§ US.76(c)
and
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64346 Federal Register / Vol. 59. No. 239 / Wednesday, December 14. 1994 / Rules and Regulations
requirements" end "for "treatment as a
State;"" -- Y - ' '.."- :
(233.62 {Amended] ... ~
14. The heading of 1 233.62 is
amended by removing the phrase "for
treatment as a State". -
IS. In § 233.62 paragraph (a) is
amended by removing the phrase "for
treatment as a State".
16. In §233;62 paragraphs (b). (c), (d),
and (e) are removed, v v . - :
17. br§ 233.62 paragraph (I) is ',-
redesignated as paragraph (b),
PART 501 STATE SLUDGE . .
MANAGEMENT PROGRAM : ;
REGULATIONS^ v ; : - . "
1. The 'authority dtiition'Ibf pait 501--.
continues to read as follows: ...- *. '
§501.11 [Amended] v- . -"
2. In i 501.11 (aKDremove (he phrase
"eligible for treatment as a state" and
revise the text "§ S01.24(e)" to read
"§501.24(b)".
3.-to §501.1 l(b}(2) remove the phrase
"for treatment as a State" both times it
appears and revise the text "§ S01.24(e)"
toread"S501.24(b)".
J 601.1 2 [Amended]
4. m§S01.12(g} remove the phrase
"for treatment as a State" and revise the
text "$ 50U4(er to read "§ 50i.24(br.
$501.22 {Amended]
5. The heading of 5 501.22 is amended
by revising the phrase "for treatment of
Indian Tribes as States" to read "for
eligibility of Indian Tribes."
6. In § S01.22 paragraph (a)
introductory text is amended by
removing the phrase "a State for
purposes of making the Tribe."
7. In § 501.22 paragraph (a)(4) is
amended by removing the last two
sentences.
$501.23 [Amended]
8. The heading of $ 501.23 is amended
by removing the phase "for treatment
as a State".
9, In § 501.23 the introductory text is
amended by removing the phrase "for
treatment as a State.*1 ~
- 10. In §501.23 paragraph (b) "
introductory text is amended by revising
the word VshaU" to read "should/*
- 11. In § 501.23 paragraph (c) is
amendedfy revising the phrase "a copy
of all documents" to read "copies of
-those documents" andbyfevisiilg the'
phrase ''support the Tribe's assertion"
to read "the Tribe believe* ate relevant '
to its assertion;" ' .''' .".* ''' '?".- - ,
12. in S 501.23 paragraph-Id)' -> " .; *
intrbdubtory4e*t i^amended by revising
the word *AH '
13; In S 501.23 paragraph {d)(l)'is
amended by revising the words
"including, but not Umited to" to read
"which may Include." "
14. In § 501.23 paragraph (e) Is
amended by revising the phrase "a
Tribal request for treatment as a State'1
to read "a Tribe's eligibility." *
15. In $ 501.23 paragraph (f) is revised
' to read as follows:
$501.23 Request by an Indian Tribe for a
determination of eligibility.
' (fjlftiie Administratotorhet
.delegatee has previously determined
that a Tribe has met the prerequisites
; that make it eligible to assume a role
similar to that of a state as provided by
statute under the. Safe Drinking Water .
Act the.Clean Water Act. or the Clean
. Air Act. then that Tribe need provide
only that information unique tathe
sludge management program which is
requested by the Regional
Administrator. '
$501.24 [Amended]
16. The heading of S 501.24 is
amended by removing the phrase "for
treatment as a State."
17. In § 501.24 paragraph (a) is
amended by removing the words "for
treatment as a State." . .
18. In § 501.24 paragraphs (b), (c). jd). ,
and (e) are removed and paragraph (fXli
redesignated as paragraph (b).
{FR Doc M-40401 Filed 12-13-W; B:4S am)
coot ei« IP f
DEPARTMENTtF COMMERCE
National Oceanic and Atmospheric
AdffllniatraHon
SO.CFR Parts 611,675, and 676
[Docfcat NO.M1241-4341; LD. 112394B]
Foreign Fishing; Groundflsh Fishery of
In* Baring Sea and Aleutian Islands;
Limited Access Management of
Federal Fisheries In and OH of Alaska
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Interim 1995 specifications of
groundfish. associated management
measures, and closures. .
SUMMARY: NMFS issues interim 1995
initial total allowable catches (ITACsf
. for each category of groundfish and;'
specifications foi prohibited species
bycatch allowances for theground^h1
. fishery of the Bering Sea and Aleutian'
~ Islands-management area (BSAf). NMFS
is also closing specified fisheries
consistent with the interim 1995
groundfish specifications. The intended
effect is to conserve and manage the
groundfish resources hi the BSAI.
EFFECTIVE DATE: January 1.1995. until
the effective date of the final 1995 initial
specifications. :
ADDRESSES: The preliminary 1995 Stock
Assessment and Fishery Evaluation
(SAFE) Report may be requested from
the North Pacific Fishery Management
Council, P.O. Box.103136. Anchorage,
AK99510,907-271^809 ;.-
FOR FURTHER WFORMATKW CONTACT:.
Ellen R. VarbstNMFSi 907-586-7228
SUPPLEMENTARY ^FORMATION: '
Groundfish fisheries in the BSAI are
governed by Federal regulations (50 CFR
611.93 end-parts 675 and 676) that
implement the Fishery Management
Plan for the Groundfish Fishery of the
Bering Sea and'Aleutian Islands Area
(FMP). The FMP was prepared by the -
North Pacific Fishery Management
Council (Council) and approved by
NMFS under the Magnuson Fishery .
Conservation and Management Act.
The FMP and implementing
regulations require NMFS. after
consultation with the Council, to
specify for each calendar year the total
allowable catch (TAG) for each target
spedes and the "other species" category
(S 675.20UX2)), Regulations under
$675.20(a)(7Xt) further require NMFS to
publish and solicit public comment on
amounts, of .proposed-annual TACs and
ITACs for each target Tpedes. '
apportionments of each TAG. prohibited
species catch (PSQ allowances under
§ 675.2l(b), and seasonal allowances of
pollock TAC The Council, at its
September 1994 meeting, based on the
recommendations of its Scientific and
Statistical Committee (SSQ and other
information, approved preliminary
initial specifications for 1995. as
detailed below NMFS is publishing
these specifications in today's proposed
rule section of the Federal Register
Preliminary TAC Specifications
The Council developed its TAC
recommendations (Table 1) based on the
preliminary acceptable biological
catches (ABCs)as adjusted for other
biological and sodoeconomic
lerationsV including maintaining
the total TAC in the required optimum
yield range<>f 1:4-2.0 million metric
tons (mt).Eachof the Council'*,
reoommended,TAC« for 1995 is equal to
BC for each
,T>IMFS Ends
' " *
cottsIsienr.VrHnifie biological condition
-------
Wednesday
March 23, 1994
Part III
Environmental
Protection Agency
40 CFR Parts 35 and 130
Indian Tribes: Eligibility of Indian Tribes
for Financial Assistance; Final Rule
-------
13814 . Federal Register Vol. 59. No. 56 . VVeonesday. Marcn 33. 1994 Rules and Regui
auons
ENVIRONMENTAL PROTECTION
AGENCY
140 CFR Parts 38 and 130 --
[FHL-472B-5]
Indian Tribes: Eligibility of Indian . -
Tribes for Financial Assistance
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Amendments to interim final
rule.
SUMMARY: The Clean Wtter Act contains
provisions'which authorize EPA to treat
Indian tribes in substantially the same
manner in which it mats states for
purposes of various types of financial
assistance. This action contains
amendments to the interim final
regulations implementing that authority
for financial assistance programs. Toe
purpose of these regulatory amendments
is to make it easier for tribes to obtain
EPA approval to assume the role
Congress envisioned for them under this
statute.
EFFECTIVE DATES: The amendments, to
the interim final rule are effective March
23.1994. EPA will accept comments on
these amendments until May 23.1994.
ADDRESSES: Comments must be mailed
(in duplicate, if possible) to C Marshall
.Cain. Office of Federal Activities (A-
) 104). Environmental Protection Agency,
401 M Street. SW.. Washington. DC.
20460.
The docket for this rule and copies of
the public documents submitted will be
available for public inspection and
copying at a reasonable fee at EPA
Headquarters Library, Public
Information Reference Unit, room 2904.
401 M Street, telephone (202) 260-5926.
FOR FURTHER INFORMATION CONTACT: C
Marshall Cain. Office of Federal
Activities. U.S. Environmental
Protection Agency. 401M Street. SW..
Washington DC 20460, telephone (202)
260-6792.
SUPPLEMENTARY INFORMATION: This
preamble is organized according to the
following outline:
I. Introduction
tl. Regulations Governing Eligibility of Indian
TribM
A. Tb« Existing Process
1. Recognition and a Government
2. JuiwdictioQ and Capability
3. Comment Process
4. Subsequent Tribal Applications
B. Workgroup Examination of Process
ifl. Revisions to the Praoetf la Light of
Statutory Requirements
A. Simplified Determination as To
Recognition and Government
B. Gas* by Case Review of Jurisdiction and
Capability
I. Simplified [urifdictiorul Analysis
2. Capability
IV. Summary of Revised Process
V. Executive'Order 12866
VI. Regulatory Flexibility Act
VII. Paperwork Reduction Act
I. Introduction: Statutory and
Regulatory Background
Under its American Indian Policy,
EPA works directly with tribal
governments as "sovereign entities with
primary authority and responsibility for
the reservation populace." At the time
the Policy was adopted in 1984, the
environmental statutes which EPA
administers generally did not explicitly
address the role of tribes in
environmental management, but
provided for a joint state and federal
role in environmental management.
Subsequently, three EPA regulatory
statutes have been amended to address
the tribal role specifically by
authorizing EPA to treat tribes in a
manner similar to that in which it treats
states: the Clean Water Act (CWA). the
Safe Drinking Water Act (SDWA), and
the Clean Air Act (CAA).i
EPA recognizes that tribes are
sovereign nations with a unique legal
status and a relationship to the federal
government that is significantly
different than that of states. EPA
believes that Congress did not intend to
alter this when it authorized treatment
of tribes "as States;" rather, the purpose
of the statutory amendments was to
reflect an intent that, insofar as possible,
tribes should assume a role in
implementing the environmental
statutes on tribal land comparable to the
role states play on state land.
All three regulatory statutes specify
that, in order to receive such treatment
a tribe must be federally recognized and
possess a governing body carrying out
substantial duties and powers. 33 U.S.C
1377 (e). (h) (CWA); 42 U.S.C 300J-11
(SDWA); 42 U.S.C 7601(d) (CAA). In
addition, although there are some
variations in language among the three
statutes, each requires that a tribe
possess civil regulatory jurisdiction to
carry out the functions it seeks to
exercise.' Finally, all three require that
i [n addition, the Comprehensive Environmental
Response. Compensation, and Liability Act
(CERCLA or -Superfund"). which is primarily t
response, nlher thu a refulstory statute, has also
been amended to authorise EPA 10 treat tribal
governments In substantially the HIM way It treats
stale* with respect to selaciad provision* o( the
statute.
' Under the Clean Water Act. ih« tribe muit
propose to cany out function* that "pertain to the
management and protection of water resources
which an held by an lodlaa tribe, bald by the
United Statea 1st trust br Indiana, held by a member
at an Indian tribe if such property Interest is subject
to a mist restriction on alienation, or otherwise
a tribe be reasonably expected to be
capable of cam-ing out those functions.
The Agency initially chose to
implement provisions of the Clean
Water and Safe Drinking Water Acts
regarding Indian tribes by establishing a
formal prequalification process under
which tribes can seek eligibility under
these statutes. This prequalification
process has in the past been referred to
as approval for "treatment as a state"
("TAS"). Tribes that obtain such
approval then become eligible to apply
for certain grants and program approvals
available to states.)
n. Regulations Governing Eligibility of
Indian Tribe*
A. The Existing Process
The Agency has promulgated five
regulations that utilize the "TAS"
process to date: (1) Safe Drinking Water
Act National Drinking Water
Regulations and Underground Injection
Control Regulations for Indian Lands. 53
FR 37395 (September 26,1988). codified
at 40 CFR parts 35.124.141.142.143
144.145. and 146; (2) Indian Tribes:
Water Quality Planning and
Management. 54 FR 14353 (April 11.
1989). Comprehensive Construction
Grant Regulation Revision. 55 FR 27092
(June 29.1990) (governing grant
programs under the CWA). codified at
40 CFR parts 35 and 130; (3)
Amendments to the Water Quality
Standards Regulation that Pertain to
Standards on Indian Reservations, 56 FR
64876 (December 12,1991). codified at
40 CFR part 131: (4) Clean Water Act.
section 404 Tribal Regulations. 58 FR
8171 (February 11.1993). codified at 40
CFR parts 232 and 233; and (5)
Treatment of Indian Tribes as States for
Purposes of sections 306.309. 401. 402.
and 405 of the Clean Water Act
("NPDES") Rule. 56 FR 67966
(December 22.1993). codified at 40 CFR
parts 122.123.124 and 501.
within the harden of u Indian retarvwion." 33
U.S.C. t3T7(eX«. Under the Clean Air Act. -the
function* to be exercised by (he Indian tribe (must!
pertain to the management and protection of air
resources within the exterior boundaries of the
isolation or other areas within the tribe's
jurisdiction.- 42 US.C. 7601(dN2KB). Under the
SOW A. the tribe must propose M exercise functions
-within the area of the Tribal Government's
jurisdiction." 42 U.S.C MOf-u (bXiKBL
> By contrast, the prevision of CERCLA
auihorizinf EPA to afford a tribal government
"substantially the saaa treatment u a Stale" does
not establish any specific criteria a tribe BUM meat
to qualify far such treatment. 42 US.C. MM. EPA
baa established, by refutation, the criteria of
recognition, a government, and jurisdiction, but has
not adopted a fennel prequaU&catioo process under
CeMXA. Sea 40 CFR JOO.SlS(b). The Agency is
developing refutations pertaining to the treatment
of American Indian tribes under the Clean Air Act.
-------
Federal Register Voi. 59. No 56 Wednesday. March :3. 1394 R^.c^ sr.cRr-j-.u'..:.-.- 13815
Under all of these regulations, before
a tribe can obtain financial assistance
available to states or obtain approval to
operate a program which states are
authorized to operate on state lands, the
tribe must tirst formally qualify for
treatment as a state." To qualify.,a.tribe
must submit an application establishing
that it is federally recognized, has a
governing body carrying out substantial
duties and powers, and has adequate
jurisdiction and capability to carry out
the proposed activities. Once a tribe
obtains "TAS" approval, it is eligible to
apply for financial assistance and
program approval.
1. Recognition and Government
A tribe typically establishes
recognition by showing its inclusion on
the list of federally recognized Tribes
published by the Secretary of the
Interior in the Federal Register. A tribe
establishes that it meets the
governmental duties and powers
requirement with a narrative statement
describing the form of the tribal
government and the types of functions
it performs, and identifying the sources
of the tribe's governmental authority.
2. jurisdiction and Capability
To establish jurisdiction under the
CWA grant regulations, a tribe must
submit a statement signed by a tribal
legal official explaining the legal basis
for the Tribe's regulatory authority over
its water resources. The CWA grant
regulations do not require that a tribe
submit any specific materials to
establish capability.
The other regulations specify that a
tribe must submit various specific
documents to establish jurisdiction.
including: a map or legal description of
the area over which the tribe claims
jurisdiction; a statement by a tribal legal
official describing the basis, nature, and
subject matter of the tribe's jurisdiction;
copies of all documents supporting the
jurisdictionai assertions; and a
description of the locations of the
systems or sources the tribe proposes to
regulate. Similarly, to establish
capability a tribe must submit a
narrative statement describing tribal
capability to administer an effective
program, and certain specific, listed
materials in support of that statement.
3. Comment Process
Upon receiving a "TAS" application
under these regulations. EPA notifies all
"appropriate governmental entities." *
as to the substance of and basis for the
junsdictional assertions in the
application, and invites comment on
those assertions. Where comments raise
a competing or conflicting junsdictional
claim, the Agency must consult with the
Department of the Interior before
making a final decision on the tribe's
application.
Ln practice, this comment process has
sometimes led to delays in the
processing and approval of tribal
applications. Indeed, it has proven to be
the single portion of "TAS" review most
responsible for delays. The comment
process also has created a perception
lihat states have an oversight role in
EPA's treatment of Indian tribes, which
isome tribes find objectionable.
particularly since tribes have typically
iaot been asked to offer their views on
«he scope and extent of state
jurisdiction.
4. Subsequent Tribal Applications
The regulations require a separate
"treatment as a state" application for
each program for which the tribe seeks
such treatment. However, after an initial
approval, applications for each
additional program need provide only
that additional information unique to
the additional program.
B. Workgroup Examination of Process
The Agency's "TAS" prequalification
process has proven to be burdensome,
time-consuming and offensive to tribes.
Accordingly, in 1992 EPA established a
working group to focus on ways of
improving and simplifying that process.
The Agency formally adopted the
Workgroup's recommendations as
Agency policy by Memorandum dated
November 10.1992. That Memorandum
explicitly recognized that the policies it
adopted would require amendments to
existing regulations. The purpose of this
regulation is to amend existing financial
assistance regulations under the Clean
Water Act in order to implement the
new policy. To the extent possible, the
Agency plans to use the same process in
future regulations regarding
determinations of tribal eligibility.
III. Revisions to the Process in Light of
Statutory Requirements
No statute compels the use of a formal
"TAS" or other prequalification process
separate from approval of the
underlying request for a grant or
«The Af*ncjr defines this to include contiguous
states, other tribe*. and federal land agencies
responsible for management of lands eonti|uoui to
the reservation. (Aimndmtots to the Water Quality
Standards Regulation thai Pertain to Standard* on
Indian Reservation!; Final Rule. S6 FR 64875.
64M4 (December 12.1*81)1. tn response to public
comment*. EPA has considered, but decided
against, providing interested political subdivisions
o( stales, including local governments and water
districts, the opportunity lo comment on tribal
junsdictional assertions. Id.
program approval. The only
requirements imposed by sistute are
that, to be eligible for financial
assistance and/or program
authorization, a tribe must be federal!*.
recognized, have a governing body
carrying out substantial duties and
powers, and have adequate jurisdiction
and capability to carry out the proposed
activities. Thus. EPA may authorize a
tribal program or grant without formally
designating the tribe as "eligible for
TAS." so long as the Agency establishes
that the tribe meets applicable statutory
requirements. In other words, the
Agency can ensure compliance with
statutory mandates without requiring
tribes to undergo a discrete, formal
process of seeking "TAS" approval.
Accordingly, EPA is amending its
regulations to eliminate "TAS" review
as a separate step in the processing of
a tribal application for a grant. Under
the new, simplified process, the Agency
will ensure compliance with statutory
requirements as an integral pan of the
process of reviewing grant applications.
To the extent that this rule or preamble
conflicts with the language of previous
rules and preambles, the language
herein shall be controlling. EPA will
also, as far as possible, discontinue use
of the term "treatment as a state:"
however, since this phrase is included
in several statutes, its continued use
may sometimes be necessary.
A. Simplified Determination as to
Recognition and Government
As a general rule, the recognition and
governmental requirements are
essentially the same under the Clean
Water and Safe Drinking Water Acts.
The new process will reflect this by
establishing identical requirements for
making this showing under each statute.
Moreover, the fact that a tribe has met
the recognition or governmental
functions requirement under either of
the Water Acts will establish that it
meets those requirements under both
statutes. To facilitate review of tribal
applications. EPA therefore requests
that tribal applications inform EPA
whether a tribe has been approved for
"TAS" (under the old process) or
deemed eligible to receive funding or
authorization (under the revised
process) for any other program.
A tribe that has not done so may
establish that it has been federally
recognized by simply stating in its grant
or program authorization application
that it appears on the list of federally
recognized tribes that the Secretary of
the Interior publishes periodically in the
Federal Register. If the tribe notifies
EPA that it has been recognized but
does not appear on this list because the
-------
13816 federal Register
/ Vol. 59. No. 56 / Wednesday. March 23. 1994 ' Rules and Regulations
list has not been updated. EPA will seek
to verify the fact of recognition with the
^Department of the Interior. -
r A tribe that has not yet made its
initial governmental showing can do so
by certifying that It has a government .
carrying out substantial governmental
functions. A tribe will be able to make
the required certification If it is
currently performing governmental
functions to promote the public health.
safety, and welfare of its population.
Examples of such functions include, but
are not limited to. levying taxes,
acquiring land by exercise of the power
of eminent domain, and exercising
police power. Such examples should be
included in a narrative statement
supporting the certification. (1)
Describing the form of tribal government
and the types of essential governmental
functions currently performed, and (2)
identifying the legal authorities for
performing those functions (e.g., tribal
constitutions or codes). It should be
relatively easy for tribes to meet this
requirement without submitting copies
of specific documents unless requested
to do so by the Agency.
B. Case by Cast Review of Jurisdiction
and Capability
A tribe may have jurisdiction over.
and capability to carry out. certain
.. ... *_ tAaJ,^* Jkf »UA ««**
ctiviti'esTe.g'. protection of the quality
' of a particular lake for the Clean Lakes
program under the Clean Water Act],
but not others (e.g.. waste management
on a portion of the reservation far
removed from any lakes). For this
reason. EPA believes that the Agency
must make a specific determination that
a tribe has adequate jurtsdicUonal
authority and administrative and
programmatic capability before it
approves each tribal program. This will
ensure that tribes meet the statutory
requirements Congress has established
as prerequisites to tribal eligibility for
each particular program.
1. Simplified Jurisdictional.Analysis
The portion of the Jurisdictional
determination under which
governments comment on tribal
jurisdiction will be substantially altered
under this Rule. These changes an
outlined below.
Comments will no longer be sought
from "appropriate governmental
entities" with regard to tribal grant
applications. The Agency now has
extensive experience awarding grants to
tribes and is capable of evaluating tribal
grant applications to ensure that a tribe
has adequate jurisdiction to receive
grants.
A separate 'TAS" Jurisdictional
review is not needed to verify that a
tribe meets the statutory Jurisdictional
requirement. This change will have the
effect only of eliminating duplicative
requirements.
Finally, the Agency notes that certain
issues concerning tribal jurisdiction
may be relevant to a tribe's authority to
conduct activities. For example, if a
tribe and a state or another tribe
disagree as to the boundary of a
particular tribe's reservation, each time
the tribe seeks to assert authority over
the disputed area, the dispute will
recur. The Agency recognizes that its
determinations regarding tribal
jurisdiction apply only to activities to be
carried out within the scope of the
grant However, it also believes that.
once it makes a Jurisdictional
determination in response to a tribal
application regarding any EPA program.
it will ordinarily make the same
determination for other programs unless
a subsequent application raises different
legal issues. Thus, for example, once the
Agency bas arrived at a position
concerning a boundary dispute, it will
not alter that position in the absence of
significant new factual or legal
information.
Under the new approval process, as
under the old, the Agency will continue
to retain authority to limit its approval
of a tribal application to those land
anas where the tribe has demonstrated
jurisdiction. This would allow EPA to
approve the portion of a tribal
application covering certain areas, while
withholding approval of the portion of
an application addressing those land
areas where tribal authority has not
been satisfactorily established. See. e.g.,
53 FR 37395.37402 (September 26.
1988) (SOWA); 54 FR 14353,14355
(April 11,1989) (Clean Water Act
Grants); 54 FR 39097. 39102 (September
12.1989) (Clean Water Act Water
Quality Standards); 58 FR 8171,8176
(February 11.1993) (Clean Water Act
section 404); 58 FR 67966.67972 (Clean
Water Act NPDES) (December 22.1993).
2. Capability
EPA must continue to make a separate
determination of tribal capability for
each program for which it approves a
tribe. However, the Safe Drinking Water
Act. Water Quality Standards, and
section 404 regulations would be
amended to conform to the CWA grant
regulations, which do not specifically
prescribe the material a tribe must
submit to establish capability.
Ordinarily, the inquiry EPA will make
into the capability of any applicant,
tribal or state, for a grant or program
approval would be sufficient to enable
the Agency to determine whether a tribe
meets the statutory capability
requirement. See. e.g.. 40 CFR part 3i
(grant regulations applicable to stales
and tribes): 40 CFR 142.3 (Public Water
System primary enforcement
responsibility requirements at parts 141.
142 apply to tribes); 145.l(h)
(Underground Injection Control
requirements of parts 124.144.145, and
146 that apply to states generally apply
to tribes).
Nevertheless. EPA may request that
the tribe provide a narrative statement
or other documents showing that the
tribe is capable of administering the
program for which it is seeking
approval. In evaluating tribal capability.
EPA will consider (1) The tribe's
previous management experience; (2)
existing environmental or public health
programs administered by the tribe; (3)
the mechanisms in place for carrying
out the executive, legislative and
judicial functions of the tribal
government; (4) the relationship
between regulated entities and the
administrative agency of the tribal
government which will be the regulator:
and (5) the technical and administrative
capabilities of the staff to administer
and manage the program.
EPA recognizes that certain tribes may
not have substantial experience
administering environmental programs:
a lack of such experience will not
preclude a tribe cram demonstrating
capability, so long as it shows that it has
the necessary management and
technical and related skills or submits a
plan describing how it will acquire
those skills.
IV. Summary of Reviaed Process
Under the new process, tribes will
continue to seek grants under the
authority of statutes authorizing EPA to
treat eligible tribes in a manner similar
to that in which it treats states. For
instance, tribes seeking approve! of an
NPDES or Wetlands permits program
will comply with the applicable
provisions of 40 CFR parts 123 or 233.
However, tribes will now generally be
required to submit only a single
application to demonstrate eligibility for
the grant, without the need for a
separate application for "TAS." EPA
will verify that the tribe meets all
statutory prerequisites for eligibility in
the process of reviewing the single tribal
application.
EPA believes that the changes
outlined in this notice will simplify and
streamline the process of assessing tribal
eligibility while still ensuring full
compliance with all applicable statutes.
The Agency expects that the new
process will reduce the burdens and
barriers to tribes of participating in
environmental management.
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federal Register / Vol. 59. No. 56 / Wednesday. March 23. 1994 / RUI-JS ar.c Reg
-------
13818 Federal Register / Vol. 59. N'o. 56 / Wednesday. March 13. 1994 / Rules and Regulancr.'i
treated as a State" to read "eligible
Indian Tribe".
$130.8 i
2. Section 130.6(d) introductory text
and by removing the paragraph
designation "(a)" from the remaining
text.
{130.15 (Amended]
3. Section 130.15 is amended b-
revising the phrase "for treatment as a
State" in the heading to read "for Indian |FR Doc. 94-6382 Filed 3-22-94; 8:45 im|
is am7ndeWd"bVrevis"ing"the'phrase "m"ay tribes": by removing the phrase "for M.UHG coot r
be treated as a State" to read "is . . treatment as a State" from paragraph (a);
elig;M," by removing paragraphs (b], (c). and (d);
-------
-------
35"
TRIBAL OPERATIONS COMMITTEE
CHARTER
This charter sets forth the basic operating goals, principles and
operating procedures for the TOC
MISSION STATEMENT ; ;
In a manner consistent with the U.S. Environmental Protection Agency (EPA) Indian Policy, EPA's
trust responsibility, environmental laws, regulations, policies and guidance, the mission of the Tribal
Operations Committee (TOC) is to advance the protection and improve the conditions of Tribal
health and the environment in Indian Country The relationship between TOG ftnd EPA will not
substitute for the govemment-to-governtnent relationship between EPA and Tribal governments.
BACKGROUND
EPA Administrator, Carol M. Browner, convened the first TOC meeting on February 17/1994:; At
this first meeting, tribal representatives of the TOC presented three recommendations: I) Reaffirm
the 1984 EPA Indian Policy and the EPA State/Tribal Concept Paper on jurisdiction; 2) Establish
a National EPA Indian Environmental Office; and 3) Increase funding for tribal environmental
programs. In response to these recommendations. Administrator Browner announced the formation
of an EPA Senior Leadership Team* for tribal operations. The rote of the team was to assist in
developing: (1) strategic planning and budget recommendations; (2) updated implementation
guidance for EPA's Indian policy, and (3) organizational recommendations. The TOC met several
times during 1994 which resulted in the establishment of the American Indian Env'ronmental Office
(AIEO), reafTirmatiori of the 1984 EPA Indian Policy (Attachment 1), and the July 14, 1994 Action
Memorandum (Attachment 2), and increased funding for Indian programs.
'Martha Prothro, Special Counsel on Indian Affairs, and Bill Yellowtail, EPA
Region 8, Regional Administrator, were appointed as co-chairs of the senior
leadership team
-------
PART 1. Goals
The goals of the TOC are to improve EPA environmental programs by
(I)
building tribal environmental capacity and infrastructure to support implementation of on-
going tribal environmental programs;
(2) promoting assumption of federal environmental programs by tribal governments consistent
with federal law where tribes desire to be treated in a manner like a state;
(3) advancing strong environmental protection for all Tribes by developing national
environmental strategies on issues of importance to the Tribes and EPA;
(4) assisting with EPA's development of Indian Program budget priorities and management
functions at every level within EPA;
(5) promoting continued education at every level of EPA on Tribal sovereignty issues, the
principles of Indian law and Tribes as co-regulators;
(6) supporting increased tribal access to EPA programs, funding, technical
assistance, training and information; and
(7)
assisting EPA to develop and maintain open dialogue among Indian Tribes and
EPA
PART 2. Role of the TOC
The TOC, comprised of both EPA Senior Management, including AIEO and Tribal Leaders, who
are EPA's environmentalxxKegulators, will provide input into EPA "operational" decision- making
affecting Indian Country. -
The Tribal representatives of the TOC will be referred to as the Tribal Caucus. The Tribal Caucus
elects their own chairperson, vice-chairperson and secretary from among their member
representatives The Chairperson of the Tribal Caucus serves as the Co-x hair with the Administrator
presiding over the full TOC membership.
The Tribal Caucus will work with EPA work groups, such as the National Indian Work Group
(NTWG), the EPA Indian Attorneys Work Group, etc., by identifying national Indian environmental
policies and issues for discussion and resolution on how EPA can improve their program delivery
and implementation
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The Tribal Caucus will work on a regular basis with the AIEO as it oversees the implementation of
the EPA Indian Policy and develops policy and guidance for EPA to provide environmental
protection for Indian tribes
Individual tribes can put forth issues through their Tribal representative or through a government-to-
government relationship with the EPA. The TOC does not preclude a tribe from exercising their
sovereignty and forming their own relationship with EPA.
The TOC will identify issues to be placed on each meeting agenda, and as necessary develop issue.
papers for consideration of pertinent concerns to the Tribes. Tribal Caucus may assist EPA to
determ ine when broad Tribal input is appropriate rather than just TOO input.
PART 3. Membership ,
Section I, Tribal Representatives
In February 1994, EPA Administrator Carol Browner invited eighteen tribal representatives to serve
on the Tribal Operations Committee. There were two methods by which tribal representatives were
originally confirmed to the Tribal Caucus. Administrator Browner asked the Regional
Administrators to identify the tribal representatives. In some regions, the Regional Administrator
identified and appointed the tribal representatives. la other regions, the Regional Administrators
requested Tribes to delegate their representatives and mese representatives were confirmed by the
Administrator. :
Since the establishment of the Tribal Caucus, the number of tribal representatives to the Tribal
Caucus was increased from 18 to 19 on March 30, 1995, with me addition of^e representative
(Montana) in Region VIII. There are 19 Tribal TOC members from :nine SPA regions. The
regional Tribal representation is as follows: ....;;-.. :f
Region 1 -1 .
Region H-.1 -
Region IV-1
Region V - 2
Region VI-2 .
Region VII - 1
Region VIII - 3 (one member from Montana) : i:i:
Region IX - 4 (one member from Navajo Nation)
Region X - 4 (two members from Alaska)
Tribes in each region will determine the method of selection of representatives and alternates and
EPA Regions will provide assistance to tribes in the selection process.
-------
Notification of appointments or resignations of Tribal representatives to the TOC shall be made by
the Regional Administrator through a letter to the Co-chairs of the TOC and the Director of the
American Indian Environmental Office
TOC membership is limited to federal officials and elected Tribal officials or their designated or
authorized employees.
Regular Attendance All Tribal Caucus representatives and/or their alternates must strive to attend
all meetings on a regular basis. .However, no more than three consecutive meetings can be missed
by any one Tribal Representative or their alternate. Attendance on conference calls is encouraged
by all Tribal Caucus representatives or their .alternates
Alternates. The recognized Tribal representative will inform his or her alternate of any meeting in
which they will be absent or unable to attend. All alternates will have the same voting rights as the
regular Tribal Caucus Representative in the absence of the regular Tribal Caucus Representatives..
Length of Term nf Tribal Caucus Members: The length of term for Tribal Caucus members shall
be determined by the Tribes of the Regions.
Section 2. EPA Membership.
Membership to the TOC shall be composed of the following senior managers:
Administrator
Deputy Administrator
AJEO Director
Chief Financial Officer
Regional Administrator of Lead Region oo Indian Programs
Regional Administrator of Backup Region on Indian Programs
Regional Administrators
Assistant Administrator for Administration and Resource Management
Assistant Administrator, Office of Water
Assistant Administrator, Office of Air and Radiation
Assistant Administrator, Office of Prevention, Pesticide & Toxic Substances
Assistant Administrator, Office of Solid Waste & Emergency Response
AssisOtam Administrator; Office of Enforcement &, Compliance Assurance
Assistant Administrator, Office of Research & Development
Assistant Administrator, Office of Policy, Planning & Evaluation
Assistant Administrator, Office of International Activities
General Counsel
Inspector General
Associate Administrator, Office of Regional Operations & State/Local Relations
-------
Associate Administrator, Office of Congressional & Legislative Affairs .
Associate Administrator, Office of Communication Education & Public Affairs
PART 4. Tribal Caucus Officers
Section 1. The officers of the Tribal Caucus shall be: Chairperson, Vice-Chairperson, and
Secretary.
Section 2. Selection of Officers.
The selection of Officers shall be held every year at a regular meeting of the Tribal Caucus.
Nominations must be made by a Tribal Caucus member mwritiii&G^ a
majority vote of the 19 tribal representatives to the Tribal Caucus. Offic^ jtaU holdoffice for one
year or until their successors are elected. Thirty days advance notice of any pending election and
nominations of officers shall be provided to each Tribal Caucus representative.
Nomination and election processes will be initiated and coordinated by the AIEO in consultation
with the Officers of the Tribal Caucus.
Sections Duties of Tribal Caucus Officers:
(a) Chaiqwson Presides at meetings of the Tribal Caucus and co-chairs TOC
meetings; facilitates consensus of the TOC on national tribal
environmental issues; may convene thei;Trih4Cauc«si!!i:ia. separate
subcommittee from the TOC to accomplish goals and objectives; serves
as ex-officio member of subcommittees and work groups; delegates
issues to smaller work groups of the Tribal Caucus; Facilitates the; consensus of the
Tribai Caucus at EPA Regional and National Indian Workgroup meetings,
participates on various EPA work groups and committees^; :
.(b) VJpeJIhaitpejrson The Via- r.hairpqrson preside* ** n*f*ti*igy in the
absence of the Chairperson, assumes and discharges all the duties of the
Chairperson.
(c) .Secretary Responsible for creating a written record of all meetings and
teleconferences of the Tribal Caucus and discussions of the Tribal Caucus; transmits
this information to EPA and to the Tribal Caucus; may receive assistance from AIEO
to help distribute in a timely manner to the Tribal Caucus members; and may
delegate responsibilities to tribal staff.
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PARTS. Meetings
Section 1. Regular Meetings
Four quarterly meetings will be held, one of which shall be the Annual meeting. The Annual
meeting may be held in conjunction with the Annual Agency Planning Meeting where the Tribal
Caucus members participate in priority setting and budget formulation for the upcoming fiscal year.
Of these four quarterly meetings the full TOC will meet twice, the Tribal Caucus and the NIWG will
meet at least once and the AIEO and the Tribal Caucus will meet as a fourth meeting. AIEO will
provide administrative and technical support to the Tribal Caucus for all meetings.
TOC meetings are solely for the purpose of exchanging views, information or advice relating to
management or implementation of federal programs established pursuant to public law that
explicitly or inherently share intergovernmental responsibilities or administration.
Section 2. Special Meetings.
Special meetings may be called by the Chairperson of the Tribal Caucus or the Director of the AJEO
with concurrence of the Co-chairperson of the TOC
Section 3. Conduct of Meetings
Tribal customs, practices and manner shall govern the order of the meeting for all TOC meetings.
The Tribal Caucus shall strive for consensus decision making as a means to formally establish the
position of the Tribal Caucus.
Section 4. Conference Calls.
AIEO will arrange conference calls for the Tribal Caucus on a regular basis to support Tribal Caucus
activities. ,
PART 6. Quorum .
A majority of the full membership of the Tribal Caucus shall constitute a quorum for all Tiibal
Caucus meetings. The lack of a quorum at a meeting shall not prevent those present from
proceeding with discussions and consensus-building on environmental issues that will affect Tribes.
-------
PART 7. Subcommittees and Work Groups of the Tribal Caucus
The Tribal Caucus may establish subcommittees or work groups, when necessary, to facilitate the
purpose and goals of the Tribal Caucus. EPA representatives may be asked to participate in these
work groups to lend their technical expertise A lead person will be designated to oversee the
subcommittee or work group. The lead person will be responsible for ensuring the group and/or
committee carries out their assigned task and will place the item on the next Tribal Caucus meeting
for discussion and report. The AIEO will communicate all issues and concerns of any
subcommittees or work groups to the fall TOC. The AIEO will coordinate between Tribal Caucus
work groups and EPA work groups undertaking similar activities. . .
PART 8. Amendments
This charter may be amended ata full TOC meeting. Amendments must be accepted by a majority
of the total membership of the Tribal Caucus. Any Tribal Caucus member may propose an
amendment. Any proposed amendment must be submitted in writing 30 days prior to the next
meeting to the Chairperson of the Tribal Caucus to be distributed to all members of the TOC and
placed on the agenda for the next TOC meeting
Part 9. Certification
We hereby certify mat the foregoing Tribal Operations Committee Charter was adopted at a duly
called meeting of the Tribal Operations Committee, held on the 11th day of April, 1996, where a
quorum was present.
Dated this
11
; day of
1996,
Administrator, Environmental Protection Agency
-------
-------
-------
\
-------
-:'- -f*. '
FECTIVE
GOVERNME
Append
ronmental Prote
Training S eminasr
August 1996
J
-------
-------
APPENDIX B
EPA Indian Program Information/Contact Sheets
New England Indian Workgroup (NEIWG)
Spencer Phips Proclamation (1755)
Kezogmomna AlaimihotIndian Prayers
Trade and Intercourse Act (July 22, 1790)
Indian Citizenship Act (June 2, 1924)
Treaty of Ghent (December 24, 1814)
Passamaquoddy Treaties with Massachusetts (February, 1795 and January, 1834)
Termination Policy Acts (House Concurrent Resolution 108, August 1, 1953 and Public
Law 280, August 15, 1953)
Indian Self-Determination and Education Assistance Act (January 4, 1975)
Rhode Island and Maine Indian Land Claims Settlement Acts
Connecticut (Mashantucket Pequot) Indian Land Claims Settlement Act
Massachusetts Indian Land Claims Settlement Act
Mohegan Nation Land Claims Settlement
Water Rights Discussion (Cohen)
The Federal Acknowledgement Process Guidance
Background of United South and Eastern Tribes (USET)
Passamaquoddy Tribal Trust Lands Maps
tb
IV
30
5 - tyv.i',
-------
-------
Penobscot Indian Nation
Old Town, HE
Mashantucket Pequot Tribe
Ledyard, CT
Hohegan Nation
Uncasville, CT
Arooctook Ml owe Council
Pretque Isle, ME
Houlton Band of Malite«t Indians
Houtton, HE
rPa$*aMaquoddy Trite
Indian Township Reservation
Princeton, HE
Passamaquoddy Tribe
Pleasant Point Reservation
Perry, HE
Uampanoag Tribe of Cay Head (Aquimah)
Cay Head, HA
Harragansett Tribe
Charlestown, RI
TRIBAL GOVERNMENT
Narragansett Tribe
Maliseet (Houlton Band)
Passamaquoddy Tribe
Indian Township Government
Passamaquoddy Tribe
Pleasant Point Government
Passamaquoddy Tribe
(Joint Land Holdings)
Penobscot Indian Nation
Mashantucket Pequot **
Wampanoag Tribe
(Aquinnah)
Micmac Tribe
(Aroostook Band)
Mohegan Nation
POPULATION
2150
582
1156
1848
2076
383
801
1159
1185
LAND AREA F.R.
2693 83
804 76
28526 76
2073 76
118978
116028 76
1845.15 83
531.6 87
*875 91
(in Trust Process)
240.5 94
+(83 5 in Trust Process)
1/8/97
TOTALS
11,340
271,719.25
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NEW ENGLAND TRIBES/RESERVATIONS
LAST OPIATED 9/11/SS
(EPA-out) RTPMMNKUB. INTERNET:" address"
I»^:'-->-v..->*^.,?0ft3aia , <,<-
IBHLIGK BAUD or MKUCEET HBXAKS
IMhlt* 3 - Box 4SO
IHPaton, ME 04730
I nan: 207/532-4273 x40
1 1/800/545-8524 IMC: 207/532-2660
KMUUUMMSBTT INDIAN TRIBE
PO Box 268
Chariestown, Rl 02613
PBONS: 401/364-1105
I3kX: 401/3(4-1104
IOC: 401/364-1117
rASSAHAOOODDY TRIBE OF INDIANS
ur-Mi TCMisHxp RESERVATION
PO Box 301
Princeton, ME 0466B
PBONE: 207/796-5635 FAX: 207/796-5256
PASSAHAQOODDY TRIBE OF INDIANS
PLEASANT POINT RESERVATION
PO Box 343
Parry, ME 04667
PHONE: 207/853-2600 FAX: 207/853-6039
PENOBSCOT INDIAN KATION
6 River Rd.
Indian Island Reservation
Old Town, ME 04468
P80HR: 207/827-7776
FAX: 207/827-1137
MASHANTUCKXX PEQ.TOT TRIBAL NATION
Tribal Office
Indian town Rd.- PO Box 3060
Mashantucket, CT 06339-3060
PHONE: 860-572-6740
K X: 860-572-6745
ANOAO TRIBE OF GAY BEAD
lackbrook Road
Gay Head, KA 02535
nONE: 508/645-9265
FAX: 50S/645-3790
AKOOSTOOK BAND OF KICMACS
PO Box 772
Presque Isle, ME 04769
PHONE: 207/764-1972
FAX: 207/764-7667
MACK: 207/764-7219
FAX (MACK and JUDITH) : 207/764-7768
MOHEOAN TRIBB
P.O. Box 488
Uncasville, CT 06382
1 PHONE: 860/848-5600/6100
1 FAX: 860/848-6115
IL
,,,..,,v^~^- * CONTACT^ ' " ' ]
Clair Sabattis, Chief ' I
Environmental Contacts: \
* Sharri Venno, Director of EPA Planning Grant
"env.planning8alnop.com" j
George Hopkins, Chief "c/o Randy Noka, First Councilman"
environmental Contacts:
* Greg Soder, Director of Natural Resources, "GREG*MAIL.BBShET. COM"
Kathy Maxwell. Environmental Specialist
Chris Coutu, Hatlands Specialist; Dinalyn Spears, Biologist
John Stevens, Tribal Governor I
Environmental Contacts:
< Veronica Smith, Tribal Planner, (5611) (on EPA-Groupwise)
Julie Coffin, Water Quality Specialist |
Cliv Dore, Tribal Governor 1
Environmental Contacts: 1
Lt. Gov. Rick Doyle, HEIDIL8NEMAINE.COM-
* Heidi Lsighton, Env. Planner Bill Howard, Env. Engineer, (284) : J
Francis Mitchell, Tribal Governor
Environmental Contacts:
John Banks, Dir. of Natural Resources, (330) [990-2613-h)
Daniel Kuanierz, Water Quality Spec. (361) "PINWRTER8MINT.NET"
Tannia Coffin, Water Resource Planner, (360) ; Wayne Mitchell, L.U.
Richard (Skip) Hayward, Chairman
Environmental Contacts:
"102035.30578compuserv.com"
Jeff Skinner, Asst. Dir. /Natural Resources Protection 1
Valerie Ferry, Compliance Officer [
Beverly Wright, Chairperson j
Environmental Contacts: "NATRES9VINEYARD.NET"
* Matthew Vanderhoop, Director of Natural Resources 1
Philippe Jordl, Planner I
Mary Philbrook, Chief
Environmental Contact: *2123610«mcimail.coBi"
Health Dept./759 Main Street 7219
Mack Ayotte, Administrator; Judith Boudman, Environmental Health 6968
* Fred Corey, Environmental Planner; Tony Murphy, Env. Health Assistant;
Roger Paul, Env. Plan. Assit.
Roland Harris, Tribal Chairman
Environmental Contact:
Dr. Norman Richards 860/848-6112 "Norman RichardseS60848S115"
Melissa Fawcett 860/B4B-6106
* R-TOC: PRIMARY SHVIROJWENTAL CONTACT
Tribal Operations. Strategic Planning. Office of Ecosystem Protection
James G. Sappier (CSP) , Regional Indian Program Manager, 617-565-3935, F-4940, "SAPPIER. JAMES8EPAMAIL. EPA. GOV
Terry Regan (CSP), Regional Indian Program Specialist, 617-565-3529, F-4940, * REGAN. TERRY SEPAMAIL. EPA. GOV"
Darren Ranco (CSP), Tribal Liaison, 611-565-4976, F-3346, -RANCO.DARREN6EPAMAIL.EPA.GOV"
Deborah Falcone {CSP), Env. Tech. Coord. 617-56£.-3428. F-4940, "FALCONE. DEBORAHS EPAMAIL. GOV"
EPA-TRIBE COORPIKATORS:
Kicheal Kenyon(CAA), EPA-pequot Coordinator, 617-&65-3524/F4940, "KENYON.MICHEAL8EPAMAIL.EPA.GOV"
Micheal Kenyon(CAA), EPA-Maliseet Coordinator, 617-565-3524/F4940, "KENYON.MICHEALeEPAMAIL. EPA. GOV"
Jerry Healey(CAA), EPA-Micmac Coordinator, 617-S65-3602/F4940, "HEALEY. JEROMEeEPAMAIt.EPA.GOV"
Jerry Healey(CAA), EPA-Paasamaquoddy I.T. Coordinator. 617-565-3602/F4940, "HEALEY. JEROME? EPAMML. EPA. GOV"
Jerry Healey(CAA), EPA-Passamaquoddy PL.PT. Coordinator, 617-565-3602/F4940, "HEALEY. JEROMES EPAMAIL. EPA. GOV"
Eleanor Kwong(CRI), EPA-Narragansett Coordinator, 617-565-3604/F4940, "KWONG.ELEANORSEPAMAIL.EPA.GOV
EPA-Mohegan Coordinator, 617-5e5-4866/F4940, "SCEERY.MARKSEPAMAIL.EPA.GOV
EPA-Wampanoag Coordinator, 6n-565-348S/F4940, "NUZZO.Wm.IAMeEPAMAIL.EPA.GOV."
Mark Sceery(CCT),
William Nuzzo(CSP)
rry Regan(CSP) EPA-Penobscot Coordinator, 617-565-3529/F4940, "REGAN.TERRY8EPAMAIL.EPA.GOV"
LST
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y
James Sappier
(CSP)
Darren Ranco
(CSP)
Terry Regan
(CSP)
Jerry Healey
(CAA)
Mike Kenyon
(CAA)
Eleanor Kwong
(CRI)
Mark Sceery
(CCT)
Bill Nuzzo
(CSP)
James M. Bryson
(CPT)
Robert Koethe
(CPT)
Eugene Benoit
(CPT)
Mary Beth Smuts
(CPT)
Louise House
(HIO)
Bud Plunkett
(SPP)
Henry Burre11
(MGM)
Paul Trevino
(MGM)
Elizabeth Higgins-
Congram (RAA)
Sharon Wells
(RCA)
Paul Bryan
(CSP)
Joe De Cola
(SPP)
Don Cooke
(CAQ)
Sandra Fancieullo
(CME)
Eric Hall
(SEW)
Tim Williamson
(RCA)
INDIAN WORK GROUP EPA- NEW ENGLAND
KZOION I JIT FB>. BIOO. OHM OOHOBZSS STRUT
BOSTON, MASS. 02203-2211 (KSIWQ-B7) CH9'D12-20-96
Indian Pro
Tribal Operations, SP-OEP
Tribal Liaison
Tribal Operations, SP-OEP
Sec . /Coor-PN
Tribal Operations, SP-OEP
Coor-ABMI. PIT. PPP
Office of Ecosystem Protection
I -Program Coor-HBMI,MP
Office of Ecosystem Protection
I -Program Coordina^or-NIT
Office of Ecosystem Protection
I -Program Coordinahor-MN
Office of Ecosystem Protection
Indian Program Coordinator-WTGH
Office of Environmental Protection
565-3935
565-4976
565-3529
565-3602
565-3524
565-1154
565-4866
565-3485
565-3836
Air, Pesticides and Toxics
Office of Ecosystem Protection
Air. Pesticiid£S and Toxics 565-3491
Office of Ecosystem Protection
Toxics and Radiation Assessment 565-2899
Office of Ecosystem Protection
Toxics and Radiation 565-3232
Office of Ecosystem Protection
ATSDR - Wast& Management 223-5590
Office of Site Remediation & Restoration
Emergency Response 565-9007
Office of Environmental Stewardship
Chief. Grants 565-3839
Office of Administration & Management
Secialist 565-3843
565-3422
565-3445
565-9349
565-3276
565-3508
565-4426
Office of Administration & Management
Environmental Review
Office of Regional Administrator
General Law Office
Office of Regional Counsel
Strategic Planning
Office of Ecosystem Protection
Solid Waste
Office of Solid Waste
Air Quality Planning
Office of Ecosystem Protection
NonPointSpurce Pollution Control
Office of Ecosystem Protection
WaterTechnical 565-3592
Office of Environmental Stewardship
General Law Office 565-9016
Office of Regional Counsel
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Tom Olivier
(SEL)
Molly Magoon
(SEA)
Arthur Clark
(EQA)
Rodney Elloitt
(RAA)
Anne Fenn
(SFF)
Douglas Corb
(CME)
Georgia Bishop
(MHR)
Peg Nelson
(LIB)
Indira Balkissoon
(CPT)
Christine Williams
(HBT)
Norman Willard
(SPT)
Barbara White
(MIO)
Maureen McClelland
(CCT)
Robert Hillger
(RAA)
Mark Stein
(RCA)
Toni Bandowicz
(SEL)
Elissa Tonkin
(SEE)
Robert Adler
(CRI)
Jane Downing
(CMA)
John Hackler
(CCN)
Steve Silva
(CME)
Robert Mendoza
(CRI)
Legal /Regulatory 565-1146
Office of Environmental Stewardship
Air Technical -Mobile 565-3220
Office of Environmental Stewardship
Quality Assurance 860-4374
Office-Env. Measurement & Evaluation
Justice 565-9056
Office of Regional Administrator
Federal Facilities Program 565-3927
Office of Environmental Stewardship
NPDES Permitting 565-4433
Office of Environmental Protection
Human Resources Development 565-9051
Office of Administration & Management
Regional Manager 56.5-3298
Library
ME & VT -_Superf.und Section 573-9123
Office of Ecosystem Protection
Federal Facilities 573-5736
Office of Site Remediation & Restoration
Toxic Assessment /Waste Reduction 565-3702
Office of Environmental Stewardship
Waste Management 573-3525
Office of Administration & Management
Toxologist 565-3543
Office of Ecosystem Protection
Regional Scientist 565-3397
Office of Regional Administrator
Office of Regional Council 56 5 -3169
Legal /Regulatory 565-3316
Office of Environmental Stewardship
ADR Specialist 565-1154
Office of Environmental Stewardship
Ground Water . 565-9306
RI -Off ice of Ecosystem Protection
EPA-Massachusetts 565-4877
State Programs t Multimedia
EPA-Connecticut 565-3564
State Programs & Multimedia
EPA-Maine 565-3519
State Programs & Multimedia
EPA-Rhode Island 565-3575
State Programs & Multimedia
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By Hi. HONOUR
SPENCER P H I P S, Efq;
Lieutenant-Governourand Commander in Chief, in and over Hi* Majcfty'i Province of the Maffacbuftttt-
Boy in Near-England.
A PROCLAMATION.
HEREAS the Tribe of PeaAfttt Indians hare repeatedly in a perfidiotii Manner aded ccn-
trary to thciiiblemnSobnuffionuntoHU Majdly long fince made tnd frequently renewed ;
Ifcatx Amfow, at tfc 3>tCce of tfle 9oute of fitpttrentatfte*, iwt& tfce 2tow« of
fcfs fiBaftttr's Counefl, tbouiflt fit to (Hue tQls taroclamatton, ant to Declare tljc
pcnobfcotXdDtoflnomnstobtcntuiftB, Ktbcls anb Xtattoj* to «(S ^ajtftp
JUno GEORGE the Second: 2UlD "? UO IJtWbp requite ^(S ^aftttp'S S>Ul)|ttt«( of
tD^protoinct totinbratt all Oppojtun(t(ts of piufumg. captibatma, hilling anD o<<
Cto?(naaU ano tDttp of t^e afojtCaiD 3nblan0.
W
the General Court of this Province nave voted that a Bounty or Incou-
ngerocnt be granted and allowed to be paid out of the Fublkk Trcafury/io the marching Forces that {hall
have been employed for the Defence ot the Eajkra and Wtfltrn Frontiers, from the ftrft to the
fftb of thii
I^att ttjouaDt fit to publrfl) tile fatut , anb 3J bo l;trt by \atowiCc, Xljat tljtre Qjall
be parti out oCt^t t$cot)(nce«iCrtarurp to nil ant) nnp of tfte fa(0 jFotccs, ctct ano
aboDe tDetc »ountp upon 3)nl((lmtnt, rye(t CUaocs nuti Siub&ttenct, tlje pvtmliuuB o;
3Bountp folloUJlng, viz.
For every Male Ptrui/cot Indian above the Age of Twelve Years, that dull bo taken within the Time
afottfiud and brought to Jtyfoi, Fifty Pound}.
For every Scalp of a Male Ptaotfctt Indian above the Age aforefaid,hrought in as Evidence of their being
killed a* afore&id, Fertj PeunJt.
For every Female Peatt/iotIndian taken and ^iiooght in as aforefaid,and for every Male Indian Frifoncr
under the Age of Twelve Yean, taken and brought in u afoirfaid, 7w««y-/« Ptundt.
For every Scalp of luch Female Indian or Male Indian under the Age of Twelve Years, that Aiall be
killed and brought in aa Evidence of their being killed as aforcfeid, Tvtntj Peundt,
Giro u the Council-Chamber in fl«/?«, this Third Day of tfnoater 1755. »n«J "l" the Twenty-ninth Yc»r of
the Reign of our Sovereign Lord G110R.GE the Second, by the Grace of GOD of Grtet-Briivu,
Fraut and Inlmj, KING, Dcfendef o? the Faith,
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EZOGMOMNA ALAIMIHOT
THE LORD'S PRAYER
Micmac
Notjinen Oasog epin, tjiptog
teloisin
megitetemeg Oasog ntlHanen,
tjiptog
ignemoieg ola nemoleg
oletesnen. Natel
Oasog eigig teli sgatasgig.
tjiptog
e!p ninen teli sgatoleg
magamigeg
eimeg. Telamogopnigel
esemiegel ap
nige gisgog tfamogtetj ninonal
penegnmoiegel, teli
apigsigtagatjig
oegaioinametjig, ap gil
Nisgamlli
apigsigioin eloeooltieg.
mfgeninmelj
oinsotil mogtigalin
gesinogamgei,
ointjigel gogel tjiglaloin.
Ntliatj.
Passamaquoddy
Nmihtaqs, spomkik eyin,
komac kcitpot k wise won.
Meomite knihkanapeksin.
Tan elipawatomon
mecimite kisi leyic.
skitkimiq nakate spomkik.
Miline pemkiskahk
ntopanom'on.
Onheltomuwine
nlolakmtksowakononnul,
talute nilun eli
onheltomukot tan yuhk
kisi wapoleyowmokot
Wicuhkemine skat
nlowapoli peciyahtiwnewin.
*
Sami kil knihkaneyaw,
kinson, naka komac koolpos.
toke nakale askomiw.
NiyaliC-
Ojlbwa
Nossinan fshpiming fli/igong
ebiiaa
Apegish Mchitwawendaming
kid ijinikasowin.
Apegish bi-dagwishinomagak kid
ogimawrwin.
Enendaman ap«gish i;Kvebak.
tibishko gijigong me go gaie
aking.
Mijishinam nongom gijigak nin
pakwejiganiminan minik eioiang
endasso-gijigak.
Bonigidetawishinam gaie ga-ijt-
nisfikiigoian,
Eji-bonigidetawangidwa gi-iji-
nishkiiiangidjig.
Kego gaie i/iwijistiigangen
gagwedibeningewining.
Midagwenamawishinam dash
maianadak.
Mege-ing.
Maliseet
Kmihiaqson spomkik eyin
komac kcitpot qisuwon;
mecimite knihkanapeksin
tan eli pawatomon.
mecimite kisi leyic skitkomiq
tahalu spomkik.
Miline pemkiskahk ntopanomon;
onheltomuwme
ntoiahkomiksuwakononnul
tahalu nilun eli onheitomuwokot
tan yuth kisi wapoleyuwinomoq;
wicuhkemine skat towapoli,
peciyahtiwnewin.
Sami kil knihkani kinson.
naka kehkcitposiytn,
tokec naka askomiw.
Nitleyic.
Penobscot
BURHURWURBSKEK
ICmitanqs«na. spomkik eyan.
wewsalmoquotcn elrwisian,
amante neghe
petsiwewitawekpane
ketepeltainohanganeck;
eli kiktanguak
ketletamohangan;
spomkik Uili yo nampikik
petchikiktanguatetche.
Mamaline yo pemigfiisgak
ptaskiskue ntaponmena.
yopahatchr aneheldamawihek
kessi kakanwihiolek'pan,
eli nyonakisi
aneheldamalioket
kekanwiaktepanik;
mosak ketali tchikiktawighek
tamambautt^ii
saghihunmihinamlte,
utahamisfke saghehusuhamine
mematchikil.
Nialeic.
MAUSEET-ENGUSH
OUR FATHER, there
in the future woild
very holy is your name;
always be the leader
the way you wanted,
always the way
you wanted on oarth
as in the future world
Give us today our bread;
forgive us the sins
we keep on doing
just as we the way forgive
those who did hurt
our feelings;
help us not to do wrong
deliver us from evil.
For you are the mcst powerful
and the holiest.
now and forever
Amen
JJP
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Treaty Series, No. 109
8 Sututu »t Large, 21S-23
33
GREAT BRITAIN : DECEMBER 24, 1814
Th« Treaty of Ghent. Treaty of Peace and Amity, signed at Ghent
December $4, 1814- Original in English.
Submitted to the Senate February 16,1815. Resolution of advice and
consent February 16, 1816. Ratified by the United States February
17, 1815. Ratified by Great Britain December 31, 1814. Ratifica-
tions exchanged at Washington February 17, 1816. Proclaimed
February 18, 1815.
Treaty of Peace and Amity between His Britannic Majesty
and the United States of America.
His Britannic Majesty and the United States of America desirous
of terminating the war which has unhappily subsisted between the two
Countries, and of restoring upon principles of perfect reciprocity,
Peace, Friendship, and good Understanding between them, have for
that purpose appointed their respective Plenipotentiaries, that is to
say, His Britannic Majesty on His part has appointed the Right
Honourable James Lord Gambier, late Admiral of the White now
Admiral of the Red Squadron of His Majesty's Fleet; Henry Goulburn
Esquire, a Member of the Imperial Parliament and Under Secretary
of State; and William Adams Esquire, Doctor of Civil Laws: And the
President of the United States, by and with the advice and consent of
the Senate thereof, has appointed John Quincy Adams, James A.
Bayard, Henry Clay, Jonathan Russell, and Albert Gallatin, Citizens
of the United States; who, after a reciprocal communication of their
respective Full Powers, have agreed upon the following Articles.
ARTICLE THE FIRST.
There shall be a firm and universal Peace between His Britannic
Majesty and the United States, and between their respective Coun-
tries, Territories, Cities, Towns, and People of every degree without
exception of places or persons. All hostilities both by sea and land
shall cease as soon as this Treaty shall have been ratified by both
parties as hereinafter mentioned. All territory, places, and posses-
sions whatsoever taken by either party from the other during the war,
574
-------
Great Britain: 1814
575
or which may be taken after the signing of this Treaty, excepting
only the Islands hereinafter mentioned, shall be restored without
delay and without causing any destruction or carrying away any of the
Artillery or other public property originally captured in the said forts
or places, and which shall remain therein upon the Exchange of the
Ratifications of this Treaty, or any Slaves or other private property;
And all Archives, Records, Deeds, and Papers, either of a public
nature or belonging to private persons, which in the course of the war
may have fallen into the hands of the Officers of either party, shall be,
as far as may be practicable, forthwith restored and delivered to the
proper authorities and persons to whom they respectively belong.
Such of the Islands in the Bay of Fassamaquoddy as are claimed by
both parties shall remain in the possession of the party in whose
occupation they may be at the time of the Exchange of the Ratifica-
tions of this Treaty until the decision respecting the title to the said
Islands shall have been made in conformity with the fourth Article of
this Treaty. No disposition made by this Treaty as to such possession
of the Islands and territories claimed by both parties shall in any
manner whatever be construed to affect the right of either.
ARTICLE THE SECOND.
Immediately after the ratifications of this Treaty by both parties
as hereinafter mentioned, orders shall be sent to the Armies, Squad-
rons, Officers, Subjects, and Citizens of the two Powers to cease from
all hostilities: and to prevent all causes of complaint which might
arise on account of the prizes which may be taken at sea after the
said Ratifications of this Treaty, it is reciprocally agreed that ail
vessels and effects which may be taken after the space of twelve days
from the said Ratifications upon all parts of the Coast of North
America from the Latitude of twenty three degrees North to the
Latitude of fifty degrees North, and as far Eastward in the Atlantic
Ocean as the thirty sixth degree of West Longitude from the Meridian
of Greenwich, shall be restored on each side:that the time shall be
thirty days in all other parts of the Atlantic Ocean North of the
Equinoctial Line or Equator:and the same time for the British and
Irish Channels, for the Gulf of Mexico, and all parts of the West
Indies:forty days for the North Seas for the Baltic, and for all parts
of the Mediterranean:sixty days for the Atlantic Ocean South of
the Equator as far as the Latitude of the Cape of Good Hope:
ninety days for every other part of the world South of the Equator,
and one hundred and twenty days for all other parts of the world
without exception.
t, :
»*>
-------
576
Document S3
ARTICLE THE THIBD.
All Prisoners of war taken on either side as well by land as by sea
shall be restored as soon as practicable after the Ratifications of this
Treaty as hereinafter mentioned on their paying the debts which they
may hare contracted during their captivity. The two Contracting
Parties respectively engage to discharge in specie the advances which
may have been made by the other tor the sustenance and maintenance
of such prisoners.
ARTICLE THE FOURTH.
Whereas it was stipulated by the second Article in the Treaty of
Peacel of one thousand seven hundred and eighty three between His
Britannic Majesty and the United States of America that the bound-
ary of the United States should comprehend "all Islands within
twenty leagues of any part of the shores of the United States and
lying between lines to be drawn due East from the points where the
aforesaid boundaries between Nova Scotia on the one part and East
Florida on the other shall respectively touch the Bay of Fundy and
the Atlantic Ocean, excepting such Islands as now are or heretofore
have been within the limits of Nova Scotia," and whereas the several
Islands in the Bay of Passamaquoddy, which is part of the Bay of
Fundy, and the Island of Grand Menan in the said Bay of Fundy, are
claimed by the United States as being comprehended within their
aforesaid boundaries, which said Islands are claimed as belonging to
His Britannic Majesty as having been at the time of and previous to
the aforesaid Treaty of one thousand seven hundred and eighty three
within the limits of the Province of Nova Scotia: In order therefore
finally to decide upon these claims it is agreed that they shall be
referred to two Commissioners to be appointed in the following man-
ner: viz: One Commissioner shall be appointed by His Britannic
Majesty and one by the President of the United States, by and with
the advice and consent of the Senate thereof, and the said two Com-
missioners so appointed shall be sworn impartially to examine and
decide upon the said claims according to such evidence as shall be
laid before them on the part of His Britannic Majesty and of the
United States respectively. The said Commissioners shall meet at
Sf Andrews in the Province of New Brunswick, and shall have power
to adjourn to such other place or places as they shall think fit. The
said Commissioners shall by a declaration or report under their hands
and seals decide to which of the two Contracting parties the several
1 Document II.
-------
Great Britain: 1814
577
Islands aforesaid do respectively belong in conformity with the true
intent of the said Treaty of Peace of one thousand seven hundred and
eighty three. And if the said Commissioners shall agree in their
decision both parties shall consider such decision as final and conclu-
sive. It is further agreed that in tho event of the two Commissioners
differing upon all or any of the matters so referred to them, or in the
event of both or either of the said Commissioners refusing or declining
or wilfully omitting to act as such, they shall make jointly or sepa-
rately a report or reports as well to the Government of His Britannic
Majesty as to that of the United States, stating in detail the points
on which they differ, and the grounds upon which their respective
opinions have been formed, or the grounds upon which they or either
of them have so refused declined or omitted to act. And His Britan-
nic Majesty and the Government of the United States hereby agree
to refer the report or reports of the said Commissioners to some
friendly Sovereign or State to be then named for that purpose, and
who shall be requested to decide on the differences which may be
stated in the said report or reports, or upon the report of one Commis-
sioner together with the grounds upon which the other Commissioner
shall have refused, declined or omitted to act as the case may be.
And if the Commissioner BO refusing, declining, or omitting to act,
shall also wilfully omit to state the grounds upon which he has so
done in such manner that the said statement may be referred to such
friendly Sovereign or State together with the report of such other
Commissioner, then such Sovereign or State shall decide exAarte
upon the said report alone. And His Britannic Majesty and the
Government of the United States engage to consider the decision
of such friendly Sovereign or State to be final and conclusive on all the
matters so referred.
ARTICLE THE FIFTH.
Whereas neither that point of the Highlands lying due North from
the source of the River S> Croix, and designated in the former Treaty
of Peace1 between the two Powers us the North West Angle of Nova
Scotia, nor the North Westernmost head of Connecticut River has
yet been ascertained; and whereas that part of the boundary line
between the Dominions of the two Powers which extends from the
source of the River S* Croix directly North to the abovementioned
North West Angle of Nova Scotia, thence along the stud Highlands
which divide those Rivers that empty themselves into the River
S1 Lawrence from those which fall into the Atlantic Ocean to the
1 Document 11.
-------
f
578
Document SS
North Westernmost head of Connecticut River, thence down along
the middle of that River to the forty fifth degree of North Latitude,
thence by a line due West on said latitude until it strikes the River
Iroquoifl or Cataraquy, has not yet been surveyed: it is agreed that for
these several purposes two Commissioners shall be appointed, sworn,
and authorized to act exactly in the manner directed with respect to
those mentioned in the next preceding Article unless otherwise spec-
ified in the present Article. The said Commissioners shall meet at
S* Andrews in the Province of New Brunswick, and shall have power
to adjourn to such other place or places as they shall think fit. The
said Commissioners shall have power to ascertain and determine the
points above mentioned in conformity with the provisions of the said
Treaty of Peace of one thousand seven hundred and eighty three, and
shall cause the boundary aforesaid from the source of the River S*
Croix to the River Iroquois or Cataraquy to be surveyed and marked
according to the said provisions. The said Commissioners shall make
a map of the said boundary, and annex to it a declaration under their
hands and seals certifying it to be the true Map of the said boundary,
and particularizing the latitude and longitude of the North West
Angle of Nova Scotia, of the North Westernmost head of Connecticut
River, and of su<^other points of the said boundary as they may
deem proper. Andooth parties agree to consider such map and decla-
ration as finally and conclusively fixing the said boundary. And in
the event of the said two Commissioners differing, or both, or either
of them refusing, declining, or wilfully omitting to act, such reports,
declarations, or statements shall be made by them or either of them,
and such reference to a friendly Sovereign or State shall be made in
all respects as in the latter part of the fourth Article is contained,
and in as full a manner as if the same was herein repeated.
ARTICLE THE SIXTH.
Whereas by the former Treaty of Peace' that portion of the boundary
of the United Statesfrom the point where the forty fifth degree of North
Latitude strikes the River Iroquois or Cataraquy to the Lake Superior
was declared to be "along the middle of said River into Lake Ontario,
through the middle of said Lake until it strikes the communication by
water between that Lake and Lake Erie,thence along the middle of said
communication into Lake Erie, through the middle of said Lake until
it arrives at the water communication into the Lake Huron; thence
through the middle of said Lake to the water communication between
1 Document 11.
-------
Great Britain: 1814
579
that Lake and Lake Superior:" and. whereas doubts have arisen what
was the middle of the said River, Lakes, and water communications,
and whether certain. Islands lying in the same were within the Do-
minions of His Britannic Majesty or of the United States: In order
therefore finally to decide these doubts, they shall be referred to two
Commissioners to be appointed, sworn, and authorized to act exactly
in the manner directed with respect to those mentioned in the next
preceding Article unless otherwise specified in this present Article.
The said Commissioners shall meet in the first instance at Albany in
the State of New York, and shall have power to adjourn to such other
place or places as they shall think fit. The said Commissioners shall
by a Report or Declaration under their hands and seals, designate the
boundary through the said River, Lakes, and water communications,
and decide to which of the two Contracting parties the several Is-
lands lying within the said Rivers, Lakes, and water communications,
do respectively belong in conformity with the true intent of the said
Treaty of one thousand seven hundred and eighty three. And both
parties agree to consider such designation and decision as final and
conclusive. And in the event of the said two Commissioners differing
or both or either of them refusing, declining, or wilfully omitting to
act, such reports, declarations, or statements shall be made by them
or either of them, and such reference to a friendly Sovereign or State
shall be made in all respects as in the latter part of the fourth Article
is contained, and in as full a manner as if the same was herein repeated.
ARTICLE THE SEVENTH.
It is further agreed that the said two last mentioned Commissioners
after they shall have executed the duties assigned to them in the pre-
ceding Article, shall be, and they are hereby, authorized upon their
oaths impartially to fix and determine according to the true intent of
the said Treaty of Peace1 of one thousand seven hundred and eighty
three, that part of the boundary between the dominions of the two
Powers, which extends from the water communication between Lake
Huron and Lake Superior to the most North Western point of the
Lake of the Woods;to decide to which of the two Parties the several
Islands lying in the Lakes, water communications, and Rivers form-
ing the said boundary do respectively belong in conformity with the
true intent of the said Treaty of Peace of one thousand seven hun-
dred and eighty three, and to cause such parts of the said boundary
as require it to be surveyed and marked. The said Commissioners
1 Document 11.
115805*31vol. 2 39
fa
-------
580
Document SS
shall by a Report or declaration under their hands and seals, des-
ignate the boundary aforesaid, state their decision on the points
thus referred to them, and particularize the Latitude and Longitude
of the most North Western point of the Lake of the Woods, and of
such other parts of the said boundary as they may deem proper.
And both parties agree to consider such designation and decision as
final and conclusive. And in the event of the said two Commissioners
differing, or both or either of them refusing, declining, or wilfully
omitting to act, such reports, declarations or statements shall be
made by them or either of them, and such reference to a friendly
Sovereign or State shall be made in all respects as in the latter part
of the fourth Article is contained, and in as full a manner as if the
same was herein repeated.
ARTICLE THE EIGHTH.
The several Boards of two Commissioners mentioned in the four
preceding Articles shall respectively have power to appoint a Secre-
tary, and to employ such Surveyors or other persons as they shall
judgo necessary. Duplicates of all their respective reports, declara-
tions, statements, and decisions, and of their accounts, and of the
Journal of their proceedings shall be delivered by them to the Agents
of His Britannic Majesty and to the Agents of the United States,
who may be respectively appointed and authorized to manage the
business on behalf of their respective Governments. The said Com-
missioners shall bo respectively paid in such manner as shall be
agreed between the two contracting parties, such agreement being to
be settled at the time of the Exchange of the Ratifications of this
Treaty.1 And all other expenses attending the said Commissions
shall be defrayed equally by the two parties. And in the case of
death, sickness, resignation, or necessary absence, the place of every
such Commissioner respectively shall be supplied in the same manner
as such Commissioner was first appointed; and the new Commis-
sioner shall take the same oath or affirmation and do the same
duties. It is further agreed between the two contracting parties that
in case any of the Islands mentioned in any of the preceding
Articles, which were in the possession of one of the parties prior to
the commencement of the present war between the two Countries,
should by the decision of any of the Boards of Commissioners afore-
said, or of the Sovereign or State so referred to, as in the four next
preceding Articles contained, fall within the dominions of the other
1 See the note regarding Article 8.
-------
Great Britain: 1814
581
party, all grants of land made previous to the commencement of the
war by the party having had such possession, shall be as valid as if
such Island or Islands had by such decision or decisions been ad-
judged to be within the dominions of the party having had such
possession.
ARTICLE THE NINTH.
The United States of America engage to put an end immediately
after the Ratification, of the present Treaty to hostilities with all the
Tribes or Nations of Indians with whom they may be at war at the
time of such Ratification, and forthwith to restore to such Tribes or
Nations respectively all the possessions, rights, and privileges which
they may have enjoyed or been entitled to in one thousand eight
hundred and eleven previous to such hostilities. Provided always
that such Tribes or Nations shall agree to desist from ail hostilities
against the United States of America, their Citizens, and Subjects
upon the Ratification of the present Treaty being notified to such
Tribes or Nations, and shall so desist accordingly. And His Britannic
Majesty engages on his part to put an end immediately after the
Ratification of the present Treaty to hostilities with all the Tribes
or Nations of Indians with whom He may be at war at the time of
such Ratification, and forthwith to restore to such Tribes or Nations
respectively all the possessions, rights, and privileges, which they may
have enjoyed or been entitled to in one thousand eight hundred and
eleven previous to such hostilities, Provided always that such Tribes
or Nations shall agree to desist from all hostilities against His Britannic
Majesty and His Subjects upon the Ratification of the present Treaty
beingnotified to such Tribes or Nations, and shall so desist accordingly.
ARTICLE THE TENTH.
Whereas the Traffic in Slaves in irreconcilable with the principles of
humanity and Justice, and whereas both His Majesty and the United
States are desirous of continuing their efforts to promote its entire
abolition, it is hereby agreed that both the contracting parties shall use
their best endeavours to accomplish so desirable an object.
ARTICLE THE ELEVENTH.
This Treaty when the same shall have been ratified on both sides
without alteration by either of the contracting parties, and the Ratifi-
cations mutually exchanged, shall be binding on both parties, and the
Ratifications shall be exchanged at Washington in the space of four
months from this day or sooner if practicable.
*
-------
582
Document S3
In faith whereof, We the respective Plenipotentiaries have signed
this Treaty, and have thereunto affixed our Seals.
Done in triplicate at Ghent the twenty fourth day of December
one thousand eight hundred and fourteen.
GAMBIER. [Seal]
HENRY GOULBUHN [Seal]
WILLIAM ADAMS- [Seal]
JOHN QTJINCY ADAMS [Seal]
J. A. BAYARD [Seal]
H. CLAY. [Seal]
JON* RUSSELL [Seal]
ALBERT GALLATIK [Seal]
NOTES
It is stated in the final clause that this treaty was executed in
triplicate. However, there are two signed originals in the treaty file
and a third is bound in a volume of papers relating to the negotia-
tions (D. S., Ghent, etc.). The following explanatory paragraph is
from the letter of the American plenipotentiaries of December 25,
1814, to the Secretary of State (American State Papers, Foreign
Relations, III, 733):
To guard against any accident which might happen in the transmission of a
single copy of the treaty to the United States, the British plenipotentiaries have
consented to execute it in triplicate; and, as the treaty with the British ratification
may be exposed to the same danger, the times for the cessation of hostilities, the
restoration of captures at eea, and the release of prisoners, have been fixed, not
from the exchange of ratifications, but from the ratification on both sides, without
alteration by either of the contracting parties. We consented to the introduction
of this latter provision at the desire of the British plenipotentiaries, who were
willing to take a full, but were unwilling to incur the risk of a partial, ratification,
as the period from which the peace should be considered as concluded.
It was on February 11, 1815, that the Treaty of Ghent reached this
country, according to the following statement from Miles' Weekly
Register, VII, 393:
The British sloop of war Favorite arrived at New-York on Saturday evening
last (February 11, 1815}passengers Mr. Carrol, one of the secretaries to our
ministers at Ghent, and Mr. Baker, secretary to the British legation to the United
States. The former with a copy of the TREATT OF PEACE concluded and signed
by the British commissioners at Ghent on the 24th December, and the latter
with the same ratified by the prince regent, and which being approved by the
president and senate, is immediately to be communicated by nim to tne British
fleets and armies in this quarter of the globe.
On the evening of February 13 the Secretary of the Mission at
Ghent, Christopher Hughes, jr., arrived at Annapolis with another
original of the treaty; it appears that Carroll (and doubtless Hughes
also) reached Washington on February 14 (the Daily National Intel-
ligencer, February 15 and 10, 1815).
-------
Great Britain: 1814
583
On the back cover page of one of the two originals in the file there
is written a duplicate of the United States instrument of ratification
signed by Madison and tinder the Great Seal, but lacking the usual
attest.
The file of this treaty includes the British instrument of ratifica-
tion of December 31,1814, the attested Senate resolution of February
16, 1815, and also the certificate of the exchange of ratifications men-
tioned below in the note regarding Article 8.
The original proclamation has not been found; but it was published
at the time, «. g., Niles' Weekly Register, VII, 397-400; and see also
Richardson, I, 560.
NOTE REGARDING ARTICLE 8
An agreement regarding the payment of the Commissioners was
made when the ratifications were exchanged; it was to the effect that
such payment should be made on the same principles as those observed
in respect of the Jay Treaty (Document 16). The terms of the agree-
ment were embodied in the certificate of the exchange of ratifications
as follows:
Thia is to certify that on the seventeenth day of February one thousand eight
hundred and fifteen, &t eleven o'Clock P. M. the Honourable James Monroe,
Acting Secretary of State of the United States, delivered and exchanged a ratified
Copy of a Treaty, signed at Ghent on the twenty fourth day of December last
between His Britannic Majesty and the United States of America for a like copy
on the part of His said Britannic Majesty.
At the same time Mf Monroe expressed the willingness of the Government
of the United States to arrange the payment of the Commissioners to be appointed
in pursuance of the Treaty on the same principles as were observed in carrying
into Execution the Treaty of one thousand seven hundred and ninety four be-
tween the same Powers, that is, the expense to be equally borne by the two
Governments, to which arrangement the Undersigned consented.
In witness whereof the Undersigned has hereunto set his hand and seal of
arms at Washington this seventeenth day of February, one thousand eight
hundred and fifteen.
[Seal] AKTHONT St JNO BAKER.
NOTE REGARDING THE ALTERNAT
In this treaty the aUernat was not observed as it has since been;
His Britannic Majesty was named before the United States of Amer-
ica, and the British plenipotentiaries signed above those of the United
States.
It appears that verbal representations on the point were made by
Monroe at the time of the exchange of ratifications; the following is
extracted from his letter to John Quincy Adams of March 13, 1815
(D. S.( 7 Instructions, U. S. Ministers, 390-91):
In the treaty lately concluded at Ghent, Great Britain takes a priority over the
United-States, as is presumed, in both instruments; she does so, in that received
here, and it is inferred that she does it in that received by her government, from
the circumstance that she holds that rank in the ratification of the Prince Regent.
Great-Britain takes the first rank as a power, and our Ministers likewise sign under
those of Great-Britain. This though comparatively an inferior object, is not
unimportant. It was, there is no doubt, lost sight of in the very important object
^
I",
1
-------
584
Document SS
of peace. In all other treaties between the United-States and other powers, the
Ministers of each partjr sign in the same line. This was done in the Treaty of
peace with Great-Britain, and in the subsequent Treaties with her government.
In the Treaty with France in 1803., the United-States took rank is the instrument
delivered to this government, which was reciprocated in that delivered to the
government of France. In the Treaty with Spain in 1795., MT Pinckney signed
before the Prince of the Peace; the United-States had rank likewise, over Spain.
in the instrument delivered to them. It IB understood, that in treaties between all
powers, this principle of equality is generally, if not invariably recognized and
observed. In the exchange of ratifications tt was thought proper to advert to
these circumstances, that neither this Treaty or those which preceded it, might
become a precedent, establishing a relation between the United-States and Great-
Britain, differing from that which exists between them and other powers. As the
governments of Europe attach much importance to this circumstance, it is one
to which we ought not to continue, to be altogether inattentive. It is a mortifying
truth that concessions, however generous the motive, seldom produce the desired
effect. They more frequently inspire improper pretensions in the opposite
party. It may be presumed that Me Baker will communicate the substance of
my remarks to him on this subject to his government. They were made with that
calculation. Should a suitable opportunity present itaetf, it may have a good
effect, that you should explain to the British government, the sentiments of The
President on it.
-------
-------
Bangor - January, 1834
BJISOLVE on the report of Alexander Campbell and others, a committee in behalf of
this Commonwealth, to negotiate and settle any misunderstanding or difference with
the Fassamaquoddy Indians and those of other tribes connected with them.
February 10,1795
Whereas, by a resolve of the general court passed on the 26th day of June last Alexander
Campbell, John Allan and George Stillman were appointed a committee, in behalf of this
Commonwealth, to negotiate and settle any misunderstanding, dispute, or difference which may
subsist between this Commonwealth and the Fassamaquoddy Indians and those of other tribes
connected with them, with full power and authority to lay out and assign to the said Indians, any
tract of unlocated land belonging to this Commonwealth, in the County of Washington, not
exceeding ten thousand acres, and also to purchase any particular spot of ground or tract of land for
the use and convenience of said Indians, provided, however, that such purchase shall not exceed the
sum of five hundred pounds.
And whereas, the said committee have exhibited to the general court, in their present
session, an agreement made and signed on the 29th day of September last by and between them in
behalf of this Commonwealth, and the chiefs of the Fassamaquoddy tribe of Indians and others
connected with them, which agreement is in the words following, to wit:
To all people to whom this present agreement shall be made known, we Alexander
Campbell, John Allan and George Stillman. Esquires, a committee appointed and authorized by the
general court of the Commonwealth of Massachusetts, to treat with and assign certain lands to the
Fassamaquoddy Indians and others connected with them, agreeable to resolve of said general court,
on the twenty-sixth of June, in the year of our Lord, one thousand seven hundred and ninety-four.
of the one part, and the subscribing chiefs and others for themselves, and in behalf of said
Fassamaquoddy tribe and others connected with them, of the other part: witnesseth, that the said
committee, in behalf of the Commonwealth aforesaid, and in consideration of the said Indians
relinquishing all their rights, title. Interests, claim or demand, on any land or lands lying and being
This is a reproduction of a copy of the purported Treaty of 1795 - page 1 of 3
-------
within the said Commonwealth of Massachusetts; and also engaging to be peaceable and quiet
inhabitants of said Commonwealth, without molesting any other of the settlers of the
Commonwealth aforesaid in any way or means whatever in consideration of all which, the
committee aforesaid for and in behalf of the Commonwealth aforesaid, do hereby assign and set off
to the aforesaid Indians, the following tract or parcel of land lying and being within the
Commonwealth of Massachusetts, vlz« all those lands lying and being in Schoodic River, between
the falls at the head of the tide, and the falls below the forks of said river where the north branch
and west branch parts; being fifteen in number, containing one hundred acres more or lcs:i= also
Township No. a in the first range surreyed by Mr. Samuel Tltcomb, in the year of our Lord, one
thousand seventeen hundred and ninety-four, containing about twenty-three thousand acres more or
less; being bounded as follows, easterly by Tomer's River and Township No. One ftrst range;
northerly by Township No. Two second range; westerly by Township No. Three first range;
southerly by the west branch of Schoodic River and Lake; and also Lire's Island lying in front of
said township, containing ten acres more or less; together with one hundred acres of land lying on
Nemcass Point adjoining the west side of said township; also Fine Island lying to the westward of
said Nemcass Point containing one hundred and fifty acres, more or less; also assign and set off to
John Baptist Lacote. a French gentleman, now settles among the said Indians, one hundred acres of
land, as a settler in Township No. One first range, lying at the falls as the carrying place on the
north branch of Schoodic River, to be entitled to have said land laid out to him in the same manner
as settlers in new townships are entitled; also assign to said Indians the privilege of fishing on both
branches of the river Schoodic without hinderance or molestation and the privilege of passsing the
said river over the different carrying places thereon: all which islands, townships, tracts or parcels of
land and privileges being marked with a cross, thus X. on the plan taken by Mr. Samuel Titcomb,
with the reservation of all pine trees fit for masts on said tract of land to government; they making
said Indians a reasonable compensation therefore; also assign and set off to said Indians ten acres of
land more or less at Pleasant Point, purchased by said committee in behalf of said Commonwealth,
of John Frost, being bounded as follows, viz: beginning at a stake to eastward of the dwelling house,
and running north twenty-five degrees west fifty-four rods; from thence running north fifty-six
degrees east thirty-eight rods to the bay; from thence by the shore to the first bound; also a
privilege of setting down at the carrying place at West Quoddy between the Bay of West Quoddy
and the Bay of Fundy, to contain fifty acres. The said islands, tracts of land and privileges to be
confirmed by the Commonwealth of Massachusetts to the said Indians and their heirs forever. In
testimony of all which, we. the said Aletander Campbell, John Allan and George Stillman, the
This is a reproduction of a copy of the purported Treaty of 1795 - page 2 of 3
-------
committee aforesaid, and in behalf of the Commonwealth aforesaid, and the chiefs and other Indians
aforesaid, in behalf of themselves and those connected with them as aforesaid, have hereunto set our
hands and seals at Passamaquoddy, the twenty-ninth day of September, in the year of our Lord one
thousand seven hundred and ninety-four.
Met Campbell Seal Francis Joseph Neptune "X" (his mark) Seal
J. Allen Seal John Neptune "X" (his mark) Seal
George Stillman Seal Piel Neptune "X" (his mark) Seal
Joseph Neptune "X" (his mark) Seal
Piel Denny "X" (his mark) Seal
Jonale Denny "X" (his mark) Seal
Joseph Tomas "X" (his mark) Seal
Signed and sealed in presence of*
Samuel Titcomb.
Jno. Frost, Jun'r.
Be it therefore Resolved, That the said agreement be and it is hereby ratified and confirmed.
on the part of the Commonwealth, and that there be allowed and paid out of the treasury of this
Commonwealth, to the said committee, the sum of two hundred pounds, being the consideration
paid to the above named John Frost, for a tract of land on Pleasant Point, purchased by the said
committee, ten acres of which more or less, as in the before recited agreement, is hereby
appropriated for the accommodation of the said Indians, said sum to be paid to the said committee,
on their depositing in the secretary's office a deed from the said John Frost, of the said tract of land
on Pleasant Point, duly executed and acknowledged; and, whereas, there now remains for the
disposition of government ninety acres more or less of the above mentioned lot of land, on
Pleasant Point.
Resolved, that the treasurer of this Commonwealth be and he is hereby authorized and
empowered, to lease the .said remaining ninety acres for one year or for term of years, in such
manner and on such considerations, as he may judge will be most for the advantage of the
Commonwealth.
This is a reproduction of a copy of the purported Treaty of 1795 - page 3 of 3
-------
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Chapter Ten
WATER RIGHTS
Tibk of Contents
SECTION A. INTRODUCTION
SECTION B. THE WINTERS DOCTRINE .
1, Source at the Right
Z Bisii of the Right
3, Indian Reserved Righti Compared to
Aewrved Wtter Rights on Fedenl Public
Ltndi ,
4. Soup* of the Right
575
578
578
580
5S1
Pape
5. \leiftirr nfthf Right - 588
6 Prioht\ of the Right ....590
7. Chutfr in Pltce or Ntture of Use 592
S. Transfer of Indian Rights 593
SECTION C FEDERAL PROTECTION OF
INDIAN WATEH RIGHTS 596
SECTION D ADIVOICATOK1 JURISDICTION 599
SECTION E BECIMTOHI JURISDICTION.... 604
A. Introduction
In the West today there is no more critical problem than that of water
scarcity.1 The population growth of the last few decades and the need to develop
the West's significant energy resources have intensified the competition for the
«te supply of water. Many of the streams in the western United States have
n fully or over claimed by public entities and private parties. In some areas,
particularly the southwest, groundwater sources are being depleted at rates
exceeding recharge.2
Indiana and Indian tribes have well established rights to large, but for the
moot part unquantified, amounts of water. These rights are based on the
concept that the establishment of Indian reservations meant not only that the
land was reserved or confirmed but also that the right to sufficient water to
fulfill the purposes of the reservation was reserved.3 The Supreme Court first
articulated this doctrine in Winters v. United States * in 1908 and reaffirmed
1 Colorado River Water Conn. Dial. v. United States, 424 U.S. 800, 804 (1976).
1 See generally NAT*L WATER COMM'N, WATER POLICIES FOR THE FUTUREFINAL REPORT TO THE
PRESIDENT AND TO THE CONGRESS OP THE UNITED STATES 8-9 (Washington: Government Printing
Office, 1973).
* See generally Pelcyger, The Winters Doctrine And the Greening of Reservations, 4 J. CONTEMP.
L. 19 (1977); Ranquist, The Winters Doctrine and Haw it Grew. etc.. 1975 B.Y.U.L. REV. 639. See
also P. MAXJTKLD, M. DIETERICH, & F. TRELEASE, NATURAL RESOURCES LAW ON AMERICAN INDIAN
LANDS 203-39 (Boulder: Rocky Mountain Mineral Law Foundation, 1977); Bloom, Indian
"Paramount' Rights to Water Use, 16 ROCKY MTN. Mm. L. INST. 669 (1971); Clyde, Special Con-
siderations Involving Indian Rights, 8 NAT. RESOURCES LAW. 237 (1975); Dellwo, Indian Water
Righto The Winter* Doctrine Updated. 6 GONZ. L. REV. 215 (1971); Hundley. The Dark and
Bloody Ground of Indian Water Righto: Confusion Elevated to Principle, 9 W. HIST. Q. 455-82
(1978); Peleyger. Indian Water Rights: Some Emerging Frontiers, 21 ROCKY MTN. MIN. L. INST. 743
(1976); Veeder, Indian Prior and Paramount Rights Versus State Rights, 51 N.D.L. REV. 107
(1974); Veeder, Indian Prior and Paramount Rights to the Use of Water, 16 ROCKY MTN. MIN. L.
INST. 631 (1971); Veeder, Winters Doctrine Righto, etc.. 26 MONT. L. REV. 149 (1965); Note, Indian
Reserved Water Righto: The Winters of Our Discontent, 88 YALE LJ. 1689 < 1979). On water righto
in general, aee NAT'L WATER COMM'N, supra note 2; 1-3 W. HUTCHINS, WATER RIGHTS IN THE
NINETEEN WESTERN STATES (Washington: Government Printing Office, 1971-1977); F. TRELEASE,
FEDERAL-STATE RELATIONS IN WATER LAW (Springfield, Va.: National Technical Information Ser-
e, 1971) (National Water Comm'n Legal Study No. 5); 1-7 WATERS AND WATER RIGHTS (R. Clark
L) (Indianapolis: The Allen Smith Co., 1967-1976) (hereinafter cited as WATERS AND WATER
575
1-
4 207 U.S. 564(1908).
-------
Ch. 10, Sec. A
WATER RIGHTS
576
it in 1963 in Arizona v. California.6 Cappaert v. United States9 contains the
Court's most succinct and lucid statement of the governing principles of
reserved water rights:
This Court has long held that when the Federal Government withdraws
its land from the public domain and reserves it for a federal purpose, the
Government, by implication, reserves appurtenant water then
unappropriated to the extent needed to accomplish the purpose of the
reservation. In so doing the United States acquires a reserved right in
unappropriated water which vests on the date of the reservation and is
superior to the rights of future appropriators. Reservation of water rights is
empowered by the Commerce Clause, Art. I, § 8, which permits federal
regulation of navigable streams, and the Property Clause, Art. IV, § 3,
which permits federal regulation of federal lands. The doctrine applies to
Indian reservations and other federal enclaves, encompassing water rights
i:i navigable and nonnavigable streams.
In determining whether there is a federally reserved water right implicit
in a federal reservation of public land, the issue is whether the Government
intended to reserve unappropriated and thus available water. Intent is
inferred if the previously unappropriated waters are necessary to accomplish
the purpose for which the reservation was created.7
Indian reserved water rights are property rights that are predicated on federal
law and are not dependent on state substantive law.8
Indian water rights cannot be understood apart from the prior appropriation
system, recognized in one form or another in all of the mainland western
states.9 The doctrine of prior appropriation developed as settlers streamed west
following the discovery of gold in California in 1848. They
quickly realized that the riparian doctrine of water rights that had served
well in the humid regions of the East would not work in the arid lands of the
West. Other settlers coming into the intermountain area, the vast basin and
range country which lies between the Rocky Mountains on the east and the
Sierra Nevada and Cascade Ranges on the west, were forced to the same
conclusion.10
*:)73 U.S. 546, 600 (1963). Reserved rights are not unique to Indiana, but apply to some
non-Indian federal lands including national forests, monuments, parks, and military reservations.
United States v. New Mexico, 438 U.S. 696 (1978); Cappaert v. United States, 426 U.S. 128 (1976);
Arizona v. California, 373 US. 546. 601 (1963), decree entered, 376 U.S. 340 (1964). See Sec. B3
infra.
« 426 U.S. 128(1976).
7 Jd. at 138-39 (citations omitted). Cappaert involved the water rights of the Devil's Hole
National Monument. Although the statement quoted in the text has general application to Indian
reservations, there are several important differences between Indian reservations and other
federal reserved right*. See Sec. B3 infra.
426 U.S. at 145; Colorado River Water Cons. Dist. v. United States, 424 U.S. 800 (1976);
Winters v. United States, 207 U.S. 564, 577 (1908). In some instances, Indian water righto may
derive from sources other than the creation of reservations. See Sec. B, note 10 infra.
"The doctrine first received judicial acceptance in Irwin v. Phillips, 5 Cal. 140 (1855), and was
applied in Atchtson v. Peterson, 87 U.S. (20 Wall.) 507, 513 (1874).
"' California v. United States. 436 U.S. 645. 653 (1978). See a/so Jennison v. Kirk, 98 U.S. 453
(1879).
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,77
INTRODUCTION
Ch. 10, Sec. A
The doctrine of prior appropriation was first recognized in local customs,
aws, and judicial decisions of the early mining camps. Beginning in 1866
Congress adopted a policy of deferring to these local laws.11 In 1877 Congress
enacted the Desert Land Act,12 which was interpreted as providing that state
.aw controlled the water rights of recipients of federal land patents.13
Consequently, no United States patent to private lands carries with it any
'ederally defined water right." By virtue of the Desert Land Act, waters on the
public domain were opened to appropriation under the laws of the various
states and territories.
Under the riparian system, followed primarily in eastern states,16 "the
iwner of land that is riparian to a waterbody, has the right to have that
waterbody continue to stand or flow along his land, subject to the right of other
riparian owners to make reasonable use of the waters."17 The respective rights
of riparian owners are correlative. Use does not create, and disuse does not
diminish, a riparian right, and no advantage is gained by priority in the date
of use. In the event of shortage, the available supply is distributed equitably
among all the riparian owners.18
11 Act of July 26,1866, eh. 262, § 9, 14 Slat. 251, 253 (codified at 30 U.S.C. § 51), as amended
by Act of July 9, 1870, ch. 235, § 17, 16 Stat. 217, 218 (codified at 43 U.S.C. § 661). These two
ttatutea expressly confirmed acquisition of water rights in accordance with local customs, and
made clear that water rights acquired in this manner were valid against both the federal govern-
, and all federal grantees. See California v. United States, 438 U.S. 645, 656 (1978); Broder
Jater Co., 101 U.S. 274, 276 (1879); Jennison v. Kirk. 98 U.S. 453 (1879). See also 1 W.
, supra note 3, at 172-75; Ranquist, supra note 3, at 642-45. For a general discussion of
the development of state water rights law, see 1 WATERS AND WATER RIGHTS, supra note 3, t§ 15-19.
11 Ch. 107, 19 Stat. 377 (codified as amended at 43 U.S.C. }§ 321-323, 325, 327-329).
u See Federal Power Comm'n v. Oregon, 349 U.S. 435, 446-48 (1955); California Or. Power Co.
v. Beaver Portland Cement Co., 295 U.S. 142, 160-63 (1935).
14 By its terms the Desert Land Act did not purport to affect rights to the use of water from
navigable sources. S 1. 19 Stat at 377 (codified as amended at 43 U.S.C. § 321). In practice.
however, rights to use water from navigable streams have been acquired in the same manner as
rights from non-navigable sources, although such rights may be subject to the government's
navigation servitude. See Op. Sol. Int., June 25,1979, at 4-11 (M 36914); C. MEYERS & A. TARLOCK,
WATER RESOURCE MANAGEMENT 155 (Mineola, N.Y.: The Foundation Press, Inc., 1980).
"California Or. Power Co v. Beaver Portland Cement Co.. 295 U.S. 142 (1935). The 1866.1870,
and 1877 Acts, discussed in notes 11, 14 supra, had no effect on the water rights of federal
reservations, however. Cappaert v. United States, 426 U.S. 128, 143-45 (1976); Federal Power
Comm'n v. Oregon. 349 U.S. 435 (1955). Cf, United States v. Rio Grande Dam & Irrig. Co., 174
U.S. 690.703 (1899) (states may control waters on federal lands unless superior rights of federal
government are involved).
" In some western states, including California, Oregon, and Washington, the riparian and prior
appropriation doctrines coexist. See 2 W. HUTCHINS, supra note 3, at 6-14.
17 7 WATER AND WATER RIGHTS, supra note 3, 4 610.
"Apart from the arid western states, the riparian rights doctrine, which originated in English
feudal land law, is the prevailing system of water law in the United States. Riparian water rights
attach to the land adjoining bodies of water. Appropriative water rights attach to the use of an
amount of water on a specific piece of land, not necessarily bordering on the body of water.
Generally, under the riparian doctrine the right of a person to make use of the water that flows
through his or her land is part of his or her interest in the land. An owner may insist upon the
ordinary flow of the water, undiminished in quantity and unpolluted in quality except as it may
be diminished necessarily by the corresponding rights of other riparians. Riparian rules are
directly contrary to the appropriation doctrine. See 6-A AMERICAN LAW OF PROPERTY § 28.55 (A.
Casner ed.) (Boston: Little, Brown & Co.. 1954); 1 WATERS AND WATER RIGHTS, supra note 3, §§ 16,
18-22.
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Ch. 10, Sec. Bl
WATER RIGHTS
578
By contrast, water rights acquired under the prior appropriation system are
limited in quantity to the amount of water claimed at the date of appropriation
and to the amount actually applied to beneficial use. Unlike riparian rights,
appropriative rights may be abandoned, or forfeited for non-use for a period of
years set by state statutes. In times of shortage, the holders of junior" rights,
those with later priority dates, must forego their use of water from a particular
water source in favor of senior appropriators on the same water course.19
Indian, reserved water rights differ significantly from both riparian and
appropriative rights. They are not based on appropriation and actual beneficial
use and they are not lost by non-use. Sufficient water is reserved to fulfill the
purposes for which a reservation was established. The priority of the water
right is no later than the date on which a reservation was established w which,
in the case of most Indian reservations in the West, is earlier than the priority
of most non-Indian water rights. Thus, a reservation established in 1865 which
starts putting water to use for agricultural purposes in 1981 under its reserved
rights has, in times of shortage, a priority that is superior to any non-Indian
water right with a state law priority acquired after 1865. Unlike riparian
rights, Indian reserved rights are not ratably reduced in times of shortage. For
these reasons, Indian rights are generally prior and paramount to rights
derived under state law.
B. The Winters Doctrine
1. Source of the Right
In the leading case of Winters v. United States,1 the Supreme Court held that
the right to use the waters of the Milk River was impliedly reserved in the
agreement establishing the Fort Belknap Reservation in Montana. The United
States brought suit on behalf of itself and the affected Indians to enjoin
upstream appropriations by non-Indians who claimed rights to use the waters
of the Milk River under the prior appropriation law of Montana. The case
turned upon the construction of an 1888 agreement by which the Indians
relinquished a portion of their lands and retained others for their reservation.2
No treaty was involved.
"' See Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 805 (1976).
*' The water*righto of tribes occupying their aboriginal lands, which the tribes later reserved or
had confirmed by treat}, statute, executive order, or agreement, may date to pre-hietoric times.
United States v. Adair, 478 F. Supp. 336,350 (D. Or. 1979), appeal pending; United States v. Gila
Valley Irrig. Diat., Globe Equity No. 59 (D. Ariz. 1935); 34 Op. Att'y G«n. 171,176-77 (1924). See
Antoine v. Washington, 420 U.S. 194. 196-97 (1975); Oneida Indian Nation v. County of Oneida,
414 VS. 661,669 (1974); Pelcyger. 4 J. CONTCMP. L., supra note 3, at 19.25 n.30. The aboriginal
lands involved in Arizona v. California, 373 U.S. 546 (1963), decree entered, 376 US. 340 (1964),
were not adjudicated an aboriginal priority, but the issue was not raised in that litigation. See Sec.
B, text at notes 94-101 infra.
2:1 See Bloom, supra note 3; Veeder, 16 ROCKY MTN. Mm. L. INST., supra note 3. Indian priorities
in already over-appropriated waters have resulted in increasing pressure for the precise
quantification of the Indian rights. See, e.g., Colorado River Water Cons. Dist. v. United States,
424 U.S. 800 (1976); United States v. District Court for Eagle County, 401 U.S. 520 (1971).
1 207 U.S. 564 (1908).
2Ch. 213, 25Stat. 113, 124.
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THE FEDERAL ACKNOWLEDGMENT PROCESS
SOURCE OF THE SECRETARY'S AUTHORITY
TO ACKNOWLEDj&E INDIAN TRIBES
A number of statutes impose upon the Secretary of the Interior specific obligations to
provide benefits and services to tribes and to honor and implement treaties. Before
meeting these obligations, the Secretary must first identify which groups may receive
such benefits and services. This is the basis of the Secretary's authority to
acknowledge that certain Indian groups exist as tribes.
Specifically, among the authorities for the regulations in 25 CFR 83 governing the
Acknowledgment process are:
Section 45 of the Revised Statutes (25 U.S.C. 9), which authorizes the
President TO prescribe regulations "for carrying into effect the various provisions
of any act relating to Indian affairs";
Section 441 -'the Revised Statutes (43 U.S.C. 14571, which charges the
Secretary of the Interior "with the supervision of public business relating to ...
Indians."
Section 43 of the Revised Statutes (25 U.S.C. 2), which gives the
Commissioner of Indian Affairs "management of all Indian affairs and of all
matters arising out of Indian relations"; and
'">;".*'*
Part 230, chapters 1 and 2 of the Department of the Interior's Department
Manual, which refer to delegations of authority made by* the Assistant
Secretary - Indian Affairs to officials within the Bureau of Indian Affairs.
Congress, by appropriating funds for tribes acknowledged through the administrative
process, has validated that process. - ,_.
'HISTORICAL BACKGROUND
Since the early 1 9th century, jndiyidual unrecognized Indian groups have claimed their
sovereignty when seeking 'Federal I services* or help in protecting their lands and
resources, or defending their rights 10 tax or govern. These Indian groups, in doing
so. were also seeking recognition or clarification of their government-to-government
relationship with the United, States as it applies to them. ' "''»- .;;
.Jn the course of more than 150 years, the methods for detecmining which of these
groups were sovereign tribes varied from case to case, and recognition depended
-------
variously on executive action, legislation or judicial decision. Before the 1930's, the
standards used to decide how such determinations were to be made had never been
codified; rather, standards were applied by shuffling case law, congressional
legislation, and departmental policies and actions. Many groups seeking recognition
were rejected. Others were left for decades without any determination being made.
To remedy this situation, regulations (25 CFR 83) were codified in 1978, and the
Federal Acknowledgment Project was established. The Bureau of Indian Affairs (BIA)
then held 40 petitions from Indian groups requesting acknowledgement as tribes.
CASE LAW ' . '
Underpinning the present Acknowledgment process are two lines of reasoning which
can be identified in the case law concerning tribal status and Federal responsibility for
Indian tribes. First, there are those decisions based on the actions of the Federal
Government, including negotiating treaties or agreements, assigning Indian agents, or
providing services, such as schools, etc. Second, there are those decisions based on
the character of the Indian group itself -- its political organization, ancestry or territory.
Most of these cases were argued before the 1934 passage of the Indian
Reorganization Act (IRA).
A. Decisions Based on Government Action
\j-
Before 1930, Supreme Court cases primarily dealt only with the question of whether
a branch or government department had already acted toward a tribe as if it existed
and in doing so recognized its sovereignty. The Court generally deferred to the
"political branches" of the government, saying that Indian tribes were recognized
because of actions of Congress or executive departments (United States v. Holliday
(1865); the Kansas Indians, (1867); United States v. Forty-three Gallons of Whiskey
(1876); Tully v. United States (1896); United States v. Boyd {1397); Dobbs v. United
States (1898); United States v. Sandoval (4\3'(3\; United States v.Jtice (1916); Perrin
v. United States (1914); United States v. Candelaria (1926)). ~As was more
specifically determined in United States v. Holliday, 70 U.S. 4O7 (1865):
.,. .- - .-' :-.' : .- ':.'..*. ,-/,>' ,' v' £V -f1.^'. **? '.' :-:
"' ; . "'."";' }.''"' "' " ' .
In reference to all matters of this kind, ft is the rule of this court to follow the
action of the executive and other political departments of the government,
whose more special duty, it is to determine such affairs. If by them those
Indians are recognized as a tribe, this court must do the same. If they are a
.tribe of Indians then, by the Constitution of the United States, they are placed,
','for certain purposes, with'the control of Confiress. ^fe^'-^--?^
--; i- - *':-.'i-S-^A -'- ?-'-="*'^J^ &»£: v^*..Wfi£i ;-..; t-'r&iXr^
The Supreme Courrheld, however, that there were limits u> this power.'Specifically,
the Court stated in United States. y.~$andoval^(Bn6 reiterated in United States v.
Candelaria] that, in terms of recognizing "distinctly Indian "Communities* as Indian
tribes, "it is not meant by this that. Congress may bring a community or body of
..people within the range of this .power fcy arbitrarily calling them an Indian tribe."
-------
The Supreme Court often found no. need to do more than merely list the kinds of
congressional or executive actions which had, in the mind of the Court, already
recognized a tribe's existence. Decisions were based primarily on how an Indian
group had b*»*»n treated or identified by government agencies.
For example, Congress may have ratified a treaty, established a reservation, passed
statutes specifically referring to a tribe as an existing entity, appropriated funds for
the tribe's benefit, authorized tribal funds to be held in the Federal Treasury, directed
government officials to exercise supervision over a tribe, or prohibited state taxation
of a tribe. Similarly, the Executive may have sent an Indian agent to a reservation,
acquired land for a tribe, established schools or other service institutions, supervised
tribal contracts, established an agency office or superintendency and instituted legal
suits on a tribes's behalf.
B. Decisions Based on Tribal Character
Perhaps more significant for understanding the present acknowledgment process is
the second line of reasoning developed through decisions which considered the
character of the Indian group. As early as 1867 (The Kansas Indians], the Court
found that the Shawnee were a tribe because they still maintained "their tribal
organization* and had "their o«'*n customs and laws by which they are governed."
However, the most important of these decisions was clearly Montoya v. United States
(1901), in which the Court stated: "By a 'tribe' we understand a body of Indians of
the same or a similar race, united in a community under one leadership or government,
and inhabiting a particular though sometimes ill-defined territory." This definition of
tribe may be broken down into three separate considerations:
1. It is composed of Native Americans of common ancestry.
2. It functions as a community with a leadership exercising some political
authority over them.. ,v.
3. It presently .Inhabits or historically inhabited a particular territory.
Generally/neither Court decisions discussing tribal character nor those discussing
government actions explored or anal'yzed the specific standards or actual procedures
used by Congress, the Department,of,the Interior, or the 81A when determining
.. . -. ., .
Most frequently cited ar.e'thei criteria set forth in the Handbook ofFederal Indian Law
(1942) by Felix Cohen, Assistant Solicitor in the Department erf the Interior while John
Collier was Commissioner of Indian Affairs. Cohen codified the interpretation and
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criteria used by the executive branch in the 1930's to determine whether a group was
recognized and entitled to organized tribal status under the Indian Reorganization Act
of 1934. A series of Solicitor's opinions and memorandums had addressed this
problem in instances where there were questions as to a group's status. The so-
called Cohen Criteria, listed below, combine both lines of reasoning which had
previously been applied in defining sovereign tribes. - consideration of the tribal
character of the group and1 previous government actions treating it as a tribe. The
criteria are: ' * '- -
1. That the group has had treaty relations with the United States;
2.
3.
That the group has been denominated a tribe by act of Congress or
Executive order;
That the group has been treated as having collective rights in tribal lands
or funds, even though not expressly designated a tribe;
That the group has been treated as a tribe or band by other Indian tribes;
and . . . .
That the group has exercised political authority over its members,
through a tribal council or other governmental forms.
5.
in addition to the numbered criteria above, Cohen listed secondary factors. 'He stated:
Other factors considered, though not conclusive, are the existence of special
appropriation items for the group and the social solidarity of the group.
, r
Ethnological and historical considerations, although not conclusive, are entitled
to great weight in determining the question of tribal existence.
The first three criteria reflect the weight given to previous executive and, particularly,
congressional recognition. These and the fourth criterion indicated Federal action or
other evidence identifying the group as a distinct band or tribe and not ah integral part
of another tribe. Criterion 5, concerning the group's exercise of political authority,
and the secondary factors speak to the issue of tribal character vtfijch was defined in
the 1901 Montoya v;':JJnited States decision and clarified ^- #-'*"' **-* »
v.
The
defined
* , - v
Increasing number of reque'sts Tor" recognition cOmir\g
abeyance further acknowledgment decisions, pending the development 6f regulations
fined process for requesting recognition as a tribe existed. In 1975, with *n
ireasina number of reque'sts forr recognition coming in, the "tSepartment held in
-------
for a systematic and uniform procedure to acknowledge Indian tribes.
Two years later, on June 16. 1977. proposed regulations were published in the
Federal Register. The amount of consultation and discussion with tribes and other
interested groups on the Federal Acknowledgment process following the publication
of the proposed regulations was unprecedented. More than 400 official meetings,
discussions, and conversations were held with Federal and state agency
representatives, tribal representatives, congressional staff members, as well as
petitioners and their legal representatives. In addition, the Department received 60
written comments on the initial proposed regulations, and a national conference on
Federal Acknowledgment was held and attended by approximately 350
representatives of tribes and other organizations. The Department received 34
additional comments after revised proposed regulations were published on June 1,
1978.
Final regulations were published September 1, 1978. They formulated uniform
procedures within the Department for considering and deciding on requests for
recognition, and spelled out exact criteria which an Indian group had satisfy to be
acknowledged as a tribe. Such criteria apply all petitions for recognition, yet take into
consideration variations in socio-cultural groups and their particular histories.
The criteria of the 1978 regulations used tcJay rest essentially on what Cohen had
referred to as the "ethnological criteria" of social solidarity and political authority, and,
in addition, retain demonstration of ancestry, always a major element in earlier
standards.
On the other hand, the criteria regarding previous Federal recognition were dropped,
in pan because the Supreme Court, in Pasamaquoddyv. Morton (1975), had held that
the trust responsibility of the United States in relation to Indian tribes existed
regardless of whether Federal actions had been taken which acknowledged the
responsibility. Criteria requiring previous recognition were also dropped so that tribes
with no previous Federal contact were not automatically excluded from consideration.
-------
BRANCH OF ACKNOWLEDGMENT AND RESEARCH
ACKNOWLEDGMENT
... . >
FUNCTION: To make recommendations regarding the acknowledgment of
unrecognized Indian groups seeking Federal Acknowledgment of their status as
American Indian tribes under 25 CFR 83.
THE PROCESS
Receipt of petition (letter/resolution, undocumented):
1. Acknowledge receipt of petition and establish BAR contact
2. Publish notices of receipt in Federal Register and local newspaper(s)
3. Nofify Governor and Attorney General of receipt
Preliminary Review for Obvious Deficiencies (OD Review): '
4. Review documented petition for obvious deficiencies (OD review)
5. Notify petitioner of deficiencies *
6. Provide technical advice to petitioner re correcting deficiencies
Active Consideration Review (Case Work): '" : '">" :
7.
8.
9.
10.
11.
12.
13.
Proposed Finding: ,-iW--v^.--.,.----^ ?-,--.
14. Publish notice of proposed finding in Federal Register
15. Distribute proposed rinding to petitioner and all interested parties ^
Review legal arguments and evidence submitted in response to finding
Draft final determination and summary under criteria
Conduct in-house staff review of draft
Read entire petition in depth
Conduct research needed to verify and/or refute petition
Evaluate and analyze available evidence
Draft Technical Report
Draft Summary under the Criteria - ".'
Conduct in-house staff review of drafts - vi -v^:
Finalize proposed finding v ..'
16.
17.
18.
19, Finalize Final Determination ;. &?£$^$:-&U-'v'':- ' .'-^. ' '.
20. Boute for approval # M^I^K^ ^. * . ^ *
21.
22.
23.
o ... .. --. «?"' ,'h-
Publish notice of Final Determination TifFederal Register ""
Distribute Final Determination to petitioner and all interested parties
Notify petitioner and all interested parties when decision is final.
Request for Reconsideration of Decision:
24. Review request and forward to appropriate office for decision
-------
Litigation of Decision:
25. Provide technical support to SOL
26. Prepare Administrative Record for Court ,-.'...
27. Serve as Expert Witness if called
The Branch of Acknowledgment and Research utilizes an interdisciplinary aoDroach
to its review of petitions for Federal acknowledgment. Petition review is conducted
independently by three professionals from the disciplines of Anthropology Geneainns,
and History. . .- : ,.. co|wyy,
WHAT A BAR GENEALOGIST DOES
Preliminary Review of Petition for Obvious Defidendet (OD Review):
1. Reviews documented petition for obvious deficiencies, to insure that petition
contains information which BAR will need to process it.
2. Provides technical advice to petitioners' researchers regarding the research and
preparation of genealogical material for the petition.
Active
3.
4.
5.
6.
7,
^B.
3.
W.
***.
12.
Consideration Review (Case Work):
Reads and analyzes the entire petition in detail from a genealogical perspective.
Conducts research in Federal, State, and local repositories (both public and
private) needed to verify information provided in ,'8trtion.
Conducts such other research needed to clarify or expand upon important
genealogical issues. . . -..-. .-,-
Evaluates and analyzes available evidence and other information to
a. determine whether the petitioner's members are Indian and descend from
the historiatribe(s): -, - *
determine whether the petitioner's members meet the group's own
membership requirements; and --.-- ..... >.
-determine the extent to which the petitioner's members are enrolled in
federally recognized tribes. .:
Writes draft technical report on available genealogical evidence.
Writes draft summary under-criteria 83.7(d). (e), (f), and sometimes (g).
.Participates in in-house staff review of drafts and provides necessary defense
of factual basis for genealogical evidence and recommendation. ^ ~
Completes whatever tewrites are necessary to finalize proposed finding
.Reviews argumenits and evidence submitted in response to findinjgj ~v
Writes draft Final Determinations
b.
c.
' *
.Litigation: -.
-13. Provlyjca "techniCot
14. Participates in preparation of the Administrative Record for the Court.
IS. Serves as Expert Witness If called.
Administrative Area: x?!' ?' ^f&^^rs1?'!
16. Serves as staff person with administrative responsibility'for ail requests for
-------
information arising from cases in assigned geographical area. {Genealogists
currently have administrative responsibility for the NE and the SE.)
'
i -1
Other activities'. '." '
17. Provides technical expertise regarding genealogical issues' tv
«r.
WHAT A BAR HISTORIAN DOES -
Preliminary Review of Petition for Obvious Deficiencies (OD Review):
1. Reviews documented petition for obvious deficiencies to insure that petition
contains information which 8AR will need to process it. '.»*
2. Provides technical advice to petitioners' researchers regarding the research and
preparation of historical material for the petition. r "-'
Active Consideration Review (Case Work):
'.to*
3.
4.
5.
6.
Reads and analyzes the entire pet;tion in detail from a historical perspective.
Conducts research in Federal, State, and local repositories tooth public and
private) as necessary to verify information provided in petition.
Conducts such other research needed to clarify or expand upon important
historical issues. '- *"-< -- --' " Y;"**jr>'« i^--..^?*.'-. irv-; t,-, us
Evaluates and analyzes available evidence and other information to
a. determine whether the petitioner has beeriidentified from historical times
until the present as an American Indian tribal entity. ^ ' * ^
b. determine whether the petitioner has historically lived in "a community
viewed as American Indian and distinct from other populations in the
area. -*=-.-;>.; : « ..:, >^v. :-..;. .,-5*^ ^ .d
c. determine whether the petitioner has maintained political influence or
other authority over its members as an autonomous entity throughout
history. . :^-;.~.-'fei'^i"^!*^* r ..->'.;u;-u ., :;t -.
d. - determine '^whether»the petitioner '4s"'!^the: su^ject^^ ^nflressional
": ;>jegislation;<>^hiQh"'"J»as ^expressly 'terminated "'*'~~- '
... m*%^:
B.
.v Writes draft technical report on available historical evtdel
rjS^Writes draft>urnnwry\ljridercriteria ||3^1^);i|g)/f<
.. ^Participates In4|rji*h^)uslEi^staff;/eviei'W bT^|atts^and p'rov
hisitorical^evidence and
-------
Administrative Ana: "**7W *v>w,"-.--.-r.:. .. --T .-, r:,- . .-,, . . .. . . -
16, Serves as staff person with administrative responsibility for all requests for
information arising from cases In assigned geographical area. (Historians
currently have administrative responsibility for the Midwest and Southwest.)
Other Activities: -^V4^sXJV>. ;:- '. *.$= "-:' -i--- . ..;;..--.-.vj:.'*
17. Provides technical expertise regarding historical issues,
WHAT A BAR ANTHROPOLOGIST DOES
Preliminary Review of Petition for Obvious Deficiencies (OD Review):
T. Reviews documented petition for obvious deficiencies to insure that petition
contains information which BAR will need to process it.
2. Provides technical advice to petitioners' researchers regarding the research and
preparation of anthropological material for the petition.
Active Consideration Review (Case Work):
3. Reads and analyzes the entire petition in detail from an anthropological
perspective.
4, Conducts research in Federal. State, and local respositories ^oth public and
private), as well as the files and records of the petitioning group, as necessary
to verify or supplement information provided in petition. ..
5. Conducts field research needed to verify, clarify or expand upon information
provided in the petition regarding anthropological issues.
6. Evalutates and analyzes available evidence and other information to
a. determine whether the petitioning group ahs lived and continues to live
in a community separate from surrounding social groupsland is identified
by others as a distinct Indian community. -> '£
b. determine whether the petitioner's members descend fjfom a historical
tribe or tribes. * :/
c. determine Whether the petitioner historically iriaintairied'a^rcominues
. r T--y*°. maintain tprrnal and/or Informal political influence£r other authority
. over its members as an autonomous entity. -:::-.v:;^-J^$^N|&'1--
7. , Writes draft technical report on available anthropological evtdfenci.^S1
B. Writes draft summaiV^nder.crrteriaiBS.^alTXb), and tc)V
9. "Participates in in-lipuse staff review of drafts and provides necessary evidence
^-ii_, :&*&;v:£?- ^^-^t^Jlte^^ -v
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13. Provides technical support to "Solicitor/ ' . .
14. Participates in preparation of the Administrative Record for the Court.
15. Serves as Expert; Witness if -called. .^
' '
-------
Administrative Area:
16. Serves as staff person with administrative responsibility for all requests for
information arising from cases in assigned geographical area. (Anthropologists
currently have administrative responsibility for the Northwest and Mid- Atlantic.)
Other activities:
17. Provides technical expertise regarding anthropological issues,
- y
-------
NOV 14 '96 03:03PM U5ET P.2/3
BACKGROUND OF USET
The United South and Eastern Tribes, Inc [USET] was originally formed in 1969 by the
leadership of four tribes in the Southeast. Originally formed as the United Southeastern
Tribes, the name was officially changed in 1978 to the United South and Eastern Tribes
to better reflect the geographical spread cf its membership.
The four original member Tribes, the Eastern Band of Cherokees, the Mississippi Band
of Choctaws, the Miccosukee Tribe and the Seminole Tribe of Florida, fen that by
uniting as an inter-tribal council on many issues and in dealing with the federal
government there would be "Strength in L nity."
When those tribal leaders met in Cherokee, North Carolina, little did they realize that
those concepts of unity would last as an example to many other tribal governments in
this country. Nor did they realize that their membership would grow to its present size
of twenty-three tribes. These federally-rewgnized tribes range from Maine to southern
Florida and to eastern Texas, representing a population of more than 55,000.
The current membership is composed of the following tribes: the Eastern Band of
Cherokee (North Carolina), Chitimacha Tribe of Louisiana, Mississippi Band of
Choctaw, Coushatta Tribe of Louisiana, Miccosukee Tribe of Florida, Saint Regis Band
of Mohawk Indians (New York), Passamaquoddy Pleasant Point (Maine),
Passamaquoddy Indian Township (Maine), Penobscot Nation (Maine), Seminole Tribe
of Florida, Seneca Nation of New York, HDulton Band of Maliseets (Maine), Poarch
Band of Creek Indians (Alabama), Tunica-Biloxi Tribe of Louisiana, Narragansett Indian
Tribe (Rhode Island), Mashantucket Pequot Tribe (Connecticut), Wampanoag Tribe of
Gay Head (Aquinnah)(Massachusetts), A abama-Coushatta Tribe of Texas. Oneida
Nation of New York, Aroostook Band of Ivlicmac (Maine), the Catawba Indian Nation of
South Carolina, the Jena Band of Choctaw Indians of Louisiana, and the Mohegan
Tribe of Connecticut.
As a non-profit inter-tribal organization UBET serves two main purposes: it provides a
forum for the exchange of information and ideas among the 23 USET Tribes; and, it
provides a vehicle which allows these tribes to jointly receive contracts and grants from
federal and state agencies, as well as the private sector.
FOR FURTHER INFORMATION CONTACT: Ms. Wanda Janes, Tribal Liaison Officer
at (615) 872-7900.
-------
-------
PASSAMAQUOD
TRIBAL TRUST
LANDS
/£* .rT-. .^is. --_'
LEGEND
for Minor Goil OinMxu
ATTEAN TW P...
T 5 R 1 N B K P
INDIAN ISLAND PENO8SCOT INDIAN RESERVATION
-------
MAINE
INDIAN
TOWNSHIP
RESERVATION
BANGOR
PORTLAND
SCALE 18 APPROXIMATE
Passamaquoddy Tribe Reservations Location Map
-------
SCALE IS APPROXIMATE
Passamaquoddy Tribe Reservations Location Map
-------
TOWN'. O I F
TOWN5HIP
;tSr^arW.'«?3Ss:?
-------
-------
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FECTIVE
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11
^ 13
H .»
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S3
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