Manual
         Final
Training




m  August 1996

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Working Effectively with Tribal Governments Training
               SEPTEMBER 24-25

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
Defmition(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
1 0: 15 r 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

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MV-TW0 .x; ;'">'".,
WHO
Moderator: Jim Sappier
Tribal Representative:
Gavle Dana,
Passamaquoddy Tribe,
Pleasant Point (Perry, ME)
Paulla Jennings,
Narragansett Indian Tribe
(Charlestown, RI)
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
tflPftfr^fe ; ,id&?' *$"- - ' , "\
.^O^^o^.ix.x^ 	 < 	 '.«...:
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
f$0~w ;;;;_'„
WHEN
9:10-9:30
9:30-11:30
(With Break
At Convenient
Time)

11:30 -Noon
12:00-1:00
1:00- 1:30
1:30-2:00
2:00-2:30
2:30 - 2:40
2:40-3:00
3:00-3:45
3:45-3:55
3:55-4:00
END TRAINING

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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
HI. 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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             IX.

CHAPTER TWO


             I.
             II.
Tribal State Relations
Selected National/Regional Indian Organizations
O VERVTEW OF FEDERAL INDIAN LAW AND
POLICY
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
Indian Country: Changing Times and Federal Policies
A. Earliest Treaties (1608-1830)
B. Removal (1830-1850)
C. Reduction of the
Indian Land Base (1850-1871)
D. Assimilation and
Allotment Era (1887-1909)
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                          E.     Indian Reorganization                     II      24
                                Act of 1934: Support of
                                Tribal Government  (1934)

                          F.     Termination: An Old                      II      24
                                Policy With s New
                                Twist              (1950-1970)

                          G.     U.S. Indian Policy   (1970-present)       II      25
                                Since 1970 - Self
                                Determination Act
                                        11

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                                                                              II       27
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 THRRF. 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
Government-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. EPA'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                  III      43
             Environmental Protection in Indian
             Country

       F.     Memorandum of Understanding            III      44
             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                        III      44

       A.     The American Indian Environmental        III      44
             Office

       B.     Building Tribal Capability                 III      45

       C.     Tribal/EPA Environmental                 HI      45
             Agreements

       D.     Performance Partnership Grants            III      47

       E.     Tribal Assumption of Federal               III      47
             Environmental Programs

             Treatment in the Same Manner as a         III      48
             State (TAS)

             Jurisdictional Issues                      III      48

       F.     Direct Federal Implementation             III      50

       G.     Protocol for EPA Interactions with          III      51
             Tribes

V.     National Work Groups and Advisory               III      52
       Committees

VI.    Regional Programs and Operations                III      54

VII.   Tribal Operations in Other Selected Federal         III      54
       Departments/Agencies
                     IV

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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.
       1 Strickland, [Draft] "Native American Law," Oxford Companion to the United States Supreme Court, 1; see
also, Worcester v (Teorgia, 31 U.S.. (6 Pet.) 515 (1832); Cherokee Nation v  Georgia, 30 ITS (5 Pet.) 1; Johnson v.
Muntosh, 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 bora 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 born 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).

       5Cohen, Handbook of Federal Indian Law 271 (1988).


                                            4                           Interim Final - August 1996

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F  E   P  E  R  A  LLY      RECOGNIZED      INDIAN      TRIBES
                                                                                                    «.l.t« Mil

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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

                                            5                           Interim Final - August 1996

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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.

HL    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 n, 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

VL    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
       "Durov Reina, HO U.S. 2053, 2055 (1990).  See also, I Tnited States v Wheeler, 435 U.S. 313 (1978).

       'Shannon, 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-government" 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 historical 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 Between State and Tribal Legal Systems, Michigan Bar Journal, 400,401, May 1992.

       "Strickland, [Draft]"Native American I an-" Oxford Companion To The United States Supreme Court, 1.

       12See footnote 12.

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VTL   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, and 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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Vm.  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
       13Gover, 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 (CRITFC) 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 of fish, 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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                                   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.

       [T]he 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
       14 The Cherokee, Choctaws, 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 Oklahoma18 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 US v  McOowan, 302 U.S. 535 (1938); See also, US v John, 437 U.S. 634 (1978).


       17 Ahboah v Housing Authority of the Kimva Trihe, 660 P.2d 625 (Ok. 1983).


       18 Indian Country, U.S.A. v. Oklahoma Tax Commission, 829 F.2d 967 (10th Cir. 1987).


       19Chickasa\v Nation v Oklahoma THY Commission, 31 F.2d 964 (10th Cir. 1994).


       20 rhoctaw 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 farmers.  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 U.S. v McGowan (1938).
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L 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.

EL    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 affairs 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 has 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
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 (MS) 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-Determinatiori and Education Assistance Act of 1988."  The law
adds this new language:

       "(b) The Congress declares its 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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EQ.    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.21

       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
       "Cohen, 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 modem 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
Irihe, 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 Lee, 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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dealings with them and when taking actions that may affect them.  The trust responsibility
includes protection of the sovereignty of each Tribal government.

       In a narrower sense, the trust responsibility defines the precise legal duties of the United
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
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
       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.

 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).

       24TInited States v Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876).


       25Canby, American Indian Law in 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 Qglala 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 Oliphant 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 Brendale 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 Bands of the Yalcima
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.28

       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 Law, 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 bom 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-government
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.

       5. EPA has a federal trust responsibility in implementing Federal environmental statutes.

El.     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 Govern ment-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 hi 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

       AIEO 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: 1) 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 region, 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. AIEO 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;
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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, ABEO 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, govemment-to-
       government relationship, and Tribal sovereignty.

       2. The goverament-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.

 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
 (SDWA) 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 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.  The Agency is currently deliberating the appropriate interpretation of the Clean Air
 Act as to whether or not it  is
                                           49                           Interim Final - August 1996

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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.

                                          50                          Interim Final - August 1996

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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 (AEO), 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.

                                           51                          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 and 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-government 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 Group

       The role of the National Indian Work Group (NIWG) was initially defined in the 1984
Indian Policy Implementation Guidance. The NTWG 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.

                                         54                         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, HIS)
                                           55                          Interim Final - August 1996

-------
       The Department of Health and Human Services (HHS) has two Offices which
specifically handle Indian issues.  The Indian Health Service (MS) 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.  QiS 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.).
                                          56                          Interim Final - August 1996

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                                     Protection
                       Training  Seminal


                          August  1996
                   •#;-
                    s.

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                     INTRODUCTION:

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

                                                       (Overhead A)
                                                       (Overheads)
Introduce yourself.

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
AND CULTURES

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 States, 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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FEDERALLY     RECOGNIZED     I  N D.  I  A  N     TRIBES

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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 D)
c.  Break
^,  f Jl l^.*lfV
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)
 1  Indian Country
 See below.

 2. Reservations
 •      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.  Trust 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

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       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)

5  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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•

•

       t
 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 responsibility 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
Law

•      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
  jvernmental 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 hi 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 hi 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 then- 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.  [CJonquest 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)
                                    12

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 14  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 Overhead K)

 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)
                                    13

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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 the 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)
                                   14

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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.

  mis 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)
                                   15

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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

                                     16

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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-government 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)
                                    17

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b. Please note: Often, Tribes applying for EPA grants or program authorization,
must deal with a significant number of jurisdictional 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
-SO)

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.
                                       18

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   hese 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- SO)
                                    19

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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)
                                   20

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 l. EPA statutes which have been amended specifically to allow for EPA
  ythorization 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)
                                                           (Overhead R)

5. In several instances, EPA has reasoned that even though Congress hasn't
specifically provided for Tribal assumption of environmental programs hi
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
   ite's role.  These are:

      •      Federal  Insecticide, Fungicide, and Rodenticide Act
      •      Emergency Response and Community Righl-to-Know Acl
      •      Comprehensive Environmental Recovery, Compensation, and
             Liability Acl

                     (This can be found at: the Participant Manual, page 39)
                                                           (Overhead T)

6. Ask participanls which Tribes within their Regions  are authorized to regulale
then- 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 assisl 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 Government-to-Government Relations with
Native American Tribal Governments:

•      Have class read  the memorandum.
•      Discuss  how 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.
^fter break, Training will focus on national Tribal programs (building Tribal
capability: 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 obj ectives of the GAP?
                                                            (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-government relationship, and Tribal
       sovereignty.

       b. The government-to-government 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 lot of time on this TEAs are one of the most
important tools EPA can utilire 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 CC)

20. Explain how a Tribe could assume primacy for Federal Environmental
Programs.

                                   27

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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 points 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 50)
                                                            (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
identify 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 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

                      (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.

                                    29

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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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          FFECTIVEm
          GOVERNMENT!
         Appendix  A
           JL J.
U.S. Hnvironrnental Protection
       Training Seminar


         August 1996

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                               APPENDIX

President Clinton's April 19, 1994 Memorandum: Government-to-Government 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              ^5
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                                       c^.5-

Publication of Regulation Simplifying EPA's Process for Qualifying Indian Tribes for        -3. 5
Program Approval (i.e. "TAS" Simplification)
                                                                                o 
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                         THE WHITE HOUSE

                           WA SHIN GTO N



                          April  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 agencr"
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, D.C.  20460
                                      MAR 1 4 199*

MEMORANDUM

SUBJECT:   EPA Indian Policy                                        WE ADMINISTRATOR

TO:         All Employees
       In 1984, CP A 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 govemment-
to-government basis to enhance environmental protection,  has been reaffinned 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 Policy 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 1, 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 hew
implementation guidance.  This guidance will provide a blueprint for transforming Jhe
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; \ronm*nt.   I as!: all of you to help make this effort a great
 success.
                                              Carol M. Browner
 Attachment                   .

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                                                                   11/8/84
f
           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 *i!1 work directly with T.ibal
Governments on a "gov«rnment-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 in 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.l require changes in  applicable statutory  authorities and regulations.
It will  be necessary  co proceed  in a carefully  p*iaied way, to learn from
successes.a-d  failures,  and to gain experience.  Nonetheless,  by beginning
work on the priority  problems that  exist now and continuing in *.he direction
established under  these  principles, over time we  can significantly enhance
environmental  quality on reservation lands.

POLICY

      In  carrying  out  our  responsibilities  on  Indian  reservations,  the
fundamental  objective of the Environmental Protection Agency  is  to protect
human  health  and the  environment.   The  keynote  of this  effort  will:be to
give  sp.cial   consideration  to Tribal  interests  in making  Agency policy.
and  to  insure  the  close  invo' /ement  of  Tribal  Governments  in   making
decisions  and managing  environmental programs  affecting  reservation  lands.
To meet  this  objective, the  Agency will  pursue  the  following  principles:

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1.   THE AGENCY STANDS READY TO WORK DIRECTLY WITH  INDIAN TRIBAL GOYES.NMEN7S
ON A ONE-TO-ONE BAS'lS  (THE  "GOYERNMENT-TO-GOYERNMENT" RELATIONSHIP), RATHE.R
THAN AS SUBDIVISIONS OF OTHER GOVERNMENTS.

     EPA recoilIzes  Tribal  Governments as  sovereign'entitles with 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  js political  subdivision:   of  States or
other governmental units.        .       .
2.   THE AGENCY WILL RECOGNIZE TRIBAL GOVERNMENTS AS THE PRIMARY PARTIES
FOR SETTING  STANDARDS,  MAKING ENVIRONMENTAL  POLICY  DECISIONS AND MANAGING
PROGRAMS FOR RESE .VATIOfJS, CONSISTENT KITH  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 MILL TAKE AFFIRMATIVL 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
responsibil.ities  for  reservation  lands.   Within  the constraints  of tPA's
authority and  resources,  this aic   ^ill  include  providing  grants and ither
assistance to  tribes  iimllar to  -hat  we provide  State  Governments.   The
Agency will,  encourage  .Trices to  assume  delegable  responsibilities, (1 .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  1n  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  TAKE  APPROPRIATE  STEPS TO REMOVE EXISTING LEGAL AND
 PROCEDURAL IMPEDIMENTS  TO  WORKING DIRECTLY AND EFFECTIVELY WITH TRIBAL
 GOVERNMENTS ON RESERVATION PROGRAMS.

      A number of .serioirs  constraints  and  uncertainties 1n the language
 of  our statutes  and regulations have limited our Ability 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
      Policy, we will  seek  to remove those  Impediments.
•5.    THE AGENCY, IN' KEEPING WITH  THE  FEDERAL  TRUST RESPONSIBILITY, WILL
 ASSURE THAT TRIBAL CONCERNS AND  INTERESTS  ARE CONSIDERED WHENEVER EPAlS
 ACTIONS AND/OR DECISIONS MAY AFFECT RESERVATION  ENVIRONMENTS.

      EPA recognizes that a. trust  responsibility derives  from the his-
 torical relationship between the  Federal  Government and Indian Tribes
 as  expressed  in  Certain trtaties 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   Us
 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
 "overnments ^ neighboring States,  Tribes, or  local  units of gove.-nment.
 Accordingly, EPA  will   encourage  early   communication  and  cooperatlor
 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 In  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  THEI*  INTEREST  AND.
 SUPPORT. IN . COOPERATIVE  EFFORTS  TO  HE.P TRIOES  ASSUME'  ENVIRONMENTAL
 .'10GRAM  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  WILL  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  woric
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 status1 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  in  a timely fashion.

    In 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  noncompUance by  orivate
parties on  Indian  reservations as the Agency would  to noncomplianc   „/ the
private sector  else*.,ere in  the  country.  Wher   the Tribe  has  a substantial
proprietary interest  in,  or  control  over,   the  privately  owned or  managed
facility, EPA  will  respond  as  described   in  the  first  paragraph  above.

9.   THE AGENCV 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 "fjctively 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.
                                    William D. Ruckelshaus

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                                                                      5
                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                           WASHINGTON, D.C.  20460

                               JUL 1 0 1S31
MEMORANDUM
                                                        TVI6 AOMJNISTRATOfl
SUBJECT:   EPA/State/Tribal .Relations

TO:.  •     Assistant Administrators         '         .
           General 'Counsel  .        .
           Inspector General                              •   •
           Regional Administrators
           Associate Administrators
           Staff  Office Directors


      Earlier  this year I shared with- you ay views concerning
EPA's Indian  Policy,  its implementation and its future direction.
I would now like to further emphasize my commitment to the Policy
by endorsing  the attached paper that was coordinated by Region
vill  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. .         ....

    .1 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

                                                                .Qtcya+a Pu>tf

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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 huma'n
 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 whom 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  who 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
 shown themselves  to share the states'  sensitivity to the concerns
 and  interests of  the entire reservation populace,  whether those
 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 vill 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 among
       Tribes,  States and  local governments.   This is not intended
       to lend Federal support to any one party to the jeopardy of
       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 AND PROCEDURES FOR EPA ACTIOK

       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 the. Administration of
 Environmental Programs 'on Indian Reservations and. the
  accompanying Implementation Guidance, both signed on
  November 8, 1984.

       2.    The Agency will, 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 vill 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
»  where that government can demonstrate adequate jurisdiction over
\poilution 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 encour.ages 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 with the
 Menominee "Tribe to develop a joint tribal/state  RCRA.program that
 can' serv.e' as a model of mutually -beneficial cooperation- for oth-er
 states'and'tribes.            '                            '

      5.    The  Agency urges tribes to develop an  Administrative
 Procedures Act (APA) or other means for public notice and comment
 in  the tribal  rule-making proces-s.  Many tribes  now 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 and  State  governments,  managing regulatory
 programs  for reservatio-n  and  state  areas,  respectively/  may
 .encounter  transboundary problems  arising  from  inconsistent
 standa-r.ds,  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.   Othervise,  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  will 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
                                                                              OFFCEOF
                                                                           THE ADMINISTRATOR
MEMORANDUM
 N          •.'•''".-
SUBJECT:   Announcement of Actions for Strengthening EP A'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
                                                                        Recycled/Recyclable
                                                                        Printed with SoyjC«noU Ink on. papor ttut /  .
                                                                        eonuirwctlMct 50% recydod 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 TOCj on way? 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 theSecond 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 folio wing 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, in                    j
 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.

                                             1

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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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       AdnunistratbrSvith responsibilities for Tribal activities should consider assigning a
       professional, lull-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, Assistantand 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 develppment.r

9)     Resource Investment in Tribal Operations: Some encouraging first steps have already
       been taken to increase resources for Tribal operations in the FY ,199$ 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.
                                            4

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  MEMORANDUM 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

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

B.  Description pf 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  guality  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 (CERCLA)  as  amended,  and the Toxic
                              >


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


•pf thfe  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
                               t

          e.  Potential Overlap


                      Technical Assistance (BIA, EPA,  IHS)


                      Monitoring (EPA, IHS,  BIA)


2.   Radiation Hazard Identification and Mitigation


          a. BIA  -   Technical Assistance,  Coordination  with.


                      EP/VTribes, 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
                    i

            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,  IHS)


                      Monitor Radionuclides in Water  (EPA,  IHS,


                      BIA)
                  * *           >

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



                                8

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            Coordinate with EPA  and other Agencies on
            Underground Injection  Control Direct
                            *
            Implementation Programs
        . .     .••       v
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
                     V

            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




                     10

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                                                               / o
            Tribes Treated as  States  to  Carry out


            Appropriate Functions
                           •

       f -   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
                      11

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            Construction for HUD Homes
            Construction of Sanitation Facilities  for
      - •    'BIA Housing  Improvement  Program (HIP),
                    i
            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 O & 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

                      12

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            Maintenance of Sanitation Facilities
Clean Water Act
        --   Design and Construct Waste Water Collection,
                     \
            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)

                     13

-------
                      Assist Tribes  in Applying  for  EPA Grant


                      Programs (BIA,  EPA, IHS)


4.  Underground Storage Tanks
                               t

          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   -   Technical Assistance, Surveys,  Testing,


                      Monitoring, Facilitate Non-National Priority


                      List (NPL)  Cleanup, Emergency Response


          b. EPA   -   Enforcement, NPL Cleanups,  Emergency


                      Response, Pre-remedial Evaluation,


                      Cooperative Agreements with Tribes, Technical
                                14

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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)
                               r

                      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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                                                                         /9
                      Management Plans


                      Provides Funding  as Resources Permit  for
                                     •

                  . .   Solid Waste Projects
                              V

                      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




                                17

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            Cooperative  Agreements  Grants to Qualified


            Indian  Organizations  and Individual Tribes


      ' '     -where Required Authorities  Exist  for
                     V

            Enforcement  and  Pesticide Applicator


            Certification


            Grants  to Remove Asbestos from  Indian


            Schools


            Training for Enforcement Inspectors


            Endangered Species  Protection Compliance,


            Giroundwater  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. IHS  -   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.  jnteracrencv Actions
                                      •


The following actions are agreed to:
                               V


1.   BIA, EPA, HUD,  and  IBS 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

-------
     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
                               V

     appropriate.  Potential overlap areas may be addressed at the



     area/region or headquarters levels.



3.   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

-------
that such meetings would be beneficial.  Minutes of  those meetings

will also be taken.
                                                     NOV     1980
  ASS is
ian Affairs
                                                         ^  •' 5
                       - Environmental Protection Agency   Date
Assistant Se
                               c  and  Indian Housing
                               Date
    rector/  Indian Health  Service
                               Date
     Pi fc
 Assistant  Secretary  for Community Planning
 and Development
                            Date
                               21

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                                              OFFICE OF
                                              WATER
                      .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           WASHINGTON. D.C. 20460
                              MAR 20  !S95



MEMORANDUM                                            .     .

SUBJECT:  Final  EgA/Tribal Agreements Template

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 "workplans" 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.
                                        Prtnt*d«ltnSoy/C«nol«M(onp«p«rtti«
                                        contain* « IOM so% racyctod RMr

-------
     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 ray 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
                                -2-

-------
    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 "workplans" to be established between the
Regions and  the Tribes.  These plans were  to allow for-
maximum flexibility so  that Tribal specific  needs co'uld 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
"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-fol-low-ing.-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
     Che Tribes and tc 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.)

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.

                      .  '   -2-

-------
     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, wqrkyears,- 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 whil'e maintaining key activities that
     lead to fulfillment of longer term goals..

(NAME OF TRIB-E1 /EPA. SPECIFIC  ACTION  PLAN

l.    Describe Tribe's goals,  objectives and desired
     outcomes.

2.    Identify .short-term resource needs  (FY 95 &  9"6) .

3.    Identify long-term goals through -(FY 98)  if -possible.
4 .    Identify goals  for program assumption and  the  year in
     which the Tribe  intends to apply for program
     assumption.

5.    Identify direct  implementation needs from  EPA.

6.    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 working with the State~~an
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                                                       ATTACHMENT- I

              UNITEDlSTATESlENVlRONMENTAU'ROTECTTOK'AGENCf

                         WASHINGTON, D.C: 20460:
                                                          OPFCEO-
MEMORANDUM

SUBJECT?  Publication  of: Regulation; Simplifying:EPA's
           Process^ for Qualifying: Indian/Tribes, for Program-
           Approval.           -•

>ROM:     Richard  E. Sanderson.
           Director          7  „
           Office, of  Federal Aeriviti*

TO:        Addressees.
                                     t

      The.-regulation  designed, to simplify  EPA's process^ f or
qualifying? Indian, tribes for program: approval- (the; so-calledz
"treatment-as-a-state" or TAS. regulation)  was, published: in thes.
"federal Recriaterr on  December 14,  1994^ —Copies^ ofc the; regulation:
and. a summary thereof are - attached*.  We? request: that: the? Regional-
Indian Program: Coordinators transmit, copies, to. the.- tribes: im
their regions.

      A companion regulation simplifying-, the. process^ for Indian:
tribes to qualify  for financial, assistance- was. published, in. the
Federal Register on  March. 23, 1994.

      This  is  thet culmination: of air effort which began: in 199-2..
when an intra-agency- workgroup: determined: that the^ process, f orr
qualifying Indian: tribes? for financial assistance* and: programs
authorization: was, burdensome? and. unnecessarily complex-  Thi£?jiew*
process- should: make? it easier for tribess to: obtain: EPA- approval.
 to assume* thes role- Congress envisioned, for them: under the.
 environmental- statutes^

      This, action- completes: all. activities in the Office; of.
 Federal Activities; relating: to the? Indian- program: which: has^ nowi
 been- transferred to the, American Indian: Environmental; Office;
 within  thes Off ice.- of- Water.   It. also, fulfills, our commitment to:
 Bob  Perciasepa-,  the- Assistant Administrator for Water, to.
 complete: this: project and- we? are complying- with: the request of
 Terry- Williams?,  the; new* Director of: the: American: Indian
 Environmental. Office, to- transmit the: regulation.-

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     NT •iacarv appMotanom tor mn ha»11 Cain>. wte lads th*»
•f :Cortr,  and: to: all. of: yott vto vorkadt«o= dlligairtly bir
Wo ekgroupr Rapro*aatativ«»
R«3lonal. Indian: Progrimr Coordinator*;
Rtjlonal, Indian: Lav. xttorncyr- workgroup
Re iidojuactarv* Indian
Ffidlaral- Intar-Aganqr Indian- Diseuiiion- Croup.
Ainirican: Indiarc Environaanta^ Of f icfc
Tr ibai. Opar*tiow&Committaa«
       of; Con«jrrM«ional- and; Lagialativa* Affairs (Karthac Woffordji

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                u;fl>. gnyjroimenta-l Protection-: Agency


      The: Firurl. Rule under- the: Clean: Water* and: Safe. Drinking-      r
Acts  is designed: to simplify  EPA's process*, for- qualifying: Indiam
tribe«> for- program? approval*  It was* developed^ because*, the* Agency^
process, for- approving- Indian  tribes* for- "Treatment: as* a  State?*"^
(TAS)  under- various programs; has. proven: ta b* burdensome? andi
offensive to- tribes.
      The*. Clean: Water, Safe Drinking- Water; andU Clean: Air: Acts?
.authorize- EPA to. treat Indian tribes* as. states* f orr purposes* ofr
certain: types* of grant, awards- and. program authorization-.  The*
only statutory requirements, are- that: a tribes be? federally
recognized, have- a governing- body 'carrying- out substantial duties*
and: powers , and. have- adequate, jurisdiction: and. capability to:
carry out ther proposed, activities.  Thet Agency has/ promulgated:
regulations, f orr implementing this authority under* the. Water: Actsa.
and. has proposed, regulations under* the; Air Acts..
Change f ^7 ttlf trl^q' Process'

      ?Vt  El^nination- of separate "TAS* approval.

 —   None-, of the. statutes, compel the. useiof. a formal TAS  or* otherr
prequalif icatioir process^ separate f romi approval, of. thei request:
for- a grant orr program: approval.  However-, the. Agency initially  -
chose- to implement- provisions: of the- Clean: Waterr and: Safe
Drinking Waterr Acts, by establishing: a f ormirl prequalif ication:
process under- which, tribes, can- .seete. eligibility underr 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: f orr program:, approval.   Underr
the: new, simplified: proceasr  ther Agency will, ensure? compliance*
with statutory requirements- as an-, integral, part of. the? process* o£r
reviewing program: approval applications^

      R. •Mint'al'gB- use- of the* term*

      The. termr "treatment-as^a-state*- is. somewhat: misleading^
may be offensive- to tribes..   To the- extent possible,
amends- existing- regulations-- so aa to- discontinue* use)> of. thek terms
 "treatment as- a state;"   however-, since-: this, phrases is included*
 in several statutes, its  continued- use* is  sometimes? necessary*

-------
      Aa a gaaaroL rula>- tha* "recognition** andr "govammantal*"
 ruquiramantarfaara* aaaantially tha^aamaftundarrthaxClaam
 Drinking- Hataar? aiufc Claan: Air: Aetav Thai nawprocaaa* will.'
 ts tic- -by aatabHahinar identical. raquixamantR f orr »«vfny +•»!*••*
 a) lowing;. undarr- aach: atatuta- Koraovarrr tha* facfc *»
 mofc tha.- "raeognition"- orr "govarniantal function*?-
 u.niarr tha»ClaattXir:Act:oc-aitna3rot tha»WatajrActr.vill.
 •utabliah: »^»^- it maata. tnoaa- raquiramanta: undat all. thra
                                and/or*
                          regarding- tna-MtetM*«h»^te- of »
•^ afiadietrion-,

      Bacauaa* a triba»may hava* juriadictiott over; and. capabili
tcr carry out*, cartain. activitiaa* (A^sUj. protactioa: of: th«r(
c f,1. a particular laka* f orr tna^ Claan: LaJcaa* program .undarr tha/ciaam
Wntarr Act) r but- notr otfaara- fa.q.. vaata^aanagamant: on- a portioit:
of  tha: raaarvation- far: ramovad- from- any laJcaa.) t tha. nav> procaaa*
di oa*^ not: foreclose* thtr Agancy f romi ma kin 7: a apacif ic.
dmtarmination: tnat a .triba* has*, adaquata^ juriadictional. authority
and. adminictr&tivac and: prograamatic: capability baf ora-. it  approvaa*
«nch- tribal: program*.              .'

      Tha- portion- of. axiating: r agulationa: on juriidictional;
cuitarmination- undarrvhich-govarnmanta:.coamantr on- tribal.
.3 iir icdiction- wiir b«.-altaradi undarr tha,: regulation :-
      (1)   for- approvala f ofx all- Drinking.- Watarr ragulatory p
Mid -moat: Claani Watarr programai undar- a*i ttlng^iragiTla.tiona>
vlll  not authorixa^a atata^-to oparata^a'program:
 intarmining that: thsx atatai-ha*> adaquata^ authority to. carry out=
1 jioaa.-. actiona^ raqoiradi to; run- that progttr^ Thia^appliaa>alaosr tor
         aaalclngrapprovalrv .an*; «n«uraa* thafca- cloaag-analyaia; ofc
     lagaL baaia* ofr.a^triba^ a  juriidlction^vill T>ccnr: baf eras
                                ngly t a^-aaparatai.-   '' .     .
 riirisdictional raviavc i«: not naadadt tor varify thafc a-
•iitiaz «tatutory » r •quiasamanfev . and- la. tharaf era* •Ttnllnat ad-T f orr all.
]xrogramas undarrthaa8aia»Drin)cingr Watarr Act^ andrf od the^ Claanr
^ ratarr Act^a- 404- and^NPDISiprogranav  Thias changa*vill. hava* tha*
 .tff act: onlyrofr alininating: duplicativoraquiramanta-r

      ( 2 )  f orr thai Watarr Quality standards^ program?, tharai ia» nor
 raviav ofr tribal authority aa; part: ot thai programs approval.
 procasa-.  Accordingly ,  f orr that: programs a  cnrnaante procaaa* vill-
 3 a. rataihad..  Hovavarr,  thai Agancy amphaaixaaa that comaantfct muatr
 :«t of farads in a. timaly  mannar- and: apacif iaax that: whara- nor tinaOy
 ronaanta ara^ of f aradv tha* Agancy will, concludaethat thara? ias net
 objection- to- tha: tribal, applicant' a. jurisdiction*!, aaaartiom.

-------
    EPjfc will- no: longerr be*required^ br re???f*:Lon> tf
ritl£ tto PT—^""^ ot thtelnteriorr although: it may, in:
conmtLtr
   isdictionaii authority-.
                         malcinor a.dwsisionr as* to: triba
                                 r««olution: of: tribal
                           r.!**^
                             progra«>. -it: vill. ordinarily
                                program unlw* a sutaequenfc
     «*


ragulatfc actlvitte» J^tJ^ !^ir»etiviti.2L in anothec mediums.
    bliahi. its* jurisdictiom overr acttvitiesi' in. anpcuT- Bo«u.u«5.
     TT«M.^4.h«rn««ratsprovai. process^ asvundetrtheioldr- the*Agency
.iii, SS2S^"^^^r.!f.i1^J^lLF^S^i-
 satisfactorily- establisned
          will, continue^ to imakez a. separateidetermination: of. tribal
                  cht programxf orr which, it-approves^ tzitew.
                  nDrinSngr Haterr Act: and^ Clean: Haterr Act
 meetsr the^ statutorr

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     Federal  Register  /  Vol.  59,  No. 239 / Wednesday. December 14. 1994 / Rules and Regulations 64339
  'governmental relations. Nitrogen
  ide. Ozone, Reporting and
  rdkeeping requirements, Volatile
  oic compounds. Note: Incorporation
  iference of the State Implementation
  for the State of California was
  .wed by the Director of the Federal
  ster on July 1.1982.
  ted: November 28.1994.
  Wise,              "
  rg Regional Administrator
  at *2, chapter I. title 40 of the Code
  jderahRegulations is amended as
  jws:

  (T52-{AMENOED]

  The authority citation for part 52
 inues to read as follows:
  dhoritr 42 U.S.C. 7401-767K).

 partF—CaWomla

  Section 52.220 is amended by
 ing paragraphs (c) (186)(i)P)(2) and
 :)(i)(A)(2) to read as follows:

 220 Identification of ptan.
  •         •    •
 ) ' *
 86) •
 JRule
  •
 94) '
03. adopted on June 4.1991.
 V) • •• •
 .) Rule 59. adopted on September 15.
 2.
  *    •  
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  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 the~types 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 functions requirement
• under either of the Water Acts or the •
  Clean Air Act will establish that it meets.
  those requirements under both statutes..
  To facilitate review of tribal
  applications. EPA will request that

  a tribe has been approved for^TAS"
  (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
  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
  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 lo make the require**
  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

   4. Simplified Jurisdictional analysis. •
  A tribe may have jurisdiction over, and
  capability to carry put,'certain activities
 .  j.. 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 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 totribal eligibility for'
 each particular program,
 \ The portion of the Jurisdictional  .  •
 ^itfarminiiHon '""for urhtfji   .        i
 governments «*r»nimiant 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 close
'analysis of the legal basis of a tribe's
 jurisdiction will occur before program
 authorization.1
 . Accordingly, a separate 'TAS"
 Jurisdictional review is not needed to
 verify that a tribe meets the statutory
 Jurisdictional 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 is no objection to
. the tribal applicant's Jurisdictional
 assertion' Moreover, to raise a
 competing or conflicting claim a
 comment .must clearly explain the .
 substance, basis, and extent of its
 objections. Finally, when questions are
 raised concerning a tribe's jurisdiction.
 EPA may, in its discretion, seek -   -
 additional information from the tribe or
 the. commenting'party, and may consult
 as it sees fit with other federal agencies
 prior to making a determination as to
 tribal Jurisdictional authority, but is h6t
 required to do so. Henceforth, EPA will
 no longer be required, by regulation, to
 consult with the Department of the
 Interior.  ' • .      s   ."•     -  • .
   Finally, the Agency notes that certain
 disputes ^ncTnlng tribal jurisdiction
 maybe 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 tripe 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 {urisdictional
 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 ppctioQ'of a tribal^;   '.' ,
appDcafion covering certain preas. while
 withholding approval of tiie portion of
an appUcauon «ddjn?ssing those land
areas wh,^tribaT authority-has not
beeri satisfactorily established. See. eg.
S3 ER 373$S. 37402 (September 26.-
 1988)'{SDVyAk'54ltt.l&53; 1*355 .,..

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         Federal Register / Vol. 59. No. 239 /Wednesday, -December 14.  1994 / Rules and-Regulations 64341
  (April 11.1989) (Clean Water Act   ~
  Grants); 54 FR 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
  Standards. Section 404, and NPDES
  regulations will be amended to conform •
  to .the CWA grant regulations, which do
 not specifically prescribe the material a
 tribe must submit to establish  • ,
      illity. Ordinarily, the inquiry EPA
 wul make Into the capability of any ,
 applicant, tribal or state.' {pi a grant or

 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); § 145.1(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    : . Y •
 administering environmental programs;
 a lack of such experience will not'
 preclude a tribe from demonstrating
 capability, so long as it shows that it has
 the necessary Tnnnnfimumt and
. technical and related skills or submits a
 plan describing how.it will acquire
 .those skills.  .         ..  -  .  v
   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-  •
 ppmpiTTKTjHflHnrn for other r^|nnp<>5
 One commenter did not express support
 or opposition but urged. EPA to continue
 to stress that tribes should anqct 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 the 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 recognize tribal
 authority over all-environmental matters
 within reservation boundaries, without
 requiring tribes to demonstrate their
 inherent authority.       •   ..  ...
  Response: EPA recognizes 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 carry out the functions it proposes to
 undertake.
  Comment: EPA is to be commended
 for eliminating the state opportunity to
 comment on tribal jurisdictional
assertions for all SDWA programs and  '
 for the'Clean Water Act Section 404 and:
NPDES'programs. However, since tribes
 cannot comment on state jurisdicu'onal
assertions in any programs, 4n fairness. -
 EPA should also eliminate state
 opportunity to comment on tribal
 jurisdictional assertions regarding Water
 Quality Standards.   '.  .  •    .
  Response: EPA continues to believe"
 that it has .the legal authority to approve
 a tribal Water Quality Standards .
 program' only upon a determination that
 the tribe -has adequate authority to
 operate that program, and that state
 comments may be useful to the Agency
 in making that determination.
   Comment: EPA could further simplify
 the TAS process by providing that, »-
 when EPA reviews a new TAS
 application for a tribe that has already
 obtained TAS approval for one program,
 EPA will rely on the jurisdictional  •
 assertions in the prior approval to
 establish jurisdiction for a subsequent
 program. Where the earlier
 jurisdictional assertions do not establish
 jurisdiction adequately for the
 subsequent application, EPA would
 notify the tribe of any deficiencies and
 the tribe could then supplement or
 amend the original jurisdictional  •
.statement": •-•;'••-. :v.'':;  >
 .Response: EPA agrees .with the '.'•.-,, .
 commenter that 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 thafbelieves 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.«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 not'believe 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/ states should not be
totally bypassed in decisions to approve '
 tribal regulatory programs.•••••>'. •-•—.:;'
  Response: Ailistatett in the-F«deral • -
Register notice Amending fhe EPA j  "-~-
 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 cxnnments from staies.-EPA.
 agrees that it should obtainiinformatibn
 from states concerning tribal* ' •• '"  ~
 applications  for program approval, and

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   64342 Federal Register / VoL 59. No. 239 / Wednesday, December 14. 1994 /  Rules and Regulations
              1 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 inconsistency in the definition
   of-State" inS 12ZJ2. (which reference*
   Indian tribes that havejpbtamed
   approval of their NPDES program but '.
   not their WQS program) be changed so
   that water quality standards set by  .•••  •
   approved tribes will be protected in  .
   NPOES permiU under §§122.44,124*3
   arid similar provisionKAnd (3) the'.,.
   regulations for the 'dispute resolution
   mechanism. 40 CFR 131.7, be revised to
   expressly authorize the use of this
   process for resolving disputes between1
   two or more tribes that have differing
   standards for common bodies of water.
     Response: (1) EPA believes it is
   unnecessary to amend the 401   .
   regulations in Part 121 through the
        it TAS revisions rule in order to
      _/ that tribes have the authority to
    . _ vide 401 certifications once they
   _ave approved water quality standards
   (WQS). It is EPA's position that tribes
   clearly have 401 authority once they
   receive approval of their WQS as
   specified in 40 CFR 131.4(c).
     (2) EPA also, does not believe that
   changes are necessary to the definition
   of "State" in § 12Z2. The intent of
   EPA's regulations was to require the
   permitting authority (whether EPA oran
   authorized NPDES State) to issue
   permits which comply with all
   applicable water quality standards
   (including WQS approved by EPA for an
   Indian tribe). EPA interprets its
   regulations to require that all NPDES
   permits comply with applicable and  .
   EPA approved tribal WQS regardless of
   whether the tribe has been authorized as
   a permitting authority for the NPDES
   program. EPA'$ new regulatory •.••>•
   provision in 40 CFR 124^51(c) supports
   the tribes'401 certification authority
  . and reads as follows: "As stated in 40
TM3FR..131.4, an Indian -Tribe that is- ••••-.
   qualified for Treatment as a State for
          i qualified for treatment as a /• ••
  State for purposesof State, certification -.
  'otWQS pursuant to sectioa401(aHD of
   the Act (Glean Water Act] and Subpart • ...
  •D of thispartAThe preambtaofthe -:;.:«
   final NPDES rulejttSaFR67967.  •..-••;.••••
 - (December<10cl993) discusses thi* new •
   pro vision in-mora--deptb>'<.  .-•.-- «-.•••• ..
   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 where 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
 .issuance of the draft permit where there
 is significant public interest In so doing.
 Under CWA section 402(bK5). the
 afijpcted Tribe may submit written
 recommendations to the permitting
• State ahd'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 refecting
•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 this 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
 64688-64889. 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
 the-Safe Drinking Water Act The  -
Agency should consider seriously the-   •
 inclusion of these important programs   •
 under the new regulation as welt*' •*•*'•• •"
...  Response: EPA does not believe that   •
Ht would bo appropriate to-expaadthe •.••
 scope of the regulation at this stage of
 its development However, as pointed
 out previously in the Summary of this
 .regulation, to the extent possible, 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 on March 23.1994 (59
 FR 13819Xshould be adopted as a final
 rule as discussed above and set fdrth
 below.v  •/"-'  •' •••••'•-•• _.- • .-

 Executive Order 12864    . .   .  ; .

  tinder Executive Order 12866. [58 FR
 S1735 (October 4.-1993)] the Agency
 must determine whether the regulatory
 action is "significant", and therefore.   -..
 sub'ject to OMB review and the
 requirements of the Executive Order.
 The Order defines "significant *••
 regulatory action" ai.one that is likely
 to result in a rule 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 Order'. "  '
  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 «OS(b) of the RF A.
5 U.S.C. 605(b); EPA certifies that this
rule will notiave-a significant  -
economic-impact on* substantial  <
number of small entities because it    •
merely revises existingprocednral - -
requirements forlndlarttribesliy .•• . •>•-•- -
burdensome; Indian tribes are not '
conslder«d- -' •

-------
        Federal Register / Vol.  59. No. 239 / Wednesday. December 14. 1994 / Rules and Regulations 64343
 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 'Port 123
   Administrative practice and  '
 procedure. Confidential business
 information.: Environmental protection,
 Hazardous substances, Indian lands,1* "
 Intergovernmental relations! Penalties,
 .Reporting and recordkeeping .
 requirements. Waste treatment and '
 disposal. Water pollution control. Water
 supply.  •              •

 4Q CFJJ 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 fort 142
  .Environmental protection,
 Administrative practice and procedure,
 Chemicals, Indians — lands. Radiation
 protection. Reporting and recordkeeping
 requirements. Water supply

 40 CFR Part 144
  Environmental protection.
 Administrative practice and procedure.
 Confidential business information,
 Hazardous waste, Indians — lands,
 Reporting and recordkeeping
 requirements. Surety bonds, Water
 supply.
 40 CFR Part 145
  Environmental protection, Indians —
 lands. Intergovernmental relations.
 Penalties. Reporting and recordkeeping
 requirements, Water supply.

 40 CFfl Port 233
  Environmental protection/
 \dministrative practice and procedure,
 ntergovemmental relations, Penalties,
 teporting and recordkeeping •   '
 equirements; Water pollution control

 (0 CFB Port jsblX'^.-   .'.-..
Penalties, Reporting and recordkeeping'
requirements. Sewage disposal.
  Dated: November 18, 1994.
Fred Haosen,
Acting Administrator    •
  For the reasons set forth in the •
preamble, 40 CFR parts 123. 124. 131.
142, 144, 145. 233, and SOl are
amended as follows:

PART 123-STATE PROGRAM
REQUIREMENTS
                    f
  1. The authority citation for part 123
continues to read as follows:   ^
  Authority: dean Water-Act 33 U^C 1251.
etteq.  •       '   •     •;' '  ' .-."•   \

§123,1  [Amended],
  2. Section I23.1(h) is amended by
removing the phrase "treated as a
State."

§12&21  (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(6)" to read "§ 123 J3(b)**
 those documents" and by revising the
 phrase "support the Tribe's assertion"  -
 to read "the Tribe believes are relevant
 to its assertion."'
• •  13. In §123.32 paragraph (d)        \
 introductory text is amended by revising
 thephrase "The statement shall  .-'.
 include" to read "The statement should
 include.".
   14. In §123.32 paragraph (d)(l) is
 amended by revising the words
 "including, but not limited to,1' to read
 "which may include."
   15. u§ 12342 paragraph (6) is  ,
. amended by revising the phrase "a..:   •.
 Tribal request for treatment as a State"
   Administrative practice and •    c  • .
  irocedura^ Intergovernmental relations, •-.
        (Am«nde
-------
   64344 Federal Register / Vol 59. No. 239  /Wednesday. December 14.  1994 / Rules and Regulations
   read "meets the statutory criteria which
   Ahorize EPA to treat the Tribe in a
   iKner similar to that in whicE it treats
   a State" and by revising the phrase
   ."likewise qualified for treatment as a
   State*' to read "likewise qualified for  '
   such treatment"
        *     •
   PART 131— WATER QUALITY
   STANDARDS

     1. The authority citation for part 131
   continues to read as follows:
 '  f 191.8  [Arnendea --•:•'.  '-..   .• =• ,  •••
   • 2. IA§ 131.3 paragraph (j) is amended
   by revising the phrase "qualify for
   treatment as States for purposes of "water
   qualify standards" to read "to-be eligible
   for purposes of a water quality
   standards program". ".     :   :   .-.

   J131X  (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"  •

   $131.7  (Amended]
     4. In § 131.7 paragraph (b)(2) is
  . amended by revising the phrase
 ^qualifies to be treated as a State" to
 Vead "is eligible .to the same extent as a
   State".
          (Amended]
     S. The heading of $ 131.8 is amended
   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 (a)
   introductory text is amended by revising
   the phrase "treat an Indian Tribe aa 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 (b)(2)
   introductory text is amended by revising
._• the word "shall" to read "should"
•  ' - 9. In §131.8 paragraph (b)(3>  - ••
   introductory text is amended by revising
   the word "shall" to read "should-.
     10. In-§ 131.8 paragraph (b)(3j(it) is  .
   amended by. removing the semicolon . .
   and adding to. theend of the'paragraph
   the phrase "and which may include a  •
   copy of dixaimentssuclte* Tribal '..  ..
   oonstituUons^bj-laws.charters,-. , .   -
  -executive orders, codes, ordinances.; < i
  and/or resolutions which support the
 'Tribe's assertion of authority; and".  •
   11. Section 131,8(b\(3)(iii) is removed:
   12. m§ 131.8 paragraph (b)(3)(iv) is
  redesignatedas(b)(3)(iiij. *
•   13. In S 131.8 paragraph (b)(<)  . •  '  •'
  introductory text is amended by revising
  the word "shall" to read "should".
   14. In §131.8 paragraph (b)(4)(i) is
^amended by revising the phrase .  '
'"including, but not limited to" to read
  "which may tadude".  -  :.
   15. In § 131.8 paragraph (b)(5) is .   -
  amended by revising the phrase
  "request for treatment as a State," to
.  read "application".
   16. In § 131.8 paragraph (b)(6) i&.  "
•amended by re vising the phrase    I.  •
  "qualified -'for treatment as a State" to
  read "qualified for eligibility or  .
  treatment as a state* " and by removing
  the second occurrence of the phrase
  "treatment as a State".    -   '
   17, In §13 1.8 paragraphs (c)
  introductory text, (c)(l) and (c)(2)
  introductory text are amended by
 removing the words "for treatment as a
 State".
   18. In § 131.8 paragraph (c)(4) is      :
 amended by revising the phrase "after
 consultation with the Secretary of the
 Interior, or his designee" to read "after  '
 due consideration".         • ' • ;
   19. In § 131.8 paragraph (c)(S) 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
 administer 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, 300g-2.'
3008-3. 300g-4. 300g-5.  300g-6. 3OOH- «nd
 300J-9.
S14Z2 (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"
        (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 4ZU.S.G30uj-n(b)(l)"
  $ 142.72  Requkwnentsloc Tribal eUgtotthy.
    S. The Jieading-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  Requirements for TrtbaJellglbtttty
  - The 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   7    .  ;
  Administretioi>frjudginent..-of   • .  .  -
  administering (In a manner consistent   .
  with the terms and purposes of the Act
  and all applicable regulations) an
  effective Public Water System program .
 Subpart H-4ixfian Tribes .       :
  .4. The heading for cubpart H of part • •
,-442 is revised to read as set forth above.
 $142.76 (Amended]                .
   8. The heading of § 142.76 is amended
 by revising the phrase "of treatment as
 a State" .to read "of eligibility"
   9. Section 142.78 is amended by
:. revising in'the introductory text the.
 phrase "qualifies for treatment as a State
 pursuant to" to read "meets the criteria
 of."    ..'.'*
   '10. In § 142.76 paragraph (b)
 introductory text is amended by revising
 the word "shall" to read "should"
   11. In § 142.76 paragraphic) is
 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"
   12. In § 142.76 paragraph (d)
 introductory text is amended by revising
 the word "shall" to read "should"
   13. In § 142.76 paragraph (d)(l) b
 amended by revising the words
 "including, but not limited to" to read
 "which may include"      •
   14. In § 142.76 paragraph (e) is
 amended by revising the phrase "a.
 Tribal request for treatment as a State
 to read "a Tribe's eligibility"
   IS. In § 142.76 paragraph (f) is revised
 to read as follows:

 $ 14i76 Request by an Indian tribe for •
 determination of eUojbUKy.

   (f) If the Administrator has previously
 determined that a Tribe hat 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 Actrthe dean Water . -
 Actvor the .Clean Air Act, then that
 Tribe need provide only that •
 information ^iniqufr to the Public Water
 System program (paragraph (c). (dXS)
 and (6) of;thi»sectian).  -..•;•--.•   . •

-------
       Federal Register /  VoL 59. No. 239 /.Wednesday.  December 14. 1994  / Rules and Regulations64345
1142.78  (Amended]
  16. The heading of § 14Z78 is •
traatneniAsaState'V .
  17. In §14178 paragraph(a) is
intended by removing the words "for
reatment as a State submitted pursuant
:o§14i76"
  18. In § 142.78 paragraphs (b), (c) and
d] are removed and paragraph (e) is
edesignated as (b) and amended by
evising the language-"If the  •     •

neets the requirements of $14272. the
ndian Tribe is then45.1   (Amended]
 2. In § 145.1 paragraph (h) is amended
 • adding the word "eligible*' between
 a" and "Indian Tribes" in the first
 atence; and by removing the second
 ntence.

 ibpart E— indten Tribes   -

 3. The heading of subpart E of part
 5 is revised to read as set forth above.

 45J52 Requirements tor Tribal eUglbUtty.
 4. The Heading of f 145 £2 is revised
 read-as set forth above.
 y-6. Section 145-52 is amended by
 osifjg the introductory text end
 ragraph(d) to read-as follows:

 45,52
Program if it meets the following
criteria:
•    •••••
 : (d) The Indian Tribe isteasonabiy
•expected to be capable, ha the
Administrator's judgment, of"
  at an Indian .Tribe«*eligible to apply
  '•primary JenJbrcemaat-ipetpnnsJhJIity. >
  ihe Underground Injection
  with the terms and purposes of the Act
  and all applicable regulations) an
 . effective Underground Infection Control"
  Program.             • ;
  •• '•  •    •    •   • •         •.

  SUW6 [Amended]   •
    .7 .The heading of .§ 145.56 is amended
•  by revising the phrase "of treatment as f
  a State" to read "of eligibility" "
   !8. fa 5 H5.56 the introductory text is .
  amended by revising tbephrsae
  "qualifies for treatment as a State
  punoant to" to read "meets the criteria
  of.-..          .,.    "'-,.-•
    ~Q. In §MS.S6 paragraph (b)
  introductory text is amended by revising
  the word "shall" to read "should"  .
    10. In § 145.56 paragraph (c] i«
  amended by revising ihe 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 S 145.56 paragraph (d)
  introductory text is amended by revising
  the word "shall" to read "should**
. '  12.In$145."56~paragropntdMl)is-
  amended by revising the words
  "including, but not limited to" to read
  "which may include." .     .
    13. In $ 145.56 paragraph (e) is
  amended by revising the phrase "a
. Tribal request lor treamfent as a State"
  to read "a Tribe's eligibility".
    14. In $ 145.56 paragraph (fj is revised
  to read as follows:  .

  §145.56. Request by an Indian Tribe tore
  determination ot «5g(oiBty.
  •    4    •    •    •
  • (fj If the Administrator 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 to the Underground
 • Injection Control program (§ 14S.76(c)
  and(dM6)J.   :

  S14&58  /Amended]
  •  IS. The beading of §145.58 is
  amended by removing the phrase "for
  treatment es a State".
    16. in § 14S-S8 paragraph {a}k.
  amended by removing the phrase "for
 ^treatment as a State submitted pursuant
 •to §145.56".
   17, In $ H5.58 paragraphs (bj. (cj. and
 (d) are removed and paragraph {e) is
 ^designated as paragraph (b) and
 amended by re visingthe tasgoage i*Tf
•the Adnnnistratordetennines that ti  '  -
 Tribe meets the requirements' of  -
 § 145.52, the Indian Tribe is then
 eligible to apply/fbt" to read MA tribe
 that meets the requirements of § 145.52
 iseligiblfi to apply for"    '"  "••';
      """*.'•   - • '    ' '
 PART 233-404 ^ STATE PROGRAM
 REGULATIOHS

   1. The authority citation for part 233
.continues to read as ibUovnt: ^ .. -•••

  Authority: "U-SC 1251 «t sec-  . '
          ......••......••-•... ; M . .y.'.'.
 Subpart G-QlfliW« Indian Tribes

   2. The heading of cabpartGef part
 233 is revised to xead as set lorth above.
                                     $233.60
                                       3. The heading of $ 2J3 -60 is revised
                                     to read as set iorth above.
                                       4. Section 233.60 introductory text is
                                     amended by removing the vcords "a
                                     State far purpose* of nuking the Tribe"
                                     f233jfi« 'Oatarmlnattoa of Tribal
                                       5. The heading of §233.61 tsxevisod
                                     to read as set forth above.
                                       6. In § 233.61 the introductory text is
                                     ammutnd by revising the phrase "that it
                                     pursuant to Sedian S18 of the Act" to
                                     read "that it meets the statutory criteria
                                     which authorize EPA to treat the Tribe
                                     in a manner similar to that in which ft
                                     treats a State**: toy revising the word
                                     "shall" in thu test sentence to read
                                     "should."
                                      7. In 5 233.61 paragraph (b)
                                     introductory text is amended by revising
                                     the word -shall" to read •'should".
                                      8. In 5 233.61 paragraph (c)(2) is
                                     amended by adding at the end of the
                                     paragraph before the semicolon "which
                                     may include a copy of documents such
                                     as Tribal constitutions, by-laws,
                                     charters, executive orders, codes.
                                     ordinances, and/orresolutions which
                                     support the Tribe's assertion of
                                     authority".
                                      9. Section 233^61 (cH3) istemoved.
                                      10. In § 233.61 paragraph (d)
                                     introductory text is amended by revising
                                     the word "shall" to read "may".
                                      .1 1. In § 233.61 paragraph (d)(l )  is
                                     amended by revising the words
                                     "including, but not limited to" to  read
                                     "which may include''.       -  •
                                      12. In $ 233.61 paragraph (e) is
                                     amended by revising me words "request
                                     for treatment as a State", to read
                                     "application". -
                                     amended by«dding.lhe words "for
                                     eligibility or" oetweott "basinet the-

-------
 .64346 Federal  Register  / Vol. 59. No.  239 / Wednesday. December 14.  1994 / Rules and Regulations
 requirements" and "for "treatment as a
 State/" -•'•/ <
  233.62 {Amended]   .. •    ~  .
   14. The heading of 1 233.62 is
 amended by removing the phrase "for
 treatment as a State". -
   15. 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 '- ;  . • •  .  '.    '
   17. In'§ 233.62 paragraph (f) is - ••.'.; -••
 redesignated as paragraph (b).

.PARTSOI^STATTESLUbGE •     ,  .
 MANAGEMENT PROGRAM ,./   ;
'REGULATIONS ."    v  ". .;-.,'
   1. The Authority citation for part 501--.
 continues to read as follows: • /.-. ". *
 §601.11 -[Amended] ;; -    .
   2. In §501.11 (a)(l) remove ".
   3.-In § 501.11(b)(2) remove the phrase
 "for treatment as a State" both times it .
 appears and revise the text "§ 501.24(e)"
 toread"§501.24(b)".

.§501.12  [Amended]
   4. In § 50i.l2(g) remove the phrase
i "for treatment as a State" and revise the
 text "§ 50U4(e)" tp read "§ 501.24(br.

 §501.22  [Amended]
   5. The heading of § 501.22 is amended
 by revising the phrase "for treatment of
 Indian Tribes as States" to read "for
 eligibility of Indian Tribes."
   6. In § 501.22 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 phrase "for treatment
 as a State".
   9. In § 501.23 the introductory text is
 amended by removing the phrase "for
 treatment as a State." ."-•'•
 - 10. In § 501.23 paragraph (b)
 introductory text is amended by revising
 the word VshalT'to read "should."
 -  . 1 1. In §501. 23 paragraph (c) is
 amendedfy revising the phrase "a copy
 of all documents" to read "copies of
 4ho» documents" eM by jevisulg the'
 phrase "support the Tribe's assertion"
 to read "the Tribe believe* are relevant -
 to Us assertion;"      .'-. .V; ' p • •
   12.in§ 50.1.23 paragrap&Id)  *V- ". .; *
 introductory-text i&amepdedib'y revising
    13; In §501.23 paragraph {dXD'is
  amended by revising the words
  "including, but-not limited 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
  detemUnatlonofeltfllwnty.    .    .
  "'  . '!  '•*.'•" .". '.••*•''.«: >V  ''••'  '''•••'.
„  (f) If jhe Admlnistratotpr her
 . 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
 'statuteain'oex 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
  .sludge management program which is
 'requested by the Regional  -
  Administrator.   .  "   •'•   ;

  §5Q1.24  [Amended]
    16. The heading of § 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 5 501.24 paragraphs (b). (c). {d). ,
  and (e) are removed and paragraph (fJJs
 . redesignated as paragraph (b).
  (FR Doc S4-30401 Filed 12-13-04; 8:45 ami.
  •CUNOCOOCeMO 10 f
  DEPARTMENT t)F COMMERCE

  National Oceanic and Atmospheric
  Administration

  50 CFR Parts 611,675, and 676
  (Docket No. 041241-4341; LD. 1123948]

  Foreign Fishing; Groundfish Fishery of
  trm Bering Sea and Aleutian Islands;
  Umlted Access Management of
  Federal Fisheries In and Off 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 (TTACsJ
 . for each 'category of groundfish and;"
  specifications for prohibited species <
  bycatchellowarices for the'^roundnsh:- .
  fishery of the Bering Sea end-Aleutian'
 .Islands-management area (BSAI); NMFS'
is also closing specified fisheries
consistent with the interim 1995
groundfish specifications. The intended
effect is to conserve and manage the
groundfish resources in the BSAI.
EFFECTIVE DATE: January i. 1995. until
the effective date of the final 1995 initial
specifications.    :          '     .
ADDRESSES: The preliminary 1995 Stock
Assessment and Fishery Evaluation
(SAFE) Report may he requested from
the North Pacific Fishery Management
Council. P.O.  Boxl03136, Anchorage,
AK 99510, 9077271-2809 .. •     .   • .
FOR ^FURTHER WFORMATION CONtACti
Ellen R. Varbsi, NMFS; 907^586-7228
SUPPLEMENTARY INFORMATION:  "
Groundfish fisheries in the BSAI are
governed by Federal regulations f 50 CFR
611.93-andparts 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 Fisher}- 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
species and the "other species" category
(§ 675.20(a)(2)). Regulations under
§675^0(a)(7)(i) further require NMFS to
publish and solicit public comment on
amounts, of .proposed annual TACs and
ITACs for each target species. '
apportionments of each TAG, prohibited
species catch (PSC) aOowances under
§ 67S.21(b), and seasonal allowances of
pollock TAG The Council, at its
September 1994 meeting, based on the
recommendations of its Scientific and
Statistical Committee (SSC) 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 TAG Specifications
  The Council developed  its TAC
recommendations (Table 1) based on the
preliminary acceptable biological
catches (ABCs) as adjusted for other
biological and sodoeconomic
considerations; .including maintaining
the total TAG in the required optimum
yield range-of 1.4-2.0 million metric -
tons (mt). Eachof the Council's; •    .
recommendedTACs for -1995 is equal to
or lesT&WthVfinal 1995 ABC for each
that the'
'consistenr.VritBlfie btologfcal condition :
of grouhdfHrSbckA The preliminary  '•

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Wednesday
March 23, 1994
Part
Environmental

Protection  Agency

40 CFR Parts 35 and 130
Indian Tribes: Eligibility of Indian Tribes
for Financial Assistance; Final Rule

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 13814  .  Federal  Register   Vol.  59.  No. 56  .  Wednesday. Slarcn 23. 1994   Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 35 and 130 ~~

[FRL-4728-6]

Indian Tribes: Eligibility of Indian  .  .
Tribes for Financial Assistance

AGENCY: Environmental Protection
Agency (EPA).
ACTION: Amendments to interim final
rule.	

SUMMARY: The Clean Water Act contains
provisions'which authorize EPA to treat
Indian tribes in substantially the same
manner in which it treats 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. The
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. 401 M Street. SW..
Washington DC 20460. telephone (202)
260-6792.
SUPPLEMENTARY INFORMATION: This
preamble is organized according to the
following outline:
I. Introduction                        •
II. Regulations Governing Eligibility of Indian
    Tribes
  A. The Existing Process
  1. Recognition tnd • Government
  2. Jurisdiction and Capability
  3. Comment Process
  4. Subsequent Tribal Applications
  B. Workgroup Examination of Process
ffl. Revisions to the Process in Light of
    Statutory Requirements
  A. Simplified Determination as To
    Recognition and Government
  B. Case by Case Review of Jurisdiction and
    Capability
   1. Simplified Jurisdictional 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).'
  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-H
 (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.2 Finally, all three require that
  i IB addition. tha Comprehensive Environmental
RespoaM. Compensation, tnd Lability Act
(CERCLA or "Superfund"). which U primarily a
response. nth« than a regulatory statute, haa alao
been amended to authoria EPA to mat tribal
fovtrnmaou In substantially tha aaoM way it treats
tutu with raapact to talactad praviaioot of tha
statute.
  > Undar the dean Watar Act. tha triba must
pnpoaa to cany out function* that "pertain to tha
mana|emant and protection of watar raourcaa
which an bald by an Indian triba. bald by tba
United States in trust far Indiana, bald by a f~"»t»«r
of an Indian triba if inch property imarat U a object
to a BUM restriction on alienation, or otherwlae
 a tribe be reasonably expected to be
 capable of earning 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 Tribes

 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. S3
 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 308. 309. 401. 402.
and 405 of the Clean Water Act
 ("NPDES") Rule. 58 FR 67966
 (December 22.1993). codified at 40 CFR
parts 122.123.124 and 501.
within tha borden of an Indian reservation." 33
U.S.C 1377(eX2). Undar tha Clean Air Act. "the
functions to be axarciaed.by the Indian tribe (miutl
pertain to tha management and protection of tir
raaourcaa within tha exterior boundaries of the
rennillon or other areas within tha triba'i
jurisdiction." 42 US.C 7601(d)(2KB). Under the
SDWA. tha triba muit propose to exercise functions
"within the area of tha Tribal Government's
jurisdiction." 42 U.S.C 300f-tl fbXlKB).
  > By contrast, tha provision of CERCLA
authorizing EPA to afford a tribal government
"substantially tha same treatment as a State" does
not establish any specific criteria a tribe must meet
to qualify for such treatment 42 U.S.C. MM. EPA
haa established, by refutation, tha criteria of
recognition, a government, and jurisdiction, but has
not adopted a formal prequalification process under
CERCLA. See 40 CFR 300.J15(b(. The A|ancy is
developing regulations pertaining to tha treatment
of American Indian tribes under the Clean Air Act.

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           Federal  Register   Vol. 59. No.  56   Wednesday. March  J3.  1994    R»;c; j.-.c  Xeiu.c-.::.-..   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
 jurisdictional 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." 4
 as to the substance of and basis for the
 jurisdictional assertions in the
 application, and invites comment on
 those assertions. Where comments raise
 a competing or conflicting jurisdictional
 claim, the Agency must consult with the
 Department of the Interior before
 making a final decision on the tribe's
 application.
  In 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
 that states have an oversight role in
 EPA's treatment of Indian tribes, which
 some tribes find objectionable,
 particularly since tribes have typically
 not been asked to offer their views on
 the 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
  4 The Agency defines this lo include contiguous
sutei. other tribes, and federal land agencies
responsible for management of lands contiguous to
the reservation. (Amendments to the Water Quality
Standards Regulation that Peruin to Standards on
Indian Reservations: Final Rule. 56 FR 6487S.
64884 (December 12.1991)). In response to public
comments. EPA has considered, but decided
against, providing interested political subdivisions
of states, including local governments and water
districts, the opportunity to comment on tribal
jurisdictional assertions. Id.
 program approval. The only
 requirements imposed by statute 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

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 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.
  A tribe that has not yet made its
initial governmental snowing 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 Case Review of Jurisdiction
and Capability
  A tribe may have jurisdiction over.
and capability to carry out. certain
activities (e.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 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 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 are
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 lurisdictional
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 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.
  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 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.,
S3 FR 37395.37402 (September 26.
1988) (SDWA): 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 pan 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): 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 from 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 Revised 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 approval 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  /  Rules ana Regulations   13817
 V. Executive Order 12866
  OMB has reviewed this action under
 the terms of Executive Order T2886.
 VI. Regulatory Flexibility Act
  EPA did not develop a Regulatory
 Flexibility Analysis for the amendments
 in this rule. This is because they are
 exempt from notice and comment
 rulemaking under section 553(a)(2) of
 the Administrative Procedure Act (5
 U.S.C. 553(a)(2)) and therefore are not
 subject to the analytical requirements of
 sections 603 and 604 of the Regulatory
 Flexibility Act (RFA) (5 U.S.C. 603 and
 604).

 VH. 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 Port J5
  Environmental protection. Air
 pollution control. Coastal zone, Grant
programs-environmental protection.
Grant programs-Indians. Hazardous
waste. Indians, Intergovernmental
relations. Pesticides and pests.
Reporting and recordkeeping  -
requirements. Superfund. Waste
treatment and disposal. Water pollution
control. Water supply.
40 CFR Port 130
  Environmental protection, Grant
programs-environmental protection.
Indians-lands, Intergovernmental
relations. Reporting and recordkeeping
requirements. Water pollution control.
 Water supply.
  Dated: March 10.1994.
Carol M. Browner,
Administrator.
  For the reasons set forth in the
 preamble, title 40, chapter I of the Code
 of Federal Regulations is amended as
 follows:

 PART 35—STATE AND LOCAL
 ASSISTANCE

 Subpart A—Financial  Assistance for
 Continuing Environmental Programs

  1. The authority citation for subpart A
 of part 35 continues to read as follows:
  Authority: Sees. 105 and 301(a) of the
 Clean Air Act. u amended (42 U.S.C 7405
 and 7601(a); Sees. 106. 20S(g). 20S(j). 208.
 319. SOl(a), and 518 of the Clean Water Act.
 as amended (33 U.S.C. 1256.1285(g). 1285(j).
 1288. 1361(a) and 1377); sees. 1443. 14SO.
 and 1451 of :he Safe Drinking Water Act (42
 U.S.C. 300J-2. 300J-9 and 300J-11): sees.
 2002(a) and 3011 of the Solid Waste Disposal
 Act. as amended by the Resource
 Conservation, and Recovery Act of 1976 (42
 U.S.C. 6912(a). 6931. 6947. and 6949); and
 sees. 4. 23. and 25(a) of the Federal
 Insecticide. Fungicide and Rodenticide Act,
 as amended (7 U.S.C 136(b), 136(u) and
 136w(a).
   2.  Section 35.105 is amended by
 adding a definition of Eligible Indian
 Tribe in alphabetical order and by
 revising the definition of "State" to read
 as follows:

 §35.105 Definitions,
 •    «    •    •
   Eligible Indian Tribe means for
 purposes of the Clean Water Act, any
 federally recognized Indian Tribe that
 meets the requirements set forth at 40
 CFR 130.6(d).
 •    •     •     •    •
   State means within the context of
 Public Water Systems Supervision and
 Underground Water Source Protection
 grants or of financial assistance
 programs under the Clean Water Act,
 one of the States of the United States.
 the District of Columbia, the
 Commonwealth of Puerto Rico, the
Virgin Islands. Guam, American Samoa.
the Commonwealth of the Northern
 Mariana Islands, the Trust Territories of
the Pacific Islands or an eligible Indian
Tribe.
§35.115  [Amended]
  3. Section 35.115 is amended by
revising the phrase "Indian Tribes
treated as States" in paragraphs (b). (d).
and (f) to read "eligible Indian Tribes"
and paragraph (g) is amended by
revising the phrase "Indian Tribe
treated as a State" to read "eligible
Indian Tribe".

§35.155  [Amended]
  4. In § 35.155 paragraph (c) is
amended by revising the phrase "Indian
Tribes treated as States" to read
"eligible Indian Tribes".

§35.250  [Amended]
  S. Section 35.250 is amended by
revising the phrase "Indian Tribes
treated as States" to read "eligible
Indian Tribes."

§35.255  [Amended]
  6. Section 35.255(b) is amended by
revising the phrase "Indian Tribes
treated as States" to read "eligible
Indian Tribes".

§35.200  [Amended]
  7. In § 35.260 paragraph (a) is
amended by revising the phrase "Indian
Tribes treated as States" to read
"eligible Indian Tribes" and paragraph
(b) is amended by revising the phrase
"Indian Tribe treated as a State" to read
"eligible Indian Tribe".

§§ 35.265,35.365 and 35.755  [Amended]
  8. Sections 35.265(a). 35.365(a)(l),
35.755(a). and 35.755(b)(l) are amended
by revising the phrase "requirements for
treatment as a State in accordance with
40 CFR 130.6(d) and 130.15" to read
"requirements set forth at 40 CFR
130.6(d)".

§§35.350 and 35.750  (Amended]
  9. Sections 35.350 introductory text
and 35.750 are amended by revising the
phrase "Indian Tribes treated as States"
to read "eligible Indian Tribes".

§35.400 [Amended]
  10. Section 35.400 is amended by
revising the phrase "Indian Tribes
treated as States for" to read "eligible
Indian Tribes under".

§35.1605-0 [Amended]
  11. Section 35.1605-9 is amended by
revising the phrase "treated as a State"
in the heading to read "set forth at 40
CFR 130.6(d)" and by revising the
phrase "set forth  for treatment as a State
in accordance with 40 CFR 130.6(d) and
130.15" to read "set forth at 40 CFR
130.6(d)".

§35.1620-1  (Amended]
  12. Section 35.1620-1 (c) is amended
by revising the phrase "treated as
States" in the paragraph heading to read
"eligible Indian Tribe" and by revising
the phrase "Indian tribe treated as a
State" to read "eligible Indian Tribe".

§35.415  [Amended]
  13. Section 35.415(a)(l) is amended
by removing the words "—Treatment of
Indian Tribes as States".

§35.450  [Amended]
  14. Section 35.450 is amended by
revising the, phrase "Indian Tribes
treated as States for" to read "eligible
Indian Tribes under".

§35.465 [Amended]
  15. Section 35.465(a)(l) is amended
by removing the words "—Treatment of
Indian Tribes as States".

PART 130—WATER QUALITY
PLANNING AND  MANAGEMENT

  1. The authority citation for part 130
continues to read as fojlows:
  Authority: 33 U.S.C 1251 et. seq.

§ 130.1 [Amended]
  1. Section 130.l(a) is amended by
revising the phrase "Indian Tribe

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                                                                                                              o-y
13818    Federal Register / Vol. 59. No. 56  /  Wednesday. March 23. 1994  /  Rules and  Reguiauctvs
treated as a State" to read "eligible
Indian Tribe".         	

(130.6 (Amended]
  2. Section 130.6(d) introductory text
is amended by revising the phrase "may
be treated as a State" to read "is .  .
eligib1-".
$130.15  [Am«nd«d]
  3. Section 130.15 is amended b-
revising the phrase "for treatment as a
State" in the heading to read "for Indian
tribes"; by removing the phrase "(or
treatment as a State" from paragraph (a);
by removing paragraphs (b). (c), and (d);
and by removing the paragraph
designation "(a)" from the remaining
text.

(FR Doc. 94-6382 Filed 3-22-94: 8:45 «m|
WLUNQ COOe MM-tt-P

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                                                                                        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 TOC and EPA will not
substitute for the government-to-government relationship between EPA and Tribal governments
BACKGROUND

EPA Administrator, Carol M- Browner, convened the first TOC meeting on February 17i:1994.. At
.this first meeting, tribal representatives of the TOC presented three recommendations:  1) Reaffirm
the 1984 EPA Indian Policy and the EPA State/Tribal Concept Paper on jurisdiction; 2) Esteblish
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 Team1 ;for tribal operations;  The roleiof the t6am:waito 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 Environmental Office
(AEQ), reaffirmatiori of the 1984 EPA Indian Policy (Attachment I), 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.

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PART I. 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 environmental .co-regulators, will provide input into EPA "operational" decision- making
affecting Indian Country.  •

The Tribal representatives of the TOC will :be referred tolas' 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-v 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
(NIWG), 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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                                                                                             36
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 piucus may assist EPA to
determine when broad Tribal input is appropriate rather than just TOG input.
PART 3.  Membership                                 .

Section 1. 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. In other regions, the Regional Administrators
requested Tribes to delegate their representatives and these 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 the addition of one representative
(Montana) in Region VIII. There  are 19 Tribal TOC members from nine IjPA regions   The
regional Tribal representation is  as follows:

       Region 1 - 1
       .Region II -.1     :  :;                                     -
       Region IV-1
       Region V - 2
       Region VI-2
       Region VII -  1   ;                                      /iiilif:;.
       Region VIII - 3 (one member from Montana)    i: i      ; i iiiiiiniiiiii 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.

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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 theiralternates.

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 of TribaJ 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
       AIEO Director
       Chief Financial Officer
       Regional Administrator of Lead Region on 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
       AssisOtant 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

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       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.                                S

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 in writing.  Officers shall .be elected by a
majority vote of the 19 tribal representatives to the Tribal Caucus. Officers shall hold office 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.                                                   -;

Section 3. Duties of Tribal Caucus Officers:

       (a)    Chairperson Presides at meetings of the Tribal Caucus and co-chairs TOC
              meetings; facilitates consensus of the TOG On national tribal;   .
              environmental issues; may x»ny^
              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; Fadlrtates the consensus of the
              Tribal  Caucus at  EPA Regional and National Indian Workgroup meetings,
              participates on vanous;EPA :worfc:groups :and.conwjjttejefc;:;:, ; ; r- i!|:

       .(b)     Vi?e Chairperson The Vicie Chairperson presides at meetings 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 theTribal 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 U>eI?irector;df:ffieiiA;IEp
with concurrence of the Co-chairperson of the TOC.

Section3. 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 arid consensus-building on environmental issues that will affect Tribes.

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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 full TOC. The AIEO will coordinate between Tribal Caucus
work, groups and EPA work groups undertaking similar activities.
PARTS. Amendments

This charter may be amended at a 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 fbrthe next TOC meeting.                   :;!       ';:;!

Part 9. Certification

We hereby certify that 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.    "L^        ;ii;;  •:-;:.;;'::;: ••         .-... •  -v-:. •     ••  ,-
Dated this
11
: day of.
1996.
                                Administrator, Environmental Protection Agency

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                 FECTIVE
              GOVERNME
              Append
             onmental ProtecMoJti
             raining S eminar
                gust 1996 ; >
J

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                               APPENDIX B

EPA Indian Program Information/Contact Sheets                                      f
                                                                            T"
New England Indian Workgroup (NEIWG)
                                                                            r
Spencer Phips Proclamation (1755)                                              """
                                                                                i
Kezogmomna Alaimihot—Indian Prayers                                            b

Trade and Intercourse Act (July 22, 1790)                                         ^

Indian Citizenship Act (June 2, 1924)                                            ^ 3

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  15
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                                  3 0

Mohegan Nation Land Claims Settlement                                         2 3^

Water Rights Discussion (Cohen)                                               3 5T

The Federal Acknowledgement Process Guidance                                 3 7

Background of United South and Eastern Tribes (USET)                           7^

Passamaquoddy Tribal Trust Lands Maps                                         / / -.

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                                                                                                           3
                                    Penobscot Indian Nation
                                    Old Town, ME   >-  '
                   Hashantucket Pequot Tribe
                   Ledyard. CT
                   Mohegan Natfon
                   Uncasville, CT
                                                                   Aroostook NlcMC Council
                                                                   Presque Isle, HE
                                                                     Houlton Band of Malisect Indians
                                                                     Houlton, ME
                             ^Passamaquoddy Tribe
                              Indian Township Reservation
                              Princeton, ME

                              Passamaquoddy Tribe
                              Pleasant  Point Reservation
                              Perry, ME
                                                              Uampanoag Tribe of Gay Head (Aquinoah)
                                                              Gay Head, MA
         Narragansett 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
3%3
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
+(835 in Trust Process)
1/8/97
  TOTALS
11,340
271,719.25

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                               NEW ENGLAND  TRIBES/RESERVATIONS
                                       LAST UPDATED 9/11/96
(EPA-out) RTPMAINHUB.INTERNET:" address"
pi^K -' - ^ ".:. TRIBE
IMOULTOM BAND or MALXSKXX INDIANS
R^Mt* 3 - Box 450
nptilton, ME 04730
1 VHOHB: 207/.S32-4273 x40
1/800/545-8524 FAX: 207/532-2660
KARRAOANSER INDIAN TRIBX
PO Box 268
Charlestown, RI 02813
PHONE: 401/364-1105
FAX: 401/364-1104
KM: 401/364-1117
PASSAMAQOODDY TRIBE OF INDIANS
Xtr-ftN TOWNSHIP RESERVATION
PO BOX 301
Princeton, ME 04668
PHONE: 207/796-5635 FAX: 207/796-5256
PASSAKAQCODDY TRIBE OF INDIANS
PLEASANT POINT RESERVATION
PO Box 343
Perry, ME 04667
PHONE: 207/853-2600 FAX: 207/853-6039
PENOBSCOT INDIAN NATION
6 River Rd.
Indian Island Reservation
Old Town, ME 04468
PHONE: 207/827-7776
FAX: 207/827-1137
MASHANTOCKET PEQUOT TRIBAL NATION
Tribal Office
Indiantown Rd.- PO Box 3060
Mashantucket, CT 06339-3060
PHONE: 860-572-6740
FAX: 860-572-6745
j^^IPANOAO TRIBE OF GAY HEAD
i^^T Blackbrook Road
Gay Head, MA 02535
PHONE: 508/645-9265
TAX: 508/645-3790
AROOSTOOK BAND OF MICKACS
PO Box 772
Presque Isle, ME 04769
PHONE: 207/764-1972
FAX: 207/764-7667
HACK: 207/764-7219
FAX (MACK and JODITH) : 207/764-7768
MOHEOAN TRIBE
P.O. Box 468
Uncaaville, CT 06382
1 PHONE: 860/848-5600/6100
FAX: 860/848-6115

.-,--- * • CONTACTS 	 -_ 	 * <
Clair Sabattis, Chief
Environmental Contacts:
* Sharri Venno, Director of EPA Planning Grant
"env . plannlngBainop . com'
George Hopkins, Chief "c/o Randy Noka, First Councilman"
Environmental Contacts:
* Greg Soder, Director of Natural Resources, "GREG6MAIL.BBSNET. COM"
Kathy Maxwell/ Environmental Specialist
Chris Coutu, Wetlands Specialist; Dinalyn Spears, Biologist
John Stevens, Tribal Governor
Environmental Contacts:
* Veronica Smith, Tribal Planner, (5611) [on EPA-Groupwise]
Julie Coffin, Water Quality Specialist
Cliv Dore, Tribal Governor
Environmental Contacts:
Lt. Gov. Rick Doyle, " HEIDIL9NEMAINE.COM"
* Heidi Leighton, Env. Planner Bill Howard, Env. Engineer, (284) :
Francis Mitchell, Tribal Governor
Environmental Contacts:
* John Banks, Dir. of Natural Resources, (330) (990-2613-h)
Daniel Kusnierz, Water Quality Spec. (361) "PINWATER9MINT.NET"
Tamrais Coffin, Water Resource Planner, (360) ; Wayne Mitchell, L.U.
Richard (Skip) Hayward, Chairman
Environmental Contacts:
"10203S.30579compuserv.com"
Jeff Skinner, Asst. Dir. /Natural Resources Protection
* Valerie Ferry, Compliance Officer
Beverly Wright, Chairperson
Environmental Contacts: "NATRES9VINEYARD.NET"
* Matthew Vanderhoop, Director of Natural Resources
Philippe Jordi, Planner
Mary Philbrook, Chief
Environmental Contact: "21236108mcimail.com"
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 Richardse8608486115"
Melissa Fawcett 860/848-6108
* R-TOC: PRIMARY ENVIRONMENTAL 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.TERRY9EPAMAIL.EPA.GOV"
  Darren Ranco  (CSP),  Tribal  Liaison,' 617-565-4976, F-3346,  "RANCO.DARRENeEPAHAIL.EPA.GOV"
  Deborah Falcone  (CSP),  Env. Tech. Coord.  617-565-3428,  F-4940, "FALCONE.DEBORAHSEPAMAIL.GOV"
KPA-TRIBB COORDINATORS:
Micheal Kenyon(CAA),  EPA-Pequot Coordinator, 617-56S-3524/F4940, "KENYON.MICHEALeEPAMAIL.EPA.GOV"
Micheal Kenyon(CAA),  EPA-Maliseet Coordinator,617-565-3524/F4940,"KENYON.MICHEAL9EPAMAIL.EPA.GOV"
Jerry Healey(CAA), EPA-Micmac Coordinator,  617-565-3602/F4940,  "HEALEY.JEROMEeEPAMAIL.EPA.GOV"
Jerry Healey(CAA), EPA-Passamaquoddy I.T.  Coordinator, 617-565-3602/F4940,  "HEALEY. JZROME9EPAMAIL.EPA.GOV"
Jerry Healey(CAA), EPA-Passamaquoddy PL.PT. Coordinator,  617-565-3602/F4940,  "HEALEY.JEROME8EPAMAIL.EPA.GOV"
Eleanor Kwong(CRI), EPA-Narragansett Coordinator,  617-565-3604/F4940, "KWONG.ELEANOReEPAMAIL.EPA.GOV"
Mark Sceery(CCT),  EPA-Mohegan Coordinator, 617-565-4866/F4940, "SCEERY.MARK9EPAMAIL.EPA.GOV"
William Nuzzo(CSP)  EPA-Wampanoag Coordinator,  617-565-34BS/F4940, "NUZZO.WILLIAM9EPAMAIL.EPA.GOV."
Terry Regan (CSP)   EPA-Penobscot Coordinator,  617-565-3529/F4940, "REGAN.TERRY9EPAMAIL.EPA.GOV"       TRIBES . LST

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                                                                      t
James Sappier
 (CSP)
Darren Ranco
 (CSP)
Terry Regan
 (CSP)
Jerry Healey
 (CAA)
Mike Kenyon
 (CAA)
Eleanor Kwong
 (CRI)
Mark Sceery
 (CCT)
Bill Nuzzo
 (CSP)
INDIAN WORK GROUP EPA-NEW ENGLAND
    REGION I JFK FED. BUX>. OMB CON08ESS STREET
  BOSTON, MASS. 02203-2211 (HEXNO-87) CHO'D12-20-96

     Indian Program Manager               565-3935
     Tribal Operations,  SP-OEP
     Tribal Liaison                       565-4976
     Tribal Operations,  SP-OEP
     I-Program Spec./Coor-PN              565-3529
     Tribal Operations,  SP-OEP
     I-Program Coor-ABMI.  PIT. PPP        565-3602
     Office of Ecosystem Protection
     I-Proaram Coor-HBMI.MP               565-3524
     Office of Ecosystem Protection
     I-Proaram Coordinator-NIT            565-1154
     Office of Ecosystem Protection
     I-Program Coordinator-MN             565-4866
     Office of Ecosystem Protection
     Indian Program Coordinator-WTGH      565-3485
     Office of Environmental Protection
James M. Bryson
  (CPT)
Robert Koethe
  (CPT)
Eugene Benoit
  (CPT)
Mary Beth Smuts
  (CPT)
Louise House
  (HIO)
Bud Plunkett
  (SPP)
Henry Burrell
  (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)
     Air,  Pesticides and Toxics           565-3836
     Office of Ecosystem Protection
     Air.  Pesticides 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 - Waste Management             223-5590
     Office of Site Remediation & Restoration
     Emergency Response                   565-9007
     Office of Environmental Stewardship
     Chief. Grants                        565-3839
     Office of Administration & Management
     Grants Specialist                    565-3843
     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
     NonPoint Source Pollution Control
     Office of Ecosystem Protection
     Water Technical
     Office of Environmental Stewardship
     General Law Office
     Office of Regional Counsel
  565-3422
  565-3445
  565-9349
565-3276
565-3508
565-4426
565-3592
565-9016

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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
                                   860-4374
                        & Evaluation
                                   565-9056
Quality Assurance
Office-Env. Measurement
Environmental Justice
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                   565-3298
Library
ME & VT Superfund 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         565-3169

Legal/Regulatory             "      565-3316
Office of Environmental Stewardship
ADR Specialist                     565-1154
Office of Environmental Stewardship
Ground^Water  ,                     565-9306
RI-Office of Ecosystem Protection
EPA-Massachusetts                  565-4877
State Programs & 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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                             G
                               By  His  HONOUR

     SPENCER    P  H I  P  J,    Efq;
 Lieutenant-Governourand Commander in Chief, in and over His Majcfly's Province of the Majfachufitti-
                               Bqy in New-England.

   A     PROCLAMATION.

       WHEREAS the Tribe of Penelfeot Indians have repeatedly in a perfidious Manner a<3ed ccn-
        trarj to their fblcran SubmHQon unto Hie Majefty long fincc made and frequently renewed ;
     I9atK t^trtfoit, at tfce a>efire of t&e Douft of Sepcefentattoes, n>tt& t&e
      IMS ©a|ett?*s Councn, tljougljt fit to ((Tut tttfs fcroclamatfon, anD to Declare tljc
      Pcnobfcot xttbe of •JnDlans to be enemfes, Rebels anD  Xtattojs to tys ®aftOp
      H(ng GEORGE the Second: 3nD ^ Do Ijeteby requite $o Ijcrcby ^couufc, iLljat tljere t^nll
    bepaJDoutoftlje ^toto(nce=3Cteafutp to nil anD nnpoftlie fatDjFotces,  oDcranD
 above tl)t(t countp upon 3lnl(ftiuent,  tt)c(c laaQcs anD SmbQClcncc, ttje pttmduns oj
 Sountp follotbing, viz.

   For every Male Petut/cot Indian above the Age of Twelve Years, that  (hall be taken within tlic Tinw
 afordaid and brought to Bojlon, fifty Pounds.

   For every Scalp of a Male Pintlfcot Indian above the Age aforefaid.brought in as Evidence of their being
 killed as aforelaid, Forty Pounds.

   For every Female Penttfcot Indian taken and Brought in as aforefaid.and for every Male Indian Prifoncr
 under the Age of Twelve Yean, taken and broutjht in as aforefaid, 7wa:tj-Jivt Pounds.

   For every Scalp of (uch Female Indian or Male Indian under the  Age of Twelve Years,  that (hall be
 killed and brought in as Evidence of their being killed as aforefaid, Twenty Pounds.

    Given at the Council-Chamber in Dejlo*, diis Third Day o( November 17$;, and in the Twenty-ninth Year of
           the Reign of our Sovereign Lord  GJZOR.GE die Second,  by  the Grace of GOD o'f Greti-Dritain,
           frtxtc and Ireland, KING, Defender OS  the Faith, &t.

      Bj Hit Homirr Cownwurf,                                             O  TDV«*t-\
        3. OBillarD, Seer.                                               s« mips.


                  GOD    Save    the    KING.
   B OSTONi Primed by Jtlm Dn>ferl Printer to i lis Honour the Lieutenam-Govcrnovir and Council.

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                 EZOGMOMNA  ALAIMIHOT
                    THE  LORD'S  PRAYER
      Micmac
Notjinen Oasog epin, tjiptog
      teloisin
megrtetemeg Oasog ntlitanen,
      tjiptog
ignemoieg ola nemoleg
      oletesnen. Natel
Oasog eigig teli sgatasgig,
      tjiptog
elp ninen teli sgatoleg
      magamigeg
eimeg. Telamogopnigel
      esemiegel ap
nige gisgog tfamogtetj ninonal
      penegnmoiegel. teli
      apigsigtagatjig
oegaioinametjig, ap gil
      Nisgamtli
apigsigtoin eloeooltieg,
      mlgeninmetj
oinsotil mogtigalin
      gesinogamgel,
pintjigel gogel tjiglatoin.
      Ntliatj.
Passamaquoddy

Nmihtaqs, spomkik eyin,
komac kcitpot kwisowon.

Mecimite knihkanapeksin.

Tan elipawatomon
 mecimite kisi leyic.
 skitkimiq nakate spomkik.

Miline pemkiskahk
 ntopanomon.

Onheltomuwine
 ntolakmiksowakononnul.
 talute nilun eli
 onheltomukot tan yuhk
 kisi wapoleyowinokot.

Wicuhkemine skat
 ntowapoli peciyahtiwnewin.
    •

Sami kil knihkaneyaw.
 kinson, naka komac kocitpos,

 toke nakate askomiw.
    •

     Niyalic.
     Ojibwa
Nossinan ishpiming gijigong
     ebiian.
Apegish kttchitwawendaming
      kid ijinikasowin'.
Apegish bi-dagwishinomagak kid
          ogimawiwin.
Enendaman apegish ijwebak.
tibishko gijigong me go gaie
      aking.
Mijishinam nongom gijigak nin
pakwejiganiminan minik eioiang
      endasso-gijigak.
Bonigidetawishinam gaie ga-iji-
          nishkiigoian.
Eji-bonigidetawangidwa gi-iji-
          nishkiiiangidjig.
Kego gaie ijiwijishigangen
      gagwedibeningewining.
Midagwenamawishinam dash
    . maianadak.
     Mege-ing.
  Maliseet

  Kmihtaqson spomkik eyin
   komac kcitpot qisuwon;
   mecimite knihkanapeksin
   tan eli pawatomon,
   mecimite kisi leyic skitkomiq
   tahalu spomkik.

  Miline pemkiskahk ntopanomon;
   onheltomuwine            •
   ntolahkomiksuwakononnul
   tahalu nilun eli onheltomuwokot
   tan yuth kisi wapoleyuwmomoq;
   wicuhkemine skat towapoli.
   peciyahtiwnewin.
  Sami kil knihkani kinson,
   naka kehkcitposiyin,
   tokec naka askomiw.
  Nitleyic.
 Penobscot
 BURNURWURBSKEK

 (Cmrtanqsena, spomkik eyan,
  wewselmoquotch eltwisian,
  amante neghe
  pelsJwewttawekparte
  ketepeltamohanganeck;

  eli kiktanguak
 ketletamohangan;
  spomkik tali yo nampikik
  petchikiktanguatetche.

 Mamaline yo pemighisgak
  ptaskiskue ntaponmena,
  yopahatchi aneheldamawihek
  kessi kakanwihiolek'pan,
  eli nyona kisi
 aneheldamahoket
  kekanwiaktepanik;
  mosak ketali tchikiktawighek
  tamambautchi
 saghihunmihinam'ke,
  ulahamist'ke saghehusuhamine
  mematchikil.

 NiaJetc.
MALISEET-ENGUSH

OUR FATHER, there
 in the future world
very holy is your name;
always be the leader
 the way you wanted,
always the way
 you wanted on earth
 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 most powerful
and the holiest.
now and forever.
Amen
                                                                                      JJP

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                           13.   Trade and Intercourse Act
                                   July 22,  1790
       Unrest on  the frontiers threatened the peace of the young nation, and President
       Washington and Secretary of War Knox called on Congress to provide legislation to
       prevent further outrages. Congress replied in July  1790 with the first of a (eriesoflaws
       "to regulate trade and intercourse with the  Indian tribes." These laws, which were
     • originally designed to implement the treaties and enforce them against obstreperous
       whites, gradually came to embody the basic features of federal Indian policy.
   An Act to regulate trade and intercourse with
the Indian tribes.

   SF.CTION I.  Be it enacted .  . .  , That no
person shall be permitted  to carry on any
trade or intercourse with the Indian tribes,
without a license for that purpose under the
hand and seal of the superintendent of the
department, or of such other person as the
President of the United States shall appoint
for that purpose; which superintendent, or
other person so appointed, shall, on applica-
tion, issue such license to any proper person,
 who shall  enter into bond with one or  more
 sureties, approved of by the superintendent,
 nr person issuing  such license,  or by the
 President  of the United States, in the penal
 sum of one thousand dollars, payable to the
 President of the United States for the time
 l>eing, for the use of  the United States,
 • onditioned for the true and faithful obser-
 ••ance of such rules, regulations and restric-
 •ions, as now are, or hereafter shall be made
for the government of trade and intercourse
with the Indian tribes. The said  superin-
tendents, and persons  by them licensed as
aforesaid, shall  be  governed in all  things
touching the said trade and intercourse, by
such rules and regulations as the President
shall prescribe. And no other person shall be
permitted to carry on any  trade  or  inter-
course with the Indians without such license
as aforesaid. No license shall be granted for a
longer term than two  years. Provided never-
theless. That the President may make such
order  respecting the tribes surrounded  in
their settlements by the citizens of the Unit-
ed States, as to secure an intercourse without
license, if he may deem it proper.
    SEC.  2.  And be it further enacted, That the
superintendent, or person issuing such li-
cense, shall have full power and authority to
recall all such licenses as he may have issued,
if the pers'on so licensed shall transgress any
of the regulations or restrictions provided for
 the government of trade and intercourse
                                          14
with the Indian tribes, and shall put in suit
such bonds as he may have taken, immedi-
ately on the breach of any condition in said
bond: Provided always, That if it shall appear
on trial, that the person from whom such
license shall have been recalled, has not of-
fended against any of the provisions of this
act,  or  the  regulations prescribed for the
trade and intercourse with the Indian tribes,
he  shall  be  entitled  to  receive a  new
license.
   SF.C.  3. And he it further  enacted, That
every person who shall attempt to trade with
the Indian tribes, or be found in the Indian
country with such merchandise in his pos-
session as are usually vended to the Indians,
without a license first had and obtained, as in
this act prescribed, and being thereof con-
victed in any court proper to try the same,
shall forfeit  all  the merchandise so offered
for sale to the Indian tribes, or so found in
the Indian country, which  forfeiture shall be
one half to the benefit  of the person prose-
cuting, and the other half to the benefit of
the United States.
    SF.C. 4.  And  he it  enacted and declared,
 That no sale of lands made by any Indians,
or any  nation or tribe of Indians within the
 United States, shall be valid to any person or
 persons, or to any state, whether having the
 right of pre-emption to such lands or not,
 unless  the  same shall be made and duly
 executed at some public treaty,  held under
 the authority of the United States.
    SKC. 5.  And he it further enacted. That  if
 any  citizen  or  inhabitant  of the United
 States, or of either of the territorial districts
 of the United States, shall go into any town,
settlement or territory^Plniing to any na-
tion or tribe of Indians, and snail there com-
mit any crime upon, or trespass against, the
person or property of any  peaceable and
friendly Indian or Indians, which, if com-
mitted within the jurisdiction of any state, or
within the jurisdiction of either of the said
districts,  against a citizen  or white inhabi-
tant thereof,  would be  punishable by the
laws of such state or district, such offender
or  offenders  shall  be subject  to the same
punishment, and shall be proceeded against
in the same manner as if the offence had been
committed  within the  jurisdiction  of the
state or district  to which he  or  they may
belong, against a citizen or white inhabitant
thereof.
    SEC. 6.  And be it further enacted, That for
 any of the  crimes or offences  aforesaid, the
 like proceedings shall be had for apprehend-
 ing, imprisoning or bailing the offender, as
 the case may be,  and  for recognizing the
 witnesses for their appearance to testify in
 the case, and where the offender shall be
 committed, or the witnesses shall  be in a
 district other than that in which the offence
 is to be tried, for the removal of the offender
 and the witnesses  or either of them, as the
 case may be, to the district in which the trial
 is  to be  had, as by the act  to establish the
 judicial  courts  of the  United States, are
 directed for any crimes or offences against
 the United States.
    SEC.  7. And be it further enacted, That this
 act shall be in force for the term of two years,
 and  from  thence  to the end of the next
 session of Congress, and no longer.
     [U.S. Statutes at I<•"" '•""  '" n
                                                                                    b<
                                                                                    sc-

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                              134.  Indian Citizenship Act
                                      June 2, 1924
        la 1924 Congressgranted citizenship to all Indians born within the United States who
        were not yet citizens.
   An Act  To authorize the Secretary of the
Interior to  issue  certificates of citizenship  to
Indians.

   Be it enacted  . .  . , That all non-citizen
Indians born within the territorial limits of
the United States be, and they are hereby,
declared to be citizens of the United States:
Provided, That the granting of such citizen-!
ship shall not in any manner impair or other-
wise affect the right of any Indian to tribal or
other property.

    [U.S. Statutes at Large, 43:253.]

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Treaty Series, No. 109
8 Statutes at Large, 21&-23
                              33

       GREAT  BRITAIN  :  DECEMBER 24,  1814

The  Treaty of Ghent.  Treaty of Peace and Amity, signed at Ghent
  December %4> 1814-  Original in English.
  Submitted to the Senate February 15,1815.  Resolution of advice and
  consent February 16, 1815.  Ratified by the United States February
  17, 1816.  Ratified by  Great Britain December SI, 1814.  Ratifica-
  tions  exchanged  at Washington February  17, 1815.  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 Hia Majesty's Meet; 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.

                     ABTICLE  THE FIRST.
  There shall be a firm and universal Peace between TTia 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

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	     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 Passamaquoddy 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.

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576                     Document SS
                      ABTICLE THE THIED.
  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 have contracted during their captivity.  The two Contracting
Parties respectively engage to discharge in specie the advances which
may have been made by the other for the sustenance and maintenance
of such prisoners.
                     ARTICLE THE FOURTH.
  Whereas it was stipulated by the second Article in the Treaty of
Peace1 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 then-
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
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 by a declaration or report under their hands
and seals decide to which of the two Contracting parties the several
  1 Document 11.

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	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 the 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 so 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 ex^arte
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.
                     ABTICLE  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 Peace *  between the two Powers as 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  tlie River S* Croix directly North  to  the abovementioned
North West Angle of Nova Scotia, thence along the said  Highlands
which divide those Rivers that empty themselves into  the River
S* Lawrence  from  those which fall into the Atlantic  Ocean to the
  1 Document 11.

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578                      Document S3
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
Iroquois 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 afld 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 sucJ^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 Peacel that portion of the boundary
of the United States from the pointwhere 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.

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                     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  Peace'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.
      115605°—31—vol. 2	39

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580                     Document S3
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
judge 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.

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                      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.
                      AKTICLE 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 all 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 is 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.

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582                       Document 88
  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 GOULBTJHN     [Seal]

                                    WILLIAM ADAMS*       [Seal]

                                    JOHN QUINCT ADAMS   [Seal]

                                    J. A. BAYARD          [Seal]

                                    H. CLAY.              [Seal]

                                    JON» RUSSELL          [Seal]

                                    ALBERT GALLATIN     [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 sea, 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 Niles'  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 OP 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 him 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 16, 1815).

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                       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 under  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, e. 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:

  This is to certify that on the seventeenth day of February one thousand eight
hundred and fifteen, at 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 MI 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 thia seventeenth day of February, one thousand eight
hundred and fifteen.
                                     [Seal)  ANTHONT S» 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.  Jt was, there is no doubt, lost sight of in the very important object

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584                         Document 88
of peace.  In all other treaties between the United-States and other powers, the
Ministers of each party 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 in the instrument
delivered to this government, which was reciprocated in that delivered to the
government of France.  In the Treaty with Spain in 1795., Mr Pinckney signed
before the Prince of the Peace; the United-States had rank likewise, over Spain.
in the instrument delivered to them.  It is understood, that in treaties between all
powers, this principle of equality is generally, if not invariably recognized and
observed.  In the  exchange of ratifications it 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 Mr 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 itself, it may have  a good
effect, that you should explain to the British government, the sentiments of The
President on it.

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                                 Bangor - January, 1834

RESOLVE 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 10,1793

       Whereas, by a resolve of the general court passed on the 26th day of June last Alexander
Campbell, John Allan and George Stlllman 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 Passamaquoddy 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 unlocatcd 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 Passamaquoddy 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

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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, viz: 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 less: also
Township No. 2 in the first range surrcyed by Mr. Samuel Titcomb, 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 first 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 Pine 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 arc entitled; also assign to said Indians the privilege of fishing on both
branches of the river  Schoodic without hlnderance 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 Alexander Campbell. John Allan and George Stillman, the

          This is a reproduction of a copy of the purported Treaty of 1795 - page 2 of 3

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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.
 Alex. Campbell            Seal       Francis Joseph Neptune "X"  (his mark)      Seal
 J.Allen                   Seal      John Neptune "X" (his mark)               Seal
 George Stillman           Seal       Picl Neptune "X" (his mark)               Seal
                                     Joseph Neptune "X"  (his mark)             Seal
                                      Piel Denny "X"  (his mark)                 Seal
                                     Jonalc 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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lawr-findjjobe adequate com
services rendered "and resukSo
                                Sation for
services reno'efed'and re$uksobtained, con-
sidering the contipgem nature~ofrh«- case,
plus all reasonable expenses incurred in
prosecution of the claim; but the>mtJunt so
fix*a by the Commissions-exclusive of re-
tmbursements for actual expenses, shall not
                       143.
exceed  10 per centum o^pre amount  re-
covered in.any case. . . .
  • The Attorney General or his assistants
  all represent the United States in all claims
presented to the"Commission. . . .

   [U.S. Statutes at Large, 60:1049-56. ]
                              House Concurrent Resolution 108
                                    August 1, 1953
        In the Eighty-third Congress a fundamental change was made in Indian policy. House
        Concurrent Resolution 108 declared it to he  the policy of the United States to abolish
       federal supervision over the tribes as soon as possible and to subject the Indians to the
        same laws, privileges, and responsibilities as other citizens of 'the United States. At a
        result of this resolution the government began the process of "termination," which
        aroused strong opposition on the part of the Indians.
Whereas it  is the  policy of Congress, as
   rapidly as possible, to make the Indians
   within the territorial limits of the United
   States subject to the same laws and enti-
   tled to the same privileges and respon-
   sibilities as are applicable to other citizens
   of the United States, to end their status as
   wards of the United States, and to grant
   them  all  of the  rights and prerogatives
   pertaining to American citizenship; and
Whereas the Indians within the territorial
   limits of the United States should assume
   their  full responsibilities as  American
   citizens:  Now, therefore, be  it


   Resolved by the House of Representatives (the
Senate concurring),


 That it is declared  to be the sense of Con-
gress that, at the earliest possible time, all of
the  Indian  tribes  and  the  individual
members thereof located within the States of
California, Florida, New York,  and Texas,
and all of the following named Indian tribes
and individual members thereof, should be
freed from Federal  supervision and control
and from all disabilities and limitations spe-
                                             cially applicable to Indians:  The  Flathead
                                             Tribe of Montana, the Klamath  Tribe of
                                             Oregon, the Menominee Tribe of Wiscon-
                                             sin, the Potowatamie Tribe of Kansas and
                                             Nebraska, and those members of the Chip-
                                             pewa Tribe who are on the Turtle Mountain
                                             Reservation,  North Dakota. It is fun her
                                             declared to be the sense of Congress that,
                                             upon the release of such tribes and individu-
                                             al  members thereof from such  disabilities
                                             and limitations, all offices of the Bureau of
                                             Indian Affairs in the States  of  California,
                                             Florida, New York, and Texas and all other
                                             offices of the Bureau of Indian Affairs whose
                                             primary purpose was  to serve any  Indian
                                             tribe or individual Indian freed from Federal
                                             supervision should be abolished. It is further
                                             declared to be the sense of Congress that the
                                             Secretary of the Interior should examine all
                                             existing legislation dealing with such Indi-
                                             ans, and treaties between the Government of
                                             the United States and each such tribe, and
                                             report to Congress at the earliest  practicable
                                             date, but not later than January 1,  1954, his
                                             recommendations for such legislation as, in
                                             his judgment,  may  be necessary to accom-
                                             plish the purposes of this resolution.
                                                [U.S. Statutes at  Large, 67:B132.]
                                144.  Public Law 280
                                   August 15, 1953
        Tribal self-determination and tribal relations with the federal government were
        significantly changed by Public Law 280 of the Eighty-third Congress, which extended
        state jurisdiction over offenses committed by  or against Indians in the  Indian
        country.
                                         233

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junsdit
   An Act To confer jurisdiction on the States of
 California, Minnesota, Nebraska,  Oregon, and
 Visconsin, with respect to criminal offenses and
 ivil coasts of action  committed or arising on
 ndian reservations within such  States, and for
 tber purposes,

   .... SEC.  2. Title 18,  United  States
 'ode, is hereby amended  by  inserting  in
 hapter 53 thereof immediately after section
 161  a  new section,  to  be  designated  as
 •ection  1162, as follows:
   "§1162.  State jurisdiction over offenses
 ommitted by or against Indians in the In-
 lian country
   "(a) Each of the States listed in the follow-
 ng table shall have jurisdiction over offenses
 :ommitted by or against Indians in the areas
 >f Indian country listed opposite the name of
 :he State to the same extent that such State
 lias  jurisdiction over  offenses committed
 elsewhere within the State,  and  the criminal
 laws of such State shall have the same force
 mil effect  within such Indian country  as
•hey have elsewhere within the  State:

  "State of           Indian country affected
California 	All Indian  country  within the
                 State
 Minnesota ....All Indian  country within the
                 State,  except the Red  Lake
                 Reservation
Nebraska	All Indian country within th
                 State
Oregon 	All Indian country within th
                 State,   except   the   War
                 Springs Reservation
Wisconsin  	All Indian country within th
                 Sute, except the Menomine
                 Reservation

   "(b) Nothing in this section  shall autho
rize the alienation, encumbrance, or taxatio
of any real or personal property, including
water rights, belonging to any Indian or any
Indian  tribe, band, or community  that U
held in trust  by the United States or ij
subject to a restriction against alienation inv|
posed by the United States; or  shall autho
rize regulation  of the use of such property iii
a  manner  inconsistent  with any  Federal
treaty,  agreement,  or statute or with any
regulation made pursuant thereto; or shal
deprive any Indian 'or  any Indian  tribe,
band, or community of any right, privilege
or immunity afforded under Federal treaty
agreement, or statute with respect to hunt
ing, trapping,  or fishing or the  control, li
censing, or regulation thereof. .  . ."
                              [U.S. Statutes at Large, 67:588-90.]

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igs.Mnto a final report. Within six months
fter the\reports of the investigating'task
orces, the Commission shall submifits final
eport, together^wtfi the recommendations
hereon, to the President qf-tnc Senate and
he Speaker of the Housff^Representatives.
The Commission shall ceaseL^to  exist six
nonths after submission of said nnaj report
>ut not later than June 30, 1977. Alfrecords
md papen-'bf the Commission shall  there-
ipon b«r«livered to the Administrator of the
jeneral Services Administration for deposit
                                          in the Archives of the United States.
                                             (b) Any recommendation o_f-rhe Commis-
                                          sion  involving the enactment of legislation
                                          shall be referred by thePresident of the Sen-
                                          ate or the SpeakerpHhe House of Represen-
                                          tatives to the appropriate standing committee
                                          of the Senatrand Housetrf.Representatives,
                                          respectiyrfyTand such committees shall make
                                          a report"thereon to the respective hduse.with-
                                              'io years of such referral.

                                             [U.S. Statutes at Large, 88:1910-13.]
in
      s*
              170. Indian Self-Determination and Education Assistance Act
                                  January 4, 1975
       One mult of the drive for Indian participation in federal programs affecting Indians
       was this act, which provided that tribes could contract to run education and health
       programs themselves. The second part of the act provided more Indian control of schools
       educating Indian children.
                                      tan
   An Act to provide maximum Indian partkipa
tion in the Government and education of Indiai
neople; to provide for the full participation of In-
dian tribes in programs and services conducted by
•'he Federal Government for Indians and to encour-
ige the development of human resources of the
'ndian people; to establish a program of assistance
o upgrade Indian education; to support the right of
'ndian citizens to  control their own educational
ictivities; and for other purposes (P.L. 93-638).
         CONGRESSIONAL FINDINGS

    SEC.  2. (a) The Congress,  after careful
 •eview of the Federal Government's histor-
 ical and  special legal relationship with, and
 resulting responsibilities  to, American  In-
 Jian 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 sur-
    render their  desire to control their rela-
   tionships  both  among themselves and
   with non-Indian governments, organiza-
   tions, and persons.
   (b) The Congress further finds that—
      (1) true self-determination in any so-
   ciety of people is dependent upon an edu-
   cational process which will insure the de-
   velopment of qualified people to fulfill
  . meaningful leadership roles;
      (2) the Federal responsibility for and
   assistance to education of Indian children
   has not effected the desired level of educa-
    tional achievement or created the diverse
    opportunities and personal satisfaction
    which education can  and should provide;
    and
       (3) parental and community control of
    the educational process is of crucial im-
    portance to the Indian people.

           DECLARATION  OF POLICY

    SEC. 3. (a) The Congress hereby recog-
  nizes the obligation of the United  States to
  respond to the strong expression of the In-
  dian people for self-determination by assur-
  ing maximum Indian participation in the di-
  rection of educational as well as other Federal
  services to Indian communities so as to ren-
  der  such  services more  responsive to the
  needs and desires of those communities.
    (b) The Congress declares its commit-
  ment to the maintenance of the Federal Gov-
ernment's unique and  continuing relation-
ship with and responsibility to the Indian
people through the establishment of a mean-
ingful  Indian  self-determination  policy
which will permit an orderly transition from
Federal domination of programs for and ser-
vices to Indians to effective and meaningful
participation  by the Indian  people in the
planning, conduct, and administration of
those programs and services.
   (c) The Congress declares that a major
national goal  of the United States is to pro-
vide 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. ...

       TITLE I—INDIAN SELF-
       DETERMINATION ACT

   SEC. 101.  This title may be cited as the
"Indian Self-Determination Act."

    CONTRACTS BY THE SECRETARY OF THE
                INTERIOR

   SEC. 102. (a) The Secretary of the Interior
is directed, upon the request of any Indian
tribe, to enter into a contract or contracts
with any tribal organization of any such In-
dian tribe to  plan, conduct, and administer
programs, or portions thereof, provided for
in the Act of April 16, 1934 (48 Stat. 596), as
amended by this Act, any other program or
portion  thereof which  the Secretary of the
Interior is authorized to administer for the
l>enefit of Indians under the Act of Novem-
I>cr2, !921(42Stat. 208), and any Act subse-
quent thereto: Provided, however. That the
Secretary may initially decline to enter into
any contract  requested by an Indian tribe if
he finds that:  (I) the service to be rendered to
the Indian beneficiaries of the particular pro-
gram or function to be contracted will not be
satisfactory; (2) adequate protection of trust
resources is not assured, or (3) the proposed
project or function to be contracted  for can-
not be properly completed or maintained by
the proposed  contract: Provided further. That
in arriving at his finding, the Secretary shall
consider whether the tribe or tribal organiza-
tion would be deficient in performance under
the contract with respect to (
(B) bookkeeping and accounting procedures,
(C) substantive knowledge of the program to
be contracted for, (D) community support
for the contract, (E) adequately trained per-
sonnel, or (F) other necessary components of
contract performance.
   (b) Whenever the Secretary  declines to
enter into a contract or contracts pursuant to
subsection (a) of this section, he shall (1) state
his objections in writing to the tribe within
sixty days, (2) provide to the extent practica-
ble assistance to the tribe or tribal organiza-
tion to overcome his stated objections, and (3)
provide the tribe with a hearing,  under such
rules and regulations as he may promulgate,
and the opportunity for appeal on the objec-
tions raised. ...

  CONTRACTS BY THF. SECRETARY OF HEALTH,
         EDUCATION, AND WELFARE

   SEC. 103. (a) The Secretary of Health,
Education, and Welfare is directed, upon the
request of any Indian  tribe, to enter into a
contract or contracts with any tribal organi-
zation of any such Indian tribe to carry out
any or all of his functions, authorities, and
responsibilities under the Act of August 5,
1954(68 Stat. 674), as amended	

  GRANTS TO INDIAN TRIBAL ORCANI/ATIONS

   SEC. 104. (a) The Secretary of the Interior
is authorized, upon  the request of any Indian
tribe (from funds appropriated for the benefit
of Indians pursuant to the Act of November
2, 1921 (42 Stat. 208), and any Act subse-
quent thereto) to contract with or make a
grant or grants to any tribal organization
for—
      (I) the strengthening or improvement
   of tribal  government (including, but not
   limited  to,  the  development,  improve-
   ment, and administration of planning, fi-
   nancial management, or merit personnel
   systems;  the  improvement  of tribally
   funded programs or activities; or the  de-
   velopment, construction, improvement,
   maintenance, preservation, or operation
   of tribal facilities or resources);
      (2) the planning, training, evaluation
   of other activities designed to improve the
   capacity of a tribal organization to enter
                                          274
                                                                                                                                        275

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  into a contract oT^bntracts pursuant to
  section 102 of this Act and the additional
  costs associated with the  initial years of
  operation under such a contract or con-
  tracts;
     (3) the acquisition of land in connec-
  tion with items (1) and (2) above: Provided,
  That in the case of land within reservation
  boundaries or  which adjoins on at least
  two sides lands held in trust by the United
  States for the tribe or for individual In-
  dians, the Secretary of Interior may (upon
  request of the tribe) acquire such land in
  trust for the tribe; or
     (4) the planning, designing, monitor-
  ing, and evaluating of Federal programs
  serving the tribe.
  (b) The Secretary of Health,  Education,
and Welfare may,  in accordance with regula-
tions adopted pursuant to section 107 of this
Act, make grants to any I ndian tribe or tribal
organization for—
      (I) the development, construction, op-
   eration, provision, or maintenance of ade-
   quate health facilities or  services includ-
   ing the training of personnel  for such
   work, from funds appropriated to the In-
   dian Health Service for Indian health ser-
   vices or Indian health facilities; or
      (2) planning, training, evaluation or
   other activities designed  to improve the
   capacity of a tribal organization to enter
   into a contract or contracts pursuant to
   section 103 of this Act. . .  .

        EFFECT ON F.XISTING  RIGHTS

   SEC. 110. Nothing in  this Act shall be
construed as—
      (1) affecting, modifying, diminishing,
   or otherwise impairing the sovereign im-
   munity from suit enjoyed by an  Indian
   tribe; or
      (2) authorizing or requiring the termi-
   nation of any existing trust responsibility
   of the United States with respect to the
   Indian people.

        TITLE II—THE INDIAN
   EDUCATION ASSISTANCE ACT

   SF.C. 201. This title may be cited as the
"Indian Education Assistance Act."
PART A—EDUCATION OF INDIANS IN
         PUBLIC SCHOOLS

   SEC. 202. The Act of April 16, 1934 (48
Stat. 596), as amended, is further amended
by adding at the end thereof the following
new sections:
   "SEC. 4.  The  Secretary of the Interior
shall not enter into any contract for the edu-
cation of Indians unless the prospective con-
tractor has submitted to, and has had ap-
proved by the Secretary  of the Interior, an
education plan, which plan, in the determi-
nation of the Secretary, contains educational
objectives which adequately address the edu-
cational needs of the Indian students who are
to be beneficiaries of the contract and assures
that the contract is capable of meeting such
objectives:  Provided, That where students
other than  Indian  students  participate  in
such programs, money expended under such
contract shall be prorated to'cover the par-
ticipation of only the Indian students.
   "SEC. 5 (a)  Whenever a school  district
affected by  a contract or contracts for the
education of Indians pursuant to this Act has
a local school board not composed of a major-
ity of Indians, the parents of the Indian chil-
dren enrolled in the school or schools affected
by such contract or contracts shall  elect a
local committee from among their number.
Such committee shall fully participate in the
development of, and shall have the authority
to approve or disapprove programs to be con-
ducted under such contract or contracts, and
shall carry out  such other duties, and be so
structured, as the Secretary of the  Interior
shall by regulation provide. . . .
    "Sec. 6.  Any school  district educating
 Indian students who are members of recog-
nized  Indian tribes, who do  not normally
reside in the State in which such school dis-
trict is located, and  who are residing in Fed-
eral boarding facilities for the purposes of
attending public schools within such district
 may, in the discretion of the Secretary of the
 Interior, be reimbursed by him for the full
 per capita costs of educating such Indian stu-
dents." . . .
    [U.S. Statutes at Large, 88:2203-14.]
                                         276
                         171. Passamaquoddy Tribe v. Morton
                                   January 20, 1975
        A major issue in the claims of Indians in the eastern states was whether section 4cftbe
        Indian Trade and Intercourse Act of 1790 (often mistakenly called the Nonintercourst
        Act), which prohibited cessions of Indian lands accept under a federal treaty, applied to
        them. If it did, then land cessions made to eastern states after 1790 were invalid. When
        the Department of the Interior refused to take up the Passamaquoddies' case because it
        claimed it bad no trust responsibility toward the tribe, the Indians sued Secretary
        Morton. The decision  of Judge Edward T. Gignaux,  which supported the Indian
        position, began a new period in the history of the eastern tribes.
   .... [The plaintiffs'] basic position is that
the Nonintercourse Act applies to all Indian
tribes  in the  United States, including the
Passamaquoddies, and  that the Act  estab-
lishes a trust relationship between the United
States and  the Indian tribes  to which  it
applies,  including  the  Passamaquoddies.
Therefore, they say, defendants may not
deny plaintiffs' request for litigation on the
sole ground that there is no trust relationship
between the United States and the Tribe. In
opposition, defendants  and intervenor [the
State of Maine] contend that only those In-
dian tribes which have been "recognized" by
the Federal Government by treaty, statute or
a consistent course of conduct are entitled to
the protection of the Nonintercourse Act
and, since the  Passamaquoddies  have not
been "federally  recognized," the Act is not
applicable to  them.  Defendants and  inter-
venor also deny that the Nonintercourse Act
creates  any trust relationship between the
United States  and the Indian tribes to which
it applies. . . .
   The rules of statutory interpretation by
which  this Court must be guided in  deter-
mining  the  applicability of  the Noninter-
course Act to the Passamaquoddies are sum-
marized in United States v.  New England
Coal and Coke Co.,  318 F. 2d 138 (1st Cir.
1963), as follows:

   In matters  of statutory construction the
   duty of this court is to give effect to the
   intent of Congress, and in doing so our
   first  reference is of course to the literal
   meaning of words employed. Unless the
   contrary appears, it is presumed that stat-
   utory  words are used in their ordinary
   sense	

   Defendants have  rejected plaintiffs'  re-
quest for assistance on the ground that no
trust relationship exists between the United
States and the Passamaquoddies. The Court
disagrees. In the only decided cases to trtat
this issue, the Court of Claims has, in a series
of decisions during the last ten years, defini-
tively held that the Nonintercourse Act im-
poses a trust or fiduciary obligation on the
United States to protect land owned by all
Indian tribes covered by the statute....
   These Court of Claims decisions are con-
sistent with an unbroken  line of Supreme
Court decisions which, from the beginning,
have defined the fiduciary  relationship be-
tween the Federal Government and the In-
dian tribes as imposing a distinctive obliga-
tion  of trust upon the Government in  its
dealings with the Indians. .  . .
   In view of the foregoing, the conclusion
must be that the Nonintercourse Act estab-
lishes a trust relationship between the United
States and the  Indian tribes, including the
Passamaquoddies, to  which it applies. The
Court holds that the defendants erred in de-
nying plaintiffs' request for litigation on the
sole ground that no trust relationship exists
between the United States and the Passama-
quoddy Indian Tribe.
63.]
   [388 Federal Supplement 654-55, 660, 662 -
                                                                                                                                           277

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   Sec.
   1701
   1702
   1703.
   1704.
           (b)
           (c)
           (d)
  1705.
  1706.
  1707.
 1708.
 1709.
 1710.
 1711.
 1712.
1715.
1716.
                    iy—UNUIAJN CLAIMS SETTLE-
                  MENTS WITH STATES

      SUBCHAPTER I—RHODE ISLAND INDIAN
               ' CLAIMS SETTLEMENT

               PART A—GENERAL PROVISIONS


   Congressional findings and declaration of policy.
   Definitions.
   Rhode Island Indian Claims Settlement Fund;  establishment.
   Option agreements to purchase private settlement lands.
     (a)  Acceptance of option agreement assignments;  reasonableness
         of terms and conditions.
         Amount of payment.
        Limitation on option fees.
        Application of option fee.
    (e)  Retention of option payment.
  Publication of findings; approval of prior transfers and extinguish-
    ment of claims  and aboriginal title involving Narragansett Tribe
    and town of Charlestown, Rhode Island.
  Findings by Secretary.
  Purchase  and  transfer of private settlement lands.
    (a)  Determination  by Secretary;  assignment of settlement lands
        to Slate Corporation.
        Moneys remaining in fund.
        Duties and liabilities of United States upon discharge of Sec-
        retary's duties;  restriction on conveyance of settlement lands;
        affect on easements for public or private purposes.
 Applicability of Stale law.
 Preservation of Federal benefits.
 Authorization of appropriations.
 Limitation of actions; jurisdiction.
 Approval of prior transfers and extinguishment of claims  and ab-
   original title  outside town of Charlestown, Rhode Island and in-
   volving other Indians in Rhode Island.

               PART B—TAX TREATMENT
Exemption  from taxation.
  (a) General exemption.
  (b) Income-producing activities.
  (c)  Payments in lieu of taxes.
Deferral of capital gains.
                         594
                                                                                 S«c.
                                                                                 1721.
                                                                                 1722.
                                                                                 1723.
                                                                                  1724.
          (b)
          (c)
                                                                                             1 E.1V 11
Congressional findings and declaration of policy.
Definitions.
Approval of prior transfers and extinguishment of Indian title and
  claims of Indians within State of Maine.
  (a)  Ratification by Congress; personal claims unaffected;  United
       States barred from asserting claims on ground of noncompli-
       ance of transfers with State laws or occurring  prior to De-
       cember 1, 1873.
  (b)  Aboriginal title extinguished as of date of transfer.
  (c)  Claims extinguished as of date of transfer.
  (d)  Effective date; authorization  of appropriations; publication
       in Federal Register.
Maine Indian Claims Settlement and  Land Acquisition Funds in the
  United States Treasury.
  (a)  Establishment of Maine Indian  Claims Settlement Fund;
       amount.
  (b)  Apportionment  of settlement fund; administration;  invest-
       ments; limitation on distributions; quarterly investment in-
       come payments;  expenditures for aged members; cessation of
       trust responsibility following Federal payments.
   (c)  Establishment of Maine Indian  Claims Land Acquisition
       Fund;  amount.
   (d)  Apportionment of land acquisition fund; expenditures for ac-
       quisition of land or  natural resources;  trust acreage; fee
       holdings;  interests in corpus of trust for Houlton Band fol-
       lowing termination of Band's interest in trust;  agreement for
       acquisitions  for  benefit  of  Houlton Band:  scope, report to
       Congress.
   (e)  Acquisitions contingent upon agreement as to identity of land
       or natural resources  to be sold, purchase  price and  other
       terms of sale; condemnation proceedings by Secretary;  other
       acquisition authority barred for benefit of Indians in State of
       Maine.
   (0  Expenditures for Tribe, Nation, or Band contingent  upon
       documentary relinquishment  of claims.
   (g)  Transfer limitations of section 177 of this title inapplicable to
        Indians in State of Maine;  restraints on alienation as provid-
       ed in section; transfers invalid ab initto except  for:  State and
        Federal condemnations, assignments,  leases, sales,  rights-of-
       way, and exchanges.
   (h) Agreement on  terms for management  and administration of
        land or natural  resources.
                            595

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 1/24.    "•*•: maian Claims Settlement and Land Acquisition hunds in the
               ;d States Treasury—Continued
          v^- Condemnation of trust or restricted land or natural resources
               within Reservations: substitute land or monetary proceeds as
               medium of compensation; condemnation of trust land  with-
               out Reservations:  use of compensation for reinvestment in
               trust or fee  held acreage, certification of acquisitions;  State
               condemnation proceedings:  United States as necessary party,
               exhaustion of State administrative remedies, judicial review in
               Federal courts,  removal of action.
          (j)   Federal condemnation under other laws;  deposit and  rein-
               vestment of  compensatory proceeds.
 1725.   State laws applicable.
          (a)  Civil and criminal jurisdiction of the State and the courts of
              the State;  laws of the State.
          (b)  Jurisdiction of State of Maine and utilization of local share of
              funds pursuant to the Maine Implementing Act;  Federal
              laws or regulations governing services or benefits unaffected
              unless expressly so provided; report to Congress of compara-
              tive Federal  and State funding for Maine and other States.
          (c)  Federal criminal jurisdiction inapplicable in State of Maine
              under certain sections  of Title 18; effective date:  publication
              in Federal Register.
          (d)  Capacity to sue and be sued in State of Maine and Federal
              courts; section  1362 of Title 28 applicable to civil actions;
              immunity from  suits provided in Maine Implementing  Act;
              assignment of quarterly income  payments  from settlement
              fund to judgment creditors for satisfaction of judgments.
         (e)  Federal consent  for amendment of Maine Implementing Act;
              nature and scope of amendments; agreement respecting State
              jurisdiction over Houllon  Band Lands.
         (0   Indian jurisdiction separate and distinct from State civil and
              criminal jurisdiction.
         (g)  Full faith and credit.
         (h)  General laws and regulations affecting Indians applicable, but
              special laws and regulations inapplicable, in State of Maine.
         (!)   Eligibility for Federal financial benefits; Federal tax consid-
              erations: similar treatment and reservation lands.
1726.   Tribal  organization.
1727.   Implementation of Indian Child Welfare Act.
         (a)  Petition for assumption of exclusive jurisdiction;  approval by
              Secretary.
         (b)  Consideration and  determination  of petition by Secretary.
         (c)  Actions or proceedings within existing jurisdiction unaffect-
              ed.
                                 596
\ILI.
              .
         (d)  Reservations within section  1903(10) of this til  _
         (e)  Indian tribe within section  1903(8) of this titlt. ^IKe juris-
             diction over child welfare unaffected.
         (f)  Assumption determinative of exclusive jurisdiction.
1728.  Federal financial  aid programs unaffected by payments under sub-
         chapter.
         (a)  Eligibility  of State of Maine for participation without regard
              to payments to designated Tribe, Nation, or Band under sub-
              chapter.
         (b)  Eligibility  of designated Tribe, Nation,  or Band for benefits
              without regard to payments from State of Maine except in
              considering actual financial situation in determining need of
              applicant.
          (c)  Availability of settlement or land acquisition funds  not  in-
              come or resources or otherwise used to  affect federally assist-
              ed housing programs or Federal finanical assistance or other
               Federal benefits.
 1729.  Deferral of capital gains.
 1730.  Transfer of tribal trust funds held by the State of Maine.
 1731.  Other claims discharged by this subchapter.
 1732.  Limitation of actions.
 1733.  Authorization of appropriations.
 1734.  Inseparability of provisions.
 1735.  Construction.
           (a)  Law governing; special legislation.
           (b)  General  legislation.


           SUBCHAPTER I— RHODE ISLAND INDIAN
                        CLAIMS SETTLEMENT

                      PART  A — GENERAL PROVISIONS


  §  1701.    Congressional findings  and declaration of  policy
     Congress finds and declares that —
         (a) there are pending  before  the  United States District Court for the
       District of Rhode Island two consolidated actions that  involve Indian
       claims to certain  public and private lands within the town of Charles-
       town, Rhode  Island;
         (b)  the pendency of these lawsuits  has resulted in severe  economic
       hardships for the  residents of the town of Charlestown by clouding the
       titles to much of  the land in the town, including lands not involved in
       the lawsuits;
                                    597

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                                        CJ.S. Indlant {}  19, 28 el ieq.

                         PART B—TAX TREATMENT
   §  1715.    Exemption from taxation

                            (a) General exemption
     Except as otherwise provided  in subsections (b) and (c) of this section, the
   settlement lands received by  the State Corporation shall not be subject to
   any form of Federal, State, or local taxation while held by the State Corpo-
   ration.

                                        <
                        (b) Income-producing activities
    The exemption provided in subsection (a) of this section shall not apply to
  any  income-producing activities  occurring on  the settlement  lands.

                         (c) Payments In lieu of taxes
    Nothing in this subchapter  shall prevent the making of payments in  lieu
  of taxes by (he State Corporation for services provided in  connection with
  the settlement lands.

  (Pub.L. 95-395. Title  II, § 201, as added Pub.L.  96-601, § 5(a).  Dec. 24, 1980, 94
  Slat. 3498.)

                               Historic*) Note
   Effective Dile.  Section 5(b) of  Pub.L.     Legislative History.  For legislative history
  96-601 provided (hit:  "The amendment   and purpose of Pub.L.  96-601, «ee 1980 U.S.
  m*de by subsection (a)  (enacting this part)   Code Cong, and Adm.News, p. 7218.
  shall lake efTecl on  September 30. 1978."   v
 Taxation <2=>ISI.
Library References

         CJ.S. Taxation }} 212. 258.
 §  1716.   Deferral of capital gains

   For purposes of Title 26, any sale or disposition of private settlement
 lands pursuant to the terms and conditions of the settlement agreement shall
 be treated as an involuntary conversion within the meaning of section 1033
 of Title 26.

 (Pub.L. 95-395. Title II. § 202. as added Pub.L.  96-601,  § 5(a). Dec. 24, 1980. 94
 Stat. 3499.)

                             Historical Note
  Effective  Date.  Section effective Sept. 30,    Legislative History. For legislative history
 1978. see section S(b) of Pub.L. 96-601. set  and purpose of Pub.L. 96-401. see 1980 U.S.
out as an Effective Dale note under section  Code Cong, and  Adm.News, p. 7218.
 1715 of this title.

                                 606
Inicrnal Revenue M88

 SUBCHAPTER II—MAINE INDIAN  CLAIMS SETTLEMENT


§  1721.   Congressional  findings and declaration of policy
  (a) Congress hereby finds and declares that:
      (1) The  Passamaquoddy Tribe,  the Penobscot  Nation, and the Mai-
    iseet Tribe are asserting claims for possession of  lands within the State
    of Maine and for damages on the ground that  the lands  in  question
    were originally transferred in violation of law, including, but without
    limitation, the Trade and  Intercourse Act of 1790 (I Stat. 137), or sub-
    sequent reeiiactments or versions  thereof.
       (2) The Indians,  Indian  nations, and  tribes and bands  of Indians,
    other than the Passamaquoddy Tribe,  the Penobscot  Nation, and  the
    Houlton Band of Maliseel Indians, that  once may have held aboriginal
    title  to lands within the State of  Maine long ago abandoned  their  ab-
    original  holdings.
       (3) The Penobscot Nation,  as represented as of the time of passage of
    this  subchapter by  the Penobscot Nation's Governor and Council, is
    the  sole successor in interest to the aboriginal entity generally known as
     the  Penobscot Nation which  years ago  claimed  aboriginal title to cer-
     tain  lands in the State of Maine.
       (4) The Passamaquoddy Tribe, as represented as of the  time of pas-
     sage of this subchapter by the Joint Tribal Council of the  Passama-
     quoddy Tribe, is the sole successor in interest to the aboriginal entity
     generally known as the Passamaquoddy Tribe which years ago claimed
     aboriginal title to certain lands in the State of Maine.
       (5) The Houlton Band of  Maliseet Indians, as represented as of the
     time of passage of this subchapter by the  Houlton Band Council, is the
     sole successor in interest, as to lands within  the United States, to the
     aboriginal entity generally known as the Maliseet Tribe which years ago
     claimed aboriginal  title to certain lands in the Stale  of Maine.
       (6) Substantial economic and  social  hardship to a large number of
     land owners, citizens, and communities  in the State of Maine,  and
     therefore  to the economy of the State of Maine as a whole, will result if
     the  aforementioned claims are not resolved promptly.
       (7) This subchapter represents a good faith effort on the part of Con-
     gress to provide the Passamaquoddy Tribe, the Penobscot Nation, and
     the Houlton Band of Maliseet Indians with a fair and just  settlement of
     their land claims.  In the absence of congressional  action, these  land
     claims  would be pursued  through the courts,  a process  which in all
     likelihood would consume many years and thereby promote hostility
     and uncertainty in the State of Maine to the ultimate detriment of the
     Passamaquoddy  Tribe,  the  Penobscot Nation,  the  Houlton Band  of
                                   607
                                                                                                                                                              °0

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       Maine.

        (8) The Stale of Maine, with the agreement of the Passamaqu,
    — Tribe and the Penobscot Nation, has enacted legislation defining the*
      relationship between  the Passamaquoddy Tribe, the Penobscot  Nation,
      and their members, and the  State of Maine.
        (9)  Since 1820, the Slate of Maine  has provided special  services to
      the  Indians residing  within its borders, including the members of the
      Passamaquoddy Tribe, the Penobscot Nation, and the Houlton Band of
      Maliseet Indians.  During this same period, the United States provided
      few  special services to the respective tribe, nation, or band, and repeat-
      edly dented that  it had jurisdiction over or responsibility for the said
      tribe, nation, and band.  In view of this provision of special services by
      the State of Maine, requiring substantial expenditures by the State of
      Maine and made by the State of Maine without being required to do so
      by Federal law, it  is the intent of Congress that the State of Maine not
      be required further to contribute  directly to this claims settlement.
   (b) It is  the purpose of this subchapter—
       (1) to  remove the cloud on the titles to land in the State of Maine
      resulting from Indian claims;
       (2) to  clarify the status of other land and natural  resources in  the
     State of Maine;
       (3)  to ratify the Maine Implementing Act, which defines the relation-
     ship between the State of Maine and the Passamaquoddy Tribe, and the
     Penobscot Nation, and
       (4)  to confirm that  all other Indians, Indian nations and tribes and
     bands of Indians now or hereafter  existing or recognized in the State of
     Maine  are and shall be subject to all laws of the State of Maine, as
     provided  herein.
(Pub.L. 96-420. § 2,  Oct. 10, 1980. 94 Stat. 1785.)

                             Historical Note
  Reference* In Teil.  The Trade and Inter-  subchapler) may be cited as the 'Maine Indi-
course Act of 1790 (I Slit.  137). referred to  in Claims Settlement Act of 1980'."
in subsec. (•)(!). is Act July 22. 1790. c. 3J. I    Uglil«el»e Hlttory.  For legislative history
Slat. 137. which is not classified to the Code.  ln(j purpoje of Pub.L. 96-420, see 1980 U.S.
  Short Title. Section  I of Pub.L.  96-420  Code Cong, and Adm.News. p. 3786.
provided: "Thai this Act [which enacted this
United Stales <£=>I05.
Library Reference*
         C.J.S. United Slates §§ 143. lit.
§  1722.   Definitions
  For purposes of this subchapter, the term—
      (a) "Houlton Band of Maliseet Indians" means the sole successor to
    the Maliseet Tribe of Indians as constituted in aboriginal times in what
    is now the State  of  Maine,  and all its predecessors  and  successors in
                                 608
October 10, 1980, as to lands witnin me unucu air     <>y me .iuu.,o..
Band Council of the Houlton Band of Maliseet It  ^^
  (b) "land or natural  resources" means any real property  or  natural
resources, or any interest in or right involving any real property or nat-
ural resources, including but without limitation minerals and mineral
rights, timber and timber rights, water and water rights, and hunting
and fishing rights;
  (c) "Land Acquisition Fund" means the Maine Indian Claims Land
Acquisition Fund established under section  1724(c) of this title;
  (d) "laws of the State" means the constitution, and all statutes, regu-
lations, and common laws of the State of Maine and its political subdi-
visions and all subsequent  amendments thereto or judicial  interpreta-
tions thereof;
  (e) "Maine Implementing Act" means section 1, section 30, and sec-
tion 31, of the "Act  to Implement the Maine Indian Claims Settle-
ment" enacted by the State of Maine in chapter 732 of the public laws
of  1979;
  (0 "Passamaquoddy Indian Reservation" means those lands as de-
fined in the Maine Implementing Act;
  (g)  "Passamaquoddy Indian Territory"  means those lands as defined
in  the Maine Implementing Act;
  (h)  "Passamaquoddy Tribe"  means the  Passamaquoddy  Indian
Tribe, as constituted  in aboriginal times  and  all its predecessors and
successors in interest.  The Passamaquoddy Tribe is represented, as ol
October 10, 1980,  by the Joint Tribal Council of the Passamaquoddv
Tribe,  with separate  councils at  the Indian Township  and  Pleasam
Point Reservations;
   (i) "Penobscot Indian Reservation" means  those lands as defined ir
 the Maine Implementing Act;
   (j)  "Penobscot Indian Territory" means those lands as defined in th<
 Maine Implementing Act;
   (k) "Penobscot Nation" means the Penobscot Indian  Nation as con
 stituted in aboriginal times, and all its predecessors and successors  it
 interest.  The Penobscot Nation is represented, as of October 10, 1980
 by  the Penobscot Nation  Governor and Council;
    (/)  "Secretary" means the Secretary of the Interior;
    (m) "Settlement Fund"  means  the Maine Indian Claims Settlemen
 Fund established under section  1724(a) of this title; and
    (n) "transfer" includes but is not limited to any voluntary  or invol
 untary sale, grant, lease, allotment, partition, or other conveyance; an;
 transaction the purpose of which was to effect  a sale, grant, lease, allot
 ment, partition, or conveyance;  and any act, event, or circumstano
                               609

-------
             v/i i*4i*U V '
         J6-420, § 3. Del.  10, 1980, 94 Slal. 1786.)
                              Historical Note

   Legislative History. For legislative history
 and purpose of Puh.L. 96-420. tee 1980 U.S.
 Code Cong, and Adm.News, p. 3786.
 §  1723.    Approval of prior transfers and extinguishment of Indi-
               an title and claims of Indians within State of Maine
     (a) Ratification by Congress; personal claims unaffected; United States
      barred from asserting claims on ground of noncompllance of transfers
             with State laws or occurring prior to December 1, 1873
   (1)  Any transfer of land or natural resources located anywhere within the
 United Stales from, by, or  on behalf of the Passamaquoddy Tribe, the Pc-
 nobscot Nation, the Houlton Band of Maliseet Indians, or any  of their
 members,  and any transfer of land or natural resources located anywhere
 within the State of Maine, from,  by,  or  on behalf of any Indian, Indian
 nation, or tribe or band of Indians, including but without  limitation any
 transfer pursuant to  any treaty,  compact, or statute of any  State,  shall  be
 deemed to have been made in accordance with the Constitution and all laws
 of the United States, including but without  limitation the Trade and  Inter-
 course Act of 1790, Act of July  22, 1790 (ch. 33, Sec. 4, I Stat. 137,  138),
 and all amendments  thereto and all  subsequent reenactments and versions
 thereof, and  Congress hereby  does approve and ratify any such  transfer ef-
 fective as of the date of said transfer:  Provided however. That nothing in this
 section shall be construed to  affect or  eliminate the personal claim of any
 individual  Indian (except for any  Federal common law fraud claim) which is
 pursued under any law  of general applicability that  protects non-Indians  as
 well as Indians.

   (2) The  United States is barred from asserting on behalf of any Indian,
 Indian nation, or tribe or band of Indians any claim under the laws of the
 State of Maine arising before October 10, 1980, and arising from any trans-
 fer of  land or natural resources  by any Indian, Indian nation,  or tribe or
 band of Indians, located anywhere within the State of Maine, including but
 without limitation any transfer pursuant to any treaty, compact, or statute
 of any Stale,  on the grounds that  such transfer was not made  in accordance
 with the laws of the State of Maine.
  (3) The  United  States is  barred  from asserting by or on behalf of any
 individual  Indian any claim under the laws of the  State  of Maine arising
 from any transfer of land or natural resources  located anywhere within the
Stale of Maine from,  by, or on behalf of any individual  Indian, which oc-
curred prior  to  December I,  1873, including but without limitation any
transfer pursuant  to any treaty, compact, or statute of any State.
                                 610
  To the extent that any transfer of land or natural i   ^fc * describee; m
subsection  (a)(l) of this section  may  involve land or  i.^^^al resources lo
which the Passamaquoddy Tribe, the Pcnobscot  Nation, the  Houlton Band
of Maliseet Indians, or any of their members, or any  other  Indian, Indian
nation, or tribe or band of Indians had aboriginal title, such subsection (a)
(I) of this section shall be regarded as an extinguishment of  said aboriginal
title as of the date of such transfer.

                (c)  Claims extinguished as of date of transfer
   By virtue of the approval and  ratification of a transfer of land or natural
resources effected by  this section, or  the extinguishment of  aboriginal title
effected thereby, all claims against the United States,  any State or subdivi-
sion thereof, or any  other person or entity, by the Passamaquoddy Tribe, the
Penobscot Nation,  the Houlton  Band of Maliseet Indians  or  any of their
members or by any  other Indian, Indian nation,  tribe or band of Indians, or
any predecessors or successors in  interest thereof, arising at the time of or
subsequent to the transfer and based on any interest  in or  right involving
such land or natural  resources,  including but without limitation claims for
trespass damages or claims  for  use and occupancy, shall be deemed  extin-
guished  as of the date of the transfer.

               (d) Effective date;  authorization  of appropriations;
                        publication In Federal Register
   The provisions of this section  shall  take effect  immediately upon appropri-
 ation of the funds authorized lo  be appropriated to implement the provisions
 of section 1724 of this title.  The Secretary shall  publish notice of such ap-
 propriation in the Federal Register when  such  funds  are appropriated.
 (Pub.L. 96-420, § 4, Oct.  10,  1980. 94 Stat. 1787.)

                              Historical Note
   Reference* In Text. The Trade and Inter-
 course Act of 1790, Act of July 22. 1790 (ch.
 33. Sec. 4.  I Slal.  137.  138). referred lo in
 subsec. (»)(!), is not classified lo the Code.
           Legislative History.  For legislative histor)
         and purpose of Pub.L. 9c~420. see 1980 U.S
         Code Cong, and Adm.News. p. 3786.
 Indians ®=>IO.
Library References
          C.JS. Indians {§ 19. 28 el seq.
 §  1724.    Maine Indian Claims Settlement and  Land Acquisitior
               Funds in  the United States Treasury

        (a) Establishment of Maine Indian Claims Settlement Fund;  amount
    There is  hereby established in the United States Treasury a fund to b<
 known as the Maine Indian Claims Settlement Fund in which I27,000,00(
 shall be deposited following the appropriation of sums authorized by sectiot
 1733 of this title.
                                    611

-------
        Ttltatlon on distributions;  quarterly Investment Income payments;
              expenditure* for aged member*; cessation of trust
     — •           responsibility following Federal payments
   (1) One-half of the principal of the settlement fund shall be held in trust
 by the Secretary for the benefit of the Passamaquoddy Tribe, and the other
 half of the settlement fund shall be held in trust Tor the benefit of the Penob-
 scot Nation.  Each portion  of the settlement fund shall be administered by
 the Secretary in accordance with reasonable terms established  by the Pas-
 samaquoddy Tribe or the Penobscot Nation, respectively,  and agreed to by
 the Secretary: Provided. That the Secretary may not agree to terms which
 provide for investment of the settlement fund in a manner not in accordance
 with section  162a of this title, unless the respective tribe or nation first sub-
 mits a specific waiver  of liability on the part of the United States for any
 loss which may  result from such an investment:  Provided, further. That un-
 til such terms have been agreed upon, the Secretary shall fix the terms for
 the administration of the portion of the settlement fund as to which there is
 no agreement.
   (2) Under no circumstances shall any part of the principal of the settle-
 ment fund be distributed  to either the Passamaquoddy Tribe or the Penob-
 scot Nation,  or  to any  member of either  tribe or nation: Provided, however.
 That nothing herein shall prevent the Secretary from investing the principal
 of said fund  in accordance with paragraph (1) of this  subsection.
   (3) The Secretary shall make  available to the Passamaquoddy Tribe and
 the Penobscot Nation in quarterly payments, without any deductions except
 as expressly provided in section  I725(d)(2) of this title and without liability
 to or on the part of the United States, any income received from the invest-
 ment of that  portion of the settlement fund allocated to the respective tribe
or nation, the use of which shall  be free of regulation by the Secretary.  The
 Passamaquoddy  Tribe and the Penobscot Nation annually shall each expend
the income from SI,000,000 of their portion of the settlement fund for the
benefit of their  respective members who are over the age of sixty.   Once
payments  under this paragraph have been made to the tribe or nation, the
United States shall have no further trust responsibility to the tribe or nation
or their members with respect to the sums paid, any subsequent distribution
of these sums, or any property  or services purchased therewith.

    (c) Establishment of Maine Indian Claims Land Acquisition Fund; amount
  There is hereby established in the United States Treasury a fund to be
known as the Maine  Indian Claims  Land Acquisition  Fund in  which
$54,500,000 shall be deposited following  the appropriation of sums author-
ized by section 1733 of this title.
                                 612
     ' *r-i			 -	    .
      land or natural resources; trust acreage;  fee holdings;
       corpus of trust for Houlton Bar 1 following termlnallot
           Interest In trust; agreement for acquisitions for bv
               of Houlton Band: scope, report to Congress
•Is m
 d's
  The principal of the land acquisition fund shall be apportioned as follows:

      (1)  $900,000 to be held  in trust  for the Houlton Band of Maliseel
    Indians;
      (2)  $26,800,000 to be held in  trust for the Passamaquoddy Tribe;
    and
      (3)  $26,800,000 to be held in trust for  the Penobscot Nation.

The Secretary is  authorized and  directed to expend, at the request of the
affected tribe, nation or band, the principal and any income accruing to the
respective portions of the land acquisition fund for the purpose of acquiring
land or natural resources for the  Passamaquoddy Tribe, the Penobscot Na-
tion, and  the Houlton Band of Maliseel Indians and for no other purpose.
The first  150,000 acres of land or  natural resources acquired for the Pas-
samaquoddy Tribe and the first  150,000 acres acquired for the Penobscot
Nation within the area described  in the Maine Implementing Act  as eligible
to be included within the Passamaquoddy Indian Territory and the Penob-
scot Indian  Territory shall be held in trust  by  the United States for  the
benefit of the respective tribe or nation.  The Secretary is also authorized to
take in trust for-the  Passamaquoddy Tribe or the Penobscot Nation any
land or natural  resources acquired within the aforesaid area  by purchase,
gift, or exchange by such tribe or nation.  Land  or natural  resources ac-
quired outside the boundaries  of the  aforesaid areas shall be held in  fee by
the respective tribe or nation,  and the United States shall have  no further
trust responsibility with respect thereto.  Land or  natural  resources ac-
quired within the State of Maine for the Houlton Band of Malisect Indians
shall be held in trust by  the United States for the  benefit  of the band: Pro-
 vided. That  no land or natural resources shall be so acquired for or  on be-
 half of the Houlton Band of Maliseet Indians  without the prior enactment of
 appropriate legislation by  the State  of Maine  approving  such  acquisition:
 Provided further. That the Passamaquoddy Tribe and the Penobscot Nation
 shall each  have a one-half undivided interest in the corpus of the trust.
 which shall consist of any such property or subsequently acquired exchange
 property, in the event the Houlton Band of Maliseet Indians should termi-
 nate its interest in the trust.
        (4) The Secretary is authorized to, and at the request of either party
     shall,  participate in negotiations between  the State  of Maine and  the
     Houlton Band of Maliseet Indians for the purpose of assisting in secur-
     ing agreement as to the land or natural resources to be acquired by the
      United States to be held  in trust  for the benefit of the Houlton Band.
     Such agreement shall be embodied in  the legislation enacted  by  the
      State of Maine approving the acquisition of such lands as required by
      paragraph (3).  The agreement and the legislation shall  be limited to:
                                                                                        T 7SUSCA ««4t-end-?l
                                                                                                                     613

-------
                                        ,..„.... p.wnuku uy cms SUDCI  ^^k  id
              .he M&ine Implemenling Act  for land or natural  resou.  ^sW  be
              held in irusl for the Passamaquoddy Tribe or Pcnobscot  Nafion;
               (0) provisions limiting the power of the State of Maine to con-
             demn such lands that are no less restrictive than the provisions  of
             this subchapter and the Maine  Implementing Act that apply to the
             Passamaquoddy Indian Territory and the Penobscot Indian Terri-
             tory but not within either the Passamaquoddy Indian Reservation
             or the Penobscot Indian Reservation;

              (C) consistent  with the trust and restricted character of the
             lands, provisions  satisfactory to the  State and the  Houlton Band
             concerning:

                  (i) payments  by the Houlton  Band in lieu of payment of
                property taxes  on land or  natural resources held in trust  for
                the band, except that the band shall not be deemed to  own or
                use any property for governmental purposes under  the Maine
                Implementing Act;

                  (if) payments of other fees and taxes to the extent imposed
               on the Passamaquoddy Tribe and the Penobscot Nation under
               the  Maine Implementing Act, except that the band shall not
               be deemed to be a governmental  entity under the Maine Im-
               plementing Act or to have the powers of a municipality under
               the Maine Implementing Act;
                 (Hi) securing  performance of obligations  of  the Houlton
               Band arising after the effective date of agreement between the
               State  and the band.1

             (D)  provisions on the location  of these lands.
      Except as set forth in this subsection,  such agreement shall not include
      any other provisions regarding the  enforcement or application  of the
      laws of the State of Maine.  Within one year of October 10, 1980, the
      Secretary is directed to submit to the appropriate commitees of  the
      House of Representatives and the Senate having jurisdiction over Indi-
      an affairs a report on the status of these negotiations.

    (e) Acquisitions contingent  upon agreement  as to Identity of land  or
      natural resources to be sold, purchase price and othei terms of sale;
          condemnation proceedings by Secretary;  other acquisition
            authority barred for benefit of Indians In State of Maine
   Notwithstanding the provisions of sections 257 and 258a of Title 40, the
Secretary may acquire land or natural resources under this section from the
ostensible owner of the land or  natural resources only if the Secretary and
the ostensible owner of the land or natural resources  have agreed upon the
identity of the land or natural resources to  be sold and upon the purchase
price  and other terms of sale.   Subject to  the  agreement required  by the
preceding sentence, the Secretary may institute condemnation proceedings
in order to perfect title, satisfactory to the Attorney General,  in the United
                                 614
thority to acquire lands or natuiai ii... uiio in i' i, i
ans or Indian nations, or tribes, or bands of Indians i.
                                                        ilule ol Maine.
         (f) Expenditures for Tribe, Nation, or Band contingent upon
                  documentary rellnqulshment of claims
  The Secretary may not expend on behalf of  the Passamaquoddy Tribe, the
Penobscot Nation, or the Houlton Band of Maliseet Indians any sums de-
posited in the funds  established pursuant to  the subsections  (a) and  (c) of
this section unless and until he finds that authorized officials of the respec-
tive tribe, nation, or  band have executed appropriate documents relinquish-
ing all claims to the extent provided by sections 1723, 1730, and 1731 of this
title and  by section 6213 of the Maine Implementing Act, including stipula-
tions to the final judicial dismissal with  prejudice of their claims.

   (g) Transfer limitations of section 177 of this  title Inapplicable to Indians In
    State of Maine; restraints on alienation as provided In section;  transfers
         Invalid ab Inltlo  except ton  State and Federal condemnations,
           assignments, leases, sales, rlghts-of-way, and exchanges
   (1) The provisions of section  177 of this  title shall not be applicable tc
(A) the Passamaquoddy Tribe, the Penobscot Nation, or the Houllon Bane
of Maliseet Indians or any other Indian, Indian nation, or tribe or band o
Indians in  the  State  of  Maine, or  (B) any land or natural resources  ownec
by or held in trust for the  Passamaquoddy Tribe, the Penobscot Nation, 01
the Houlton  Band of Maliseet Indians or any other Indian, Indian nation 01
tribe or band of Indians in the .State of Maine.   Except as provided in sub
sections  (d)(4) and (g)(2) of this section, such land or natural resources shal
not otherwise be  subject to any restraint on alienation by  virtue of beinj
held in trust by the United States or the Secretary.
   (2) Except as provided in paragraph (3) of this subsection, any transfer o
land or natural resources within Passamaquoddy Indian Territory or  Penob
scot Indian Territory, except (A) takings for public uses consistent with th
Maine Implementing Act, (B) takings for public uses pursuant to the  laws c
the United States, or (C) transfers of individual Indian use assignments fron
one member of the  Passamaquoddy Tribe or  Penobscot Nation to anothe
member of the same tribe or nation, shall be void ab initio and without an
validity  in law or equity.
   (3) Land or natural  resources within the  Passamaquoddy Indian Terrilc
 ry or the Penobscot Indian Territory or held  in trust for the  benefit of th
 Houlton Band of Maliseet  Indians  may. at the request of the respectiv
 tribe, nation, or band,  be —
       (A) leased in accordance with sections 41S to 413d of this title;
       (B) leased in accordance with sections 396a to 396g of this title;
       (Q sold in accordance with section  407 of this title;
       (D)  subjected to rights-of-way in accordance with sections 323 to 32
     of this  title;
                                   615

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      .. .,,*j U,w nut >.«{uai, me raiuca anaii uc djuniiicu  oy IflC payiP
      money to the grantor or to the Secretary Tor deposit in the land i
      (ion fund Tor  the benefit of ihe affected tribe, nation, or band, u.	.
  '•—•"' circumstances require, so long as payment does not  exceed 25 per cen-
      tum of the total value of the  interests in land to be transferred by the
      tribe, nation, or band;   and
        (F) sold, only if at the time of sale the Secretary has entered into an
      option agreement or contract of sale to purchase other lands of approx-
      imate equal value.

           (h) Agreement on term* for management and administration
                         of land or natural resources
    Land or natural  resources acquired by  the secretary in trust for the Pas-
 samaquoddy Tribe  and the Penobscot Nation shall be managed and admin-
 istered in accordance with terms established by the respective tribe or nation
 and agreed to by the Secretary in accordance with section 450f of this title,
 or other  existing law.

    (I) Condemnation of trust or restricted land or natural resources within res-
        ervations:  substitute land  or monetary proceeds as medium of
        compensation; condemnation of  trust land without Reservations:
        use of compensation for reinvestment  In trust or fee held acreage,
        certification  of acquisitions;  State condemnation proceedings:
        United States as necessary party, exhaustion of State administra-
        tive remedies, Judicial review In Federal courts, removal of action
   (1) Trust or restricted land or natural resources within the Passamaquod-
 dy Indian Reservation or the Penobscot  Indian Reservation may be con-
 demned for public purposes pursuant to the  Maine Implementing Act.  In
 the event  that  the compensation for the taking is  in the form  of substitute
 land  to be added to the reservation, such  land shall become a part  of the
 reservation in accordance with the Maine Implementing Act and upon noti-
 fication to the  Secretary of the  location and boundaries of the substitute
 land.  Such substitute land shall have the same trust or restricted status as
 the land taken.  To the extent that Ihe compensation is in the form  of mon-
 etary proceeds, it shall be deposited  and reinvested  as provided in paragraph
 (2) of this subsection.
   (2) Trust land of the Passamaquoddy Tribe or the Penobscot Nation not
 within the Passamaquoddy Reservation or Penobscot  Reservation  may  be
 condemned for  public purposes pursuant to the Maine Implementing Act.
 The proceeds from  any such  condemnation shall be deposited in the land
 acquisition fund established by  subsection  (c) of this  section and shall  be
 reinvested in acreage within  unorganized or  unincorporated areas of the
State  of Maine.  When  the proceeds are reinvested in land whose  acreage
does not  exceed that of the land taken, all the land  shall  be acquired  in
trust.  When the  proceeds are invested in land  whose acreage exceeds the
acreage of the land taken, the  respective tribe or nation shall designate, with
the approval of the  United States, and within thirty  days of such reinvest-
ment, that portion of the land acquired by  the reinvestment, not to exceed
 the area taken, which shall be acquired in  trust. The  land not acquired  in
                                  616
location, boundaries, and status of the land acquin
  (3) The State of Maine shall have initial jurisdictii.. over condemnati
proceedings brought under this section.  The United States shall be a nee
sary party to any such condemnation proceedings.   After exhaustion of
State administrative remedies, the United States is  authorized to seek ju
cial  review  of  all relevant matters in the  courts of the United States  a
shall have an absolute right  of removal,  at  its discretion, over any acti
commenced in the courts of the State.

            (])  Federal  condemnation under other laws; deposit and
                   reinvestment of compensatory proceeds
   When trust or restricted land or natural resources of the Passamaquoc
Tribe, the Penobscot  Nation, or the Houlton Band of Maliseet Indians
condemned pursuant  to  any  law of the United States other than this  s
chapter, the proceeds paid in compensation for such condemnation shall
deposited and  reinvested in accordance with subsection 0X2) of this secti
(Pub.L. 96-420. $  5, Oct.  10. 1980. 94  Stat.  1788.)
  *So In orifinil.  Probably ihould be tcmtcoton.

                              Historical Note
  References In Text.  Sections 415 to 41 $d
of this title, referred to in tubsec. (gX3XA). in
the original wd "the Act of August 9. 195$
(69 Stat. 339). as amended", which enacted
sections 415 to 41 5d of this title and amended
section 396 of this title.
                                        Letjislstire History. For legislative his
                                       mm) purpose of Pub.L. 96-420. sec 1980
                                       Code Cong, and Adm.News, p. 3786.
                            West's Federal Forms
 Actions by United States or officers thereof, see Jj 1069 to 1072.
 Enforcement and review of decisions and orders of administrative agencies, see $ 851 et
 Jurisdiction and venue in the district courts, matters pertaining to, see §1000 et seq.
  United States «=>II3.
                             Library References
                                       CJ.S. United Stales }} 1)5. 156. 160 ei
  §  1725.    State laws applicable

                (a) Civil and criminal jurisdiction of the State and
                   the courts of the State;  laws ol the State
    Except as provided in section 1727(e) and section 1724(d)(4) of this i
  all Indians, Indian nations, or tribes or bands of Indians in the Stat
  Maine,  other  than  the Passamaquoddy Tribe, the Penobscot Nation,
  their members, and any lands or natural resources owned by any such 1
  an, Indian nation,  tribe or band of Indians and any lands or nature
  sources held in trust by the United States, or by any other person or en
  for any such Indian, Indian nation, tribe, or band of Indians shall  be sul
  to the civil and criminal jurisdiction  of the State, the laws of the  State,
                                    617

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       ,b) Jurisdiction of Slate of Maine and utilization ol local share of funds
   ._  pursuant to the Maine Implementing Act; Federal laws or regulations
           governing services or benefits unaffected unless expressly so
               provided;  report to Congress of comparative Federal
                  and State funding for Maine and other States
     (1) The Passamaquoddy Tribe, the Penobscot Nation, and their members,
  and the land and natural resources owned by, or held in trust Tor the benefit
  of the tribe, nation, or their members, shall be subject to the jurisdiction of
  the State of Maine  to the extent and in the manner provided in the Maine
  Implementing Act and that Act is hereby approved, ratified, and confirmed.
    (2)  Funds appropriated for the benefit of Indian people or for the admin-
  istration of Indian affairs  may be utilized, consistent with the purposes for
  which they are  appropriated, by the Passamaquoddy Tribe and the Penob-
  scot Nation to  provide part  or  all of the local share as provided by  the
  Maine implementing Act.

    (3) Nothing in this section shall be construed to supersede any Federal
  laws or regulations governing  the provision or funding of services or benefits
  to any person or entity in the State of Maine  unless expressly provided by
  this subchapter.

   (4) Not  later than October 30.  1982, the Secretary is directed to submit to
  the appropriate committees of the House of Representatives and the Senate
  having jurisdiction over Indian affairs  a  report on the Federal  and State
  funding provided  the Passamaquoddy Tribe  and  Penobscot  Nation com-
  pared with the respective Federal and  State funding in other  States.

    (c) Federal criminal Jurisdiction Inapplicable In State of Maine under certain
       sections of Title 18; effective date: publication In Federal Register
   The United States  shall not  have any criminal jurisdiction in the State of
 Maine under the provisions of sections 1152, 1153,  1154, 1155, 1156,  1160,
 1161, and  1165 of Title  18. This provision shall not be effective until sixty
 days after the  publication of notice in  the  Federal Register  as required by
 section  I723(d) of this title.

      (d) Capacity  to sue and be sued In State  of Maine and  Federal courts;
       section 1362 of Title 28 applicable to civil actions; Immunity from
       suits provided In Maine Implementing Act; assignment of quarter-
            ly Income payments from settlement fund to judgment
                   creditors for satisfaction of judgments
  (1) The Passamaquoddy Tribe,  the Penobscot Nation, and  the Houlton
 Band of Maliseet Indians, and all members thereof, and all  other Indians,
 Indian nations, or tribes or bands of Indians in the State of Maine may sue
 and be sued in the courts of the State of Maine and the United States to the
 same extent  as any other entity or person residing in the State of Maine may
 sue and be sued in those courts;  and section 1362 of Title 28 shall be appli-
cable to civil actions  brought by the Passamaquoddy Tribe, the Penobscot
Nation, and  the Houlton Band of Maliseet Indians: Provided,  however. That
the Passamaquoddy Tribe, the Penobscot Nation, and their officers and em-
                                 618
  (2)  Notwithstanding the provisions of section 372    ^^
-------
             ....... _. _. „_.,»  w. •moan*,  niuiaii  muds, umiuii fcscrvar
        i country, Indian territory or land held in  trust for Indians, am
        nich affects or preempts  (he civil, criminal, or regulatory jurisdictio.  ^
  I nT State or Maine, including, without limitation, laws or the State relating
  to land use or environmental  matters, shall apply within the State.

        (I) Eligibility for Federal financial benefits;  Federal tax considerations:
                     slmllsr treatment and reservation lands
    As federally recognized Indian tribes, the Passamaquoddy Tribe, the  Pe-
  nobscot Nation, and the Houlton Band of Maliseet Indians shall be eligible
  to receive all or the financial  benefits which the  United States provides to
  Indians, Indian nations, or tribes or bands of Indians to the same extent and
  subject to the  same eligibility  criteria generally applicable to other Indians,
  Indian nations or tribes or  bands  of Indians.  The  Passamaquoddy Tribe,
  the  Penobscot  Nation, and the Houlton Band of Maliseet Indians shall be
  treated in the same manner  as other federally recognized tribes for the pur-
  poses of Federal taxation and any  lands which are  held  by the respective
  tribe,  nation, or band subject to a restriction against alienation or which are
  held in trust for the benefit  of the  respective tribe, nation, or band shall be
  considered Federal Indian reservations for purposes of Federal taxation.
  (Pub.L. 96-420.  § 6. Oct. 10.  1980. 94 Stat. 1793.)
   '$o hi original. Probably ihouM be "othcrwht".

                               Historical Note
  Codification.  "Section 3727 of Title 31"
 was substituted in subset. (dX2). for "section
 3477 of the Revised Statutes, as amended" on
 the authority of Pub.L. 97-258. { 4(b). Sept.
 13. 1982. 96 Slat. 1067. section I of which en-
 acted Title 31, Money and Finance.
                                        Legislative History. For legislative history
                                      and purpose of Pub.L 96-420. see 1980 U.S.
                                      Code Cong, and Adm.News, p. 3786.
                           West's Federal Forms
Jurisdiction and venue in district courts, matters pertaining to, see 5

                            Library References
Indians «=>27(2), 32. 38(2).
C.J.S. Indians jj 8, II, 16 et seq., 67 et seq.,
  79.
                                                          et seq.
§  1726.    Tribal organization
  (a) The Passamaquoddy Tribe, the Penobscot Nation, and the Houlton
Band of Maliseet Indians may  each organize for its common  welfare and
adopt an appropriate instrument in writing to govern the affairs of the tribe,
nation,  or band  when each  is acting in  its governmental capacity.  Such
instrument and any  amendments thereto must be consistent  with the terms
of this subchapter and the Maine  Implementing Act.  The Passamaquoddy
Tribe,  the Penobscot Nation, and the Houlton Band of Maliseet  Indians
shall.each file with the Secretary a copy of its organic governing document
and any amendments thereto.
                                  620
                                                                                        cxicncicu me nuuuuii uanu ui  ivmii><.ik  n.^i..,..., .      ,„	_  ._ .
                                                                                        citizen  of the United States  may be considered  a          of the  Houlx
                                                                                        Band of Maliseets, except persons who, as of Octobc.     .980, are enroll
                                                                                        members on the band's existing  membership roll, and direct lineal  descen
                                                                                        ants if such members.   Membership in the be nd  shall be subject to su<
                                                                                        further qualifications as  may be provided by  the band in its organic go
                                                                                        erning document or amendments thereto subject  to the approval of the S<
                                                                                        retary.
                                                                                        (Pub.L. 96-420. § 7, Oct.  10.  1980, 94 Stat.  1795.)

                                                                                                                     Historical Note

                                                                                          Legislative History.  For legislative history
                                                                                        and purpose of Pub.L. 96-420, see 1980 U.S.
                                                                                        Code Cong, and Adm.Newt, p. 3786.
                                                                                        Indians $=»32.
                            Library References

                                      CJ.S. Indians §} II. 67 et seq.
§  1727.    Implementation of Indian Child Welfare  Act

   (a) Petition for assumption of exclusive (urlsdlctlon; approval by Secretary
  The Passcmaquoddy Tribe or the Penobscot Nation may assume exclus
jurisdiction over Indian child custody proceedings pursuant to the Indi
Child Welfare Act  of 1978 (92 Stat. 3069) (25 U.S.C.A  § 1901  et  set
Before the respective tribe or nation may assume such jurisdiction over In
an child custody proceedings, the  respective tribe or  nation shall present
the Secretary for approval a petition to assume such jurisdiction and i
Secretary shall approve that petition in the manner prescribed by sectii
108(aHc) of said Act [25 U.S.C.A § 1918(»Hc)].

          (b) Consideration and determination of petition by Secretary
   Any  petition to assume jurisdiction over Indian child custody proceedii
by the  Passamaquoddy Tribe or the Penobscot Nation shall be conside
and determined by the Secretary in accordance with  sections 108(b) and
of the Act [25 U.S.C.A. §  1918(b) and (c)].

        (c) Actions or proceedings within existing  Jurisdiction unaffected
   Assumption of jurisdiction under this section shall not  affect any act
or proceeding over  which a court has already  assumed jurisdiction.

              (d) Reservations within section 1903(10) of this title
   For the purposes of this section, the Passamaquoddy  Indian Reservat
and the  Penobscot  Indian Reservation  are "reservations" within sect
4(10) of the Act [25 U.S.C.A. §  1903(10) J.
                                   621

-------
                    Jurltdletlon over child welfare unaffected
      _ the purposes of this section, the Houlton Band of Maliseet Indians is
  an "Indian  tribe" within section 4(8) of the Act [25 U.S.C.A. §  1903(8) ],
  provided, that nothing in this subsection shall alter or effect the jurisdiction
  of the State of Maine over child welfare matters as provided  in section
  I725(e)(2)of this title.

              (f) Asnumptlon determinative of exclusive Jurisdiction
    Until the Passamaquoddy Tribe or the Penobscot Nation has  assumed
  exclusive jurisdiction over the Indian child custody proceedings pursuant to
  this section, the State of Maine shall have exclusive jurisdiction over Indian
  child custody proceedings of that tribe or nation.
  (Pub.L. 96-420, § 8, Oct. 10. 1980. 94 Stat. 1795.)

                               Historical Note
   Reference* In Text.  The Indian Child
 Welfare Act of 1978 (92 Stit. 3069). referred
 to in subsec. (•). it Pub.L. 95-608. Nov. 8,
 1978. 92 Sut.  3069. as amended,  which it
 classified principally to chapter  21  (section
 1901 et teq.) of this title.  For complete clas-
 sification of this Act to the Code see Short
          Title note set out under section 1901 of this
          title and Tables volume.
            Legislative History.  For legislative history
          and purpose of Pub.L. 96-420, see 1980 U.S.
          Code Cong, and Adm.News, p. 3786.
 Indians 27(2).
Library References
          C.J.S. Indians §§ 8, 16 el seq.
 §  1728.    Federal  financial  aid programs unaffected by payments
               under subchapter

    (a) Eligibility of State of Maine for participation without regard to payments
             to designated Tribe, Nation, or Band under subchapter
   No payments to be made for the benefit of the Passamaquoddy Tribe, the
 Penobscot Nation, or the Houlton Band of Maliseet Indians pursuant to the
 terms of this subchapter shall be considered by any agency or department of
 the United States in determining or computing the eligibility of the State of
 Maine for participation in any financial aid  program of the United States.
                                                         «
      (b) Eligibility of designated Tribe, Nation, or Band for benefits without
         regard to payments from State of Maine except In considering
            actual financial situation In determining need of applicant
  The eligibility for or receipt of payments from the State of Maine by the
Passamaquoddy Tribe and the Penobscot  Nation or any of their members
pursuant to the Maine  Implementing Act shall  not be considered by  any
department or agency of the United States in determining the eligibility of
or computing payments to the Passamaquoddy Tribe or the Penobscot Na-
tion or any of their members under any financial aid program of the United
States: Provided.  That to the extent that eligibility for the benefits of such a
financial aid program is dependent  upon a showing of need by the applicant,
                                  622
      (c) Availability of settlement or land acquisition func  _^P .com* or
        resources or otherwise used to affect federally assisted housing
                 programs or Federal financial assistance or
                          other Federal benefits
  The availability of funds or distribution of funds pursuant to section  1724
of this title may not  be considered as income or resources or otherwise uti-
lized  as the basis  (1) for denying any Indian household or member  thereof
participation in any  federally assisted housing  program, (2)  for denying or
reducing the Federal financial assistance or other Federal  benefits to which
such  household or member  would otherwise be entitled, or (3) for denying
or  reducing the Federal financial  assistance or other  Federal benefits  to
which the Passamaquoddy Tribe or Penobscot Nation  would otherwise be
eligible or entitled.
(Pub.L. 96-420. § 9. Oct. 10,  1980, 94 Slat.  1795.)

                               Historical Note
   Legislative History. For legislative history
and purpose of Pub.L 96-420. see 1980 U.S.
Code  Cong, and Adm.News, p. 3786.


 §  1729.    Deferral of capital gains
    For the purpose of subtitle A of Title 26, any transfer by private owners
 of land purchased or otherwise acquired  by the Secretary  with moneys from
 the land  acquisition fund whether in the  name of the United States or of the
 respective tribe, nation or band shall be deemed to be an involuntary con-
 version within the meaning of section 1033 of Title 26.
 (Pub.L. 96-420. § 10, Oct. 10. 1980. 94 Stal.  1796.)

                               Historical Note
    Legislative history.  For legislative history
 and purpose of Pub.L. 96-420, see 1980 U.S.
 Code Cong, and Adm.News, p. 3786.
                                                                                          Library References
                                                              Internal Revenue €=93188.
                                                              §  1730.    Transfer  of tribal trust  funds held  by  the  State  o
                                                                            Maine
                                                                All funds of either the Passamaquoddy Tribe or  the  Penobscot  Natioi
                                                              held in  trust by the State of Maine as of October 10, 1980, shall be Irani
                                                              ferred to the Secretary to be held in trust for the respective tribe or natio
                                                              and shall be added to the principal of the settlement fund allocated  lo (ha
                                                              tribe or nation.  The receipt of said State funds by the Secretary shall cor.
                                                              stitute a full discharge of any claim of the respective tribe or  nation,  it
                                                              predecessors and successors in interest, and its members, may have  ngaim
                                                              the State of Maine, its officers, employees, agents, and representatives, ari<
                                                                                                 623
                                                                                                                                 V,
                                                                                                                                  V

-------
 natif         execute general releases or all  claims against the State  of
 Main,  ^^.icers, employees, agents, and representatives, arising from the
 administration or management of said State funds.
 (Pub.L. 96-420, § 11, Oct. 10, 1980, 94 Slat. 1796.)
                               Historical Note
   Codification.  "October  10. 1980." was
 substituted  for "the effective date  of I hit
 Act".
   Legislative History.  For legislative history
 and purpose of Pub.L. 96-420, see 1980 U.S.
 Code Cong, and Adm.News, p. 3786.
 §  1731.    Other claims discharged by this subchapter
   Except  as expressly  provided herein,  this subchapter shall constitute a
 general discharge and release of all obligations of the State or Maine and all
 of its political subdivisions, agencies, departments, and all of the officers or
 employees thereof arising from any treaty or agreement with, or on behalf of
 any Indian nation, or tribe or band of Indians or the United States as trustee
 therefor, including those actions now pending in the United States District
 Court for  the District of Maine captioned United States  of America against
 State of Maine (Civil Action Nos. 1966-ND and  1969-ND).
 (Pub.L. 96-420, §  12,  Oct. 10. 1980. 94 Stat.  1796.)

                              Historical Note

  Legislative History. For legislative history              *
 and purpose of Pub.L. 96-420. see  1980 U.S.
 Code Cong, and Adm.News.  p. 3786.
§  1732.    Limitation of actions
   Except as provided  in this subchapter, no  provision of this subchapter
shall be construed to constitute a jurisdictional act, to confer jurisdiction to
sue, or to grant implied consent to any Indian, Indian nation, or tribe or
band of Indians to sue the United States or any of its officers with respect to
the claims extinguished by  the operation of this subchapter.
(Pub.L. 96-420, j 13, Oct. 10. 1980, 94 Stat. 1797.)

                             Historical Note

  Legislative History. For legislative history
and purpose of Pub.L. 96-420. see 1980 U.S.
Code Cong, and Adm.News, p. 3786.
                            Library Reference*
United Stales «=» 123(6).
CJ.S. United States {181.
                                   624
  There is hereby authorized to be appropriated  $81,500         the Fiscal
year beginning October I, 1980, for transfer to the funds t       ed by sec-
tion 1724 of this title.
(Pub.L. 96-420, § 14, Oct. 10. 1980, 94 Stat. 1797.)

                              Historical Note
  Legislative History.  For legislative history
and purpose of Pub.L. 96-420. see 1980  U.S.
Code Cong, and Adm.News. p. 3786.


§  1734.    Inseparability of provisions
   In the event that any provision of section 1723 of this title is held invalid,
it is the intent of Congress that the entire subchapter be invalidated.  In the
event that any other section or provision of this subchapter is held invalid, it
is the intent of Congress that the remaining sections of this subchapter shall
continue in full force and effect.
 (Pub.L. 96-420, § 15, Oct. 10, 1980. 94 Stat. 1797.)

                               Historical Note
   Legislative History.  For legislative history
 and purpose of Pub.L. 96-420, see 1980 U.S.
 Code Cong, and Adm.News. p. 3786.
                  *

 §  1735.   Construction

                     (a) Law governing;  apeclal legislation
    In the event a  conflict of interpretation  between  the provisions of the
 Maine Implementing Act and this subchapter should emerge, the provisions
 of this subchapter shall govern.

                             (b) Qeneral legislation
    The provisions of any Federal law enacted after October 10, 1980, for the
  benefit  of Indians,  Indian nations,  or tribes  or  bands of  Indians, which
  would affect or preempt the  application of the laws of the State of Maine,
  including application of the laws of the State to lands owned by or held in
  trust for Indians, or Indian nations,  tribes, or bands of Indians, as provided
  in this subchapter and the Maine Implementing Act, shall not apply within
  the State of Maine, unless such provision of such subsequently enacted Fed-
  eral law is specifically made  applicable within  the State of Maine.
  (Pub.L. 96-420, 5 16. Oct. 10.  1980, 94 Stat. 1797.)

                                Historical Note
    Legislative History.  For legislative history
  and purpose of Pub.L. 96-420. see 1980 U.S.
  Code Cong, and Adm.News, p. 3786.
                                      625

-------
Sec.
1701.
1702.
1703.
1704.
1705.
1706.
1707.
1708.
1709.
1710.
1711.
1712.
1715.
1716.
           CHAPTER 19—INDIAN CLAIMS SETTLE-
                     MENTS WITH STATES

          SUBCHAPTER I—RHODE ISLAND INDIAN
                     CLAIMS SETTLEMENT

                   PART A—GENERAL PROVISIONS
Congressional findings and declaration of policy.
Definitions.
Rhode Island Indian Claims Settlement Fund; establishment.
Option agreements to purchase private settlement lands.
   (a)  Acceptance of option agreement assignments; reasonableness
       of terms and conditions.
   (b)  Amount of payment.
   (c)  Limitation on option fees.
   (d)  Application of option fee.
   (e)  Retention of option payment.
Publication of findings;  approval of prior transfers and extinguish-
   ment of claims and aboriginal title involving Narraganselt Tribe
   and town of Charlestown,  Rhode Island.
Findings by Secretary.
Purchase and transfer of private settlement lands.
   (a)  Determination by Secretary; assignment of settlement lands
      to State Corporation.
   (b) Moneys remaining in fund.
   (c) Duties and liabilities of United States upon discharge of Sec-
      retary's duties; restriction on conveyance of settlement lands;
      affect on easements for public or private purposes.
Applicability of State law.
Preservation of Federal benefits.
Authorization of appropriations.
Limitation of actions; jurisdiction.
Approval of prior transfers  and extinguishment of claims and ab-
  original title outside town of Charlestown, Rhode Island and in-
   volving other Indians in Rhode Island.

               PART B—TAX TREATMENT
Exemption from taxation.
  (a) General exemption.
   (b) Income-producing activities.
   (c) Payments in lieu of taxes.
Deferral of cupiuil gains.
                         594
                                                                              SUBCHAPTER II-MAINE INDIAN  CLAIMS
                                                                                                                                L.EMENV
                                                                       Sec.
                                                                       1721.
                                                                       1722.
                                                                       1723.
                                                                               1724.
Congressional findings and declaration of policy.
Definitions.
Approval of prior transfers and extinguishment of Indian title and
  claims of Indians within State of Maine.
  (a)  Ratification by Congress; personal claims unaffected; United
       States barred from asserting claims on ground of noncompli-
       ance of transfers with State laws or occurring  prior to De-
       cember 1, 1873.
   (b)  Aboriginal title extinguished as of date of transfer.
   (c)  Claims extinguished as of date of transfer.
   (d)  Effective date;  authorization  of  appropriations;  publication
       in Federal Register.
 Maine Indian Claims Settlement and Land Acquisition Funds in the
   United States Treasury.
   (a)  Establishment  of  Maine  Indian Claims Settlement  Fund;
        amount.
   (b)  Apportionment of settlement fund;  administration;  invest-
        ments;   limitation  on distributions;  quarterly  investment in-
        come payments; expenditures for aged members; cessation of
        trust responsibility following Federal payments.
    (c)  Establishment of  Maine Indian Claims Land Acquisition
        Fund;  amount.
    (d) Apportionment of land acquisition fund; expenditures for ac-
        quisition of land  or  natural resources;  trust  acreage;  fee
        holdings;  interests in corpus of trust  for Houlton Band  fol-
         lowing  termination of Band's interest in trust; agreement for
         acquisitions for benefit of Houlton Band:  scope, report to
         Congress.
     (e)  Acquisitions contingent upon agreement as to identity of land
         or natural  resources to be sold,  purchase  price  and other
         terms of sale; condemnation proceedings by Secretary; other
         acquisition authority barred for benefit of Indians in State ol
         Maine.
     (0  Expenditures for Tribe.  Nation,  or  Band  contingent  upor
         documentary relinquishment of claims.
     (g) Transfer limitations of section  177 of this title inapplicable t<
          Indians in State of Maine;  restraints on alienation as provid
          ed in section; transfers invalid ab initio except for: State an.
          Federal  condemnations,  assignments, leases, sales,  rights-ol
          way, and exchanges.
      (h)  Agreement on terms for management and  administration c
          land or natural  resources.
                              595

-------
         -mine inuinii v,iaiui3 Dciuciticm anu i^anu Avcqimiiiun runus in inr
          United Stales Treasury—Continued
      ._  (i)   Condemnation of trust or restricted land or natural resources
               within Reservations: substitute land or monetary proceeds as
               medium of compensation;  condemnation of trust land with-
               out Reservations:  use of compensation  for reinvestment in
               trust or fee  held  acreage, certification of acquisitions; State
               condemnation proceedings:  United States as necessary party,
               exhaustion of State administrative remedies, judicial review in
               Federal courts,  removal of action.
          (j)   Federal condemnation under other laws;  deposit  and rein*
               vestment of  compensatory proceeds.
 1725.   State laws applicable.
          (a)  Civil and criminal jurisdiction of the  State and the courts of
              the State;  laws  of the State.
          (b)  Jurisdiction of State of Maine and utilization of local share of
              funds  pursuant  to the Maine Implementing Act;  Federal
              laws or regulations governing services or benefits unaffected
              unless expressly  so provided; report to Congress of compara-
              tive Federal  and State funding for Maine and other States.
          (c)  Federal criminal jurisdiction inapplicable in State  of Maine
              under certain sections of Title 18;  effective date:  publication
              in Federal Register.
          (d)  Capacity to sue  and be sued in  State of Maine and 'Federal
              courts;  section  1362 of Title 28 applicable to civil actions;
              immunity from  suits provided in Maine Implementing Act;
              assignment of quarterly income  payments  from settlement
              fund to judgment  creditors for satisfaction of judgments.
         (e)  Federal consent  for amendment of Maine Implementing Act;
              nature and scope of amendments; agreement respecting State
             jurisdiction over Houlton Band Lands.
         (0   Indian jurisdiction separate and distinct from State civil and
              criminal jurisdiction.
         (g)  Full faith and credit.
         (h)  General laws  and regulations affecting  Indians applicable,  but
             special laws and regulations  inapplicable, in State of Maine.
         (i)  Eligibility for Federal financial benefits; Federal tax consid-
             erations: similar treatment and reservation lands.
1726.  Tribal organization.
1727.  Implementation of Indian Child Welfare Act.
         (a)  Petition for assumption of exclusive jurisdiction;  approval by
             Secretary.
         (b)  Consideration and  determination of petition by Secretary.
         (c)  Actions or proceedings  within existing jurisdiction unaffect-
             ed.
                                 596
 . _ . ,   - - - r
         (d)  Reservations within section 1903(10) of ti
         (e)  Indian tribe within section 1903(8) of this ... .,  State juris-
             diction over child welfare  unaffected.
         (0  Assumption determinative of exclusive jurisdiction.
1728.   Federal  financial  aid programs unaffected by payments under sub-
         chapter.
         (a)  Eligibility  of State of Maine for participation without regard
             to payments to designated Tribe, Nation, or Band under sub-
             chapter.
         (b)  Eligibility  of designated Tribe, Nation, or Band for benefits
             without  regard  to payments from State of Maine except  in
             considering actual financial situation  in determining need  of
             applicant.
         (c)  Availability of  settlement or  land acquisition funds not in-
             come or resources or otherwise used to affect  federally assist-
             ed housing programs or Federal finanical assistance or other
              Federal benefits.
 1729.  Deferral of capital gains.
 1730.  Transfer of tribal trust funds held by-the State of Maine.
 1731.  Other claims discharged by this subchapter.
 1732.  Limitation of actions.
 1733.  Authorization of appropriations.
 1734.  Inseparabililty of provisions.
 1735.  Construction.
          (a)   Law governing;  special  legislation.
          (b)   General legislation.

           SUBCHAPTER  I—RHODE  ISLAND INDIAN
                      CLAIMS SETTLEMENT

                     PART A—GENERAL PROVISIONS
 §  1701.    Congressional findings and declaration of policy
   Congress finds and declares that—
        (a)  there are pending before the United States District Court  for the
      District of Rhode Island two consolidated actions that involve  Indian
      claims to certain public and private  lands within the town of Charles-
      town, Rhode Island;
        (b)  the  pendency of these lawsuits has resulted in severe economic
      hardships for the residents of the town of Charlestown by clouding the
      titles to much of the land in the town, including lands not involved in
      the lawsuits;
                                   597

-------
             n  «wt itu * •- > .'ire to remove an ciouai on lines resulting irom
              ian land claims  within the State of Rhode Island;  and
       (dr-tne parties to the lawsuits and others interested in the settlement
     or Indian land claims within the State of Rhode Island have executed a
     Settlement  Agreement which requires  implementing legislation by  the
     Congress of the United States and the legislature of the State of Rhode
     Island.
(Pub.L. 95-395. § 2. Sept. 30, 1978. 92 Slat. 813.)

                             Historical  Note
  Short Title.  Section I  of Pub.L. 95-395
provided: "That this Act [which enicted this
subchapter] may be cited  as the 'Rhode Is-
land Indian Claims Settlement Act'."
  For short title of Pub.L. 96-420 which en-
acted subchapter  II  of this chapter as the
Maine Indian Claims Settlement Act of 1980,
          see section I of Pub.L. 96-420, set out as a
          Short Title note under section 1721 of this ti-
          tle.
            Legislative History.  For legislative history
          and purpose of Pub.L. 95-391, see 1978 U.S.
          Code Cong, and Adm.News, p. 1948.
United Slates Qa 105.
Library References
         C.J.S. United Slates §§ 143, 155.
§  1702.    Definitions
  For the purposes of this subchapter, the term—
      (a) "Indian Corporation" means the Rhode Island  nonbusiness cor-
    poration known as the "Narragansett Tribe of Indians";
      (b) "land or natural resources" means any real property or natural
    resources, or any interest in or right involving any real property or nat-
    ural resource, including but not limited to, minerals and  mineral rights,
    timber and  timber rights,  water  and water rights, and  rights to hunt
    and  Ash;
      (c) "lawsuits" means the actions entitled "Narragansett Tribe  of In-
    dians v.  Southern Rhode Island  Land  Development Co., et  al., C.A.
    No.  75-0006 (D.R.I.)" and "Narragansett  Tribe  of Indians v.  Rhode
    Island Director of Environmental  Management, C.A. No.  75-0005
    (D.R.I.)";
      (d) "private settlement  lands"  means  approximately  nine  hundred
    acres of privately held  land outlined in red in the map marked "Exhibit
    A" attached to the Settlement  Agreement  that are to be acquired by the
    Secretary  from certain private landowners  pursuant  to sections  1704
    and  1707  of this title;
      (e) "public settlement lands" means the lands described in paragraph
    2 of the Settlement Agreement that are to be conveyed by the State of
    Rhode Island to  the State Corporation pursuant  to legislation  as de-
    scribed in section 1706 of this title;
      (0 "settlement  lands" means those lands defined in subsections (d)
    and (e) of this section;
                                  598
      (h)  "settlement  agreement
    Memorandum of Understanding Concerning Settlemei       ie '
    Island Indian Land Claims", executed as of February 2b, .,/8, by rep-
    resentatives of the State of Rhode Island, of the town of Charlestown,
    and of the parties  to the lawsuits, as filed with the  Secretary of the
    State of Rhode Island;
      (I) "State Corporation" means the corporation created or to be creat-
    ed by legislation enacted by the State of Rhode Island as described in
    section  1706 of this title; and
      (J)  "transfer" includes but  is not limited to  any  sale, grant, lease,
    allotment,  partition,  or conveyance, any transaction the purpose of
    which was to effect a sale, grant, lease, allotment, partition, or convey-
    ance, or any event or events that  resulted in a change of possession or
    control of land or natural resources.
(Pub.L. 95-395, §  3, Sept. 30. 1978. 92 Slat. 813.)

                             Historical Note
  Legislative History.  For legislative history
and purpose of Pub.L. 95-395, see 1978 U.S.
Code Cong, and Adm.News, p. 1948.

§  1703.    Rhode Island Indian  Claims Settlement  Fund; estab-
              lishment
                   *
   There is hereby established in  the  United States Treasury a  fund to be
known as the Rhode Island Indian  Claims  Settlement  Fund  into which
$3,500,000 shall be deposited following the appropriation authorized by sec-
tion  1710 of this title.
(Pub.L. 95-395, § 4. Sept.  30. 1978. 92 Slat. 814.)

                              Historical Note
   Legislative History,  For legislative  history
 and purpose of Pub.L. 95-395. see 1978 U.S.
 Code Cong, and Adm.News, p. 1948.

 § 1704.    Option agreements to purchase private settlement lands

        (a) Acceptance of option  agreement assignments; reasonableness
                           of terms and conditions
    The Secretary  shall accept assignment of reasonable  two-year  option
 agreements negotiated by the Governor of the State of Rhode Island or his
 designee for the purchase of the private settlement  lands: Provided. That the
 terms and conditions specified in such options are reasonable and that the
 total price for the acquisition  of such lands,  including  reasonable costs of
 acquisition, will not exceed the amount specified in section 1703 of this title.
  If the Secretary does not determine  that any such option agreement  is un-
  reasonable within sixty days of its submission, the Secretary will be deemed
  to have  accepted  the assignment  of the option.
                                    599

-------
                          (b) Amount of payment
            for any option entered  into pursuant to subsection (a) of this
 section-mall be in the amount of 5  per centum of the fair market value of
 the land  or natural resources as of  the date of the agreement and shall  be
 paid from the fund established by section 1703 or this title.

                        (c) Limitation on option lees
   The total amount of the option fees paid pursuant to subsection (b) of (his
 section shall not exceed SI75,000.

                        (d) Application ot option fee
   The option fee  for each option agreement shall be applied to the agreed
 purchase  price in  the agreement  if the  purchase of the defendant's land  or
 natural resources  is completed in accordance with the terms of the option
 agreement.

                      (e) Retention of option payment
   The payment for each option may be retained by the party granting the
 option if the property transfer contemplated by the option agreement is not
 completed in accordance with the terms of the option agreement.
 (Pub.L. 95-395, § 5. Sept. 30, 1978, 92  Slat. 814.)

                             Historical Note
  Legislative History.   For legislative history
 and purpose of Pub.L. 95-395, see 1978 U.S.
 Code Cong, ind Adm.Newi, p. 1948.

                           Library  References
 Indians «=>IO.                          C.J.S. Indians §}  19, 28 et seq. .


 §   1705.    Publication of findings; approval of prior transfers and
              extinguishment of claims  and aboriginal  title involving
              Narragansett Tribe and town of Charlestown, Rhode Is-
              land
  (a) If the Secretary finds that the  State of Rhode Island has satisfied the
conditions set forth in section  1706 of this title, he shall publish such find-
ings in the Federal Register and upon  such publication—
      (1) any transfer of land or natural resources located anywhere within
     the United States from, by, or on  behalf of the Indian Corporation  or
     any other entity presently or at any time in the past known  as the Nar-
     ragansett Tribe of Indians, or any predecessor or successor in interest,
     member  or stockholder thereof,  and any transfer  of land or natural re-
     sources located anywhere within the town of Charlestown. Rhode Is-
     land,  by, from, or on  behalf of  any Indian,  Indian nation, or tribe  of
     Indians,  including but not limited to a transfer pursuant to any statute
     of any State, shall be deemed to  have been made in accordance with the
     Constitution and all laws of the United States that are specifically ap-
                                 600
    of any Indian, Indian nation or tribe of Indians (inclur*      'it not lim-
    ited to the Trade and Intercourse Act of 1790, Act of.       , 1790, ch.
    33, sec. 4, 1 Stat. 137,  and all amendments thereto anu   .< subsequent
    versions thereof), and Congress does hereby approve any such  transfer
    effective as of the date of said transfer;

      (2) to the extent that any transfer of land or natural resources de-
    scribed in subsection (a) of this  section may involve land or natural
    resources to which the  Indian Corporation or any other entity presently
    or at any time in the past known as the Narragansett Tribe of Indians,
    or any predecessor or successor in interest, member or stockholder
    thereof, or any other  Indian, Indian nation, or tribe of Indians, had
    aboriginal title, subsection (a) of this  section shall be regarded as an
    extinguishment of such aboriginal title as  of the date of said  transfer;
    and

      (3) by virtue of the approval of a transfer  of land  or natural re-
    sources effected by this section, or an extinguishment of aboriginal title
    effected thereby, all claims against  the United States, any State or sub-
    division thereof, or any other person or entity, by the Indian Corpora-
    tion or any other entity presently or at any time in the past known as
    the Narragansett Tribe of Indians, or any predecessor or successor in
    interest,  member or stockholder thereof, or any other  Indian,  Indian
    nation, or tribe of Indians, arising subsequent to the transfer and based
    upon any interest  in or right involving such land or natural resources
    (including but'not limited to claims for trespass damages or claims for
    use and occupancy) shall be regarded as extinguished as of the date of
    the transfer.

  (b)  Any Indian, Indian nation, or tribe of Indians (other than the Indian
Corporation or any other entity presently or at any time  in  the past known
as the Narragansett Tribe of Indians,  or  any  predecessor or successor  in
interest, member  or stockholder thereof) whose transfer of  land or natural
resources was  approved or  whose  aboriginal  title  or claims were  extin-
guished by subsection  (a) of this section may, within a period of  one hun-
dred and eighty days after publication  of the  Secretary's findings  pursuant
to this section, bring an action against the State Corporation in lieu of an
action against any other person against whom a cause may have existed  in
the absence of this section.  In any such action, the remedy shall be limited
to a right of possession of the settlement lands.

(Pub.L. 9S-39S,  §  6, Sept. 30, 1978, 92 Stat. 815.)
                             Historical Note

  References In Text The Trade and Inter-    Legislative History.  For legislative history
course Act of 1790. Act of July 22. 1790. ch.   and purpose of Pub.L. 95-395. see 1978 U.S.
33. sec. 4. I  Stat. 137, referred to in subsec.   Code Cong, and Adm.News, p. 1948.
(aKU. i> not classified to the Code.

                                   601

-------
 Indii
C.J.S. Indians §§ 19. 28 el seq.
 §  1706.    Findings by Secretary
   Section 1705 of this  title shall not lake effect until the Secretary  finds—
        (a) thai the Stale of Rhode Island has enacted legislation creating or
      authorizing the creation of a State chartered corporation satisfying the
      following criteria:
            (1) the  corporation  shall be authorized to acquire, perpetually
          manage, and hold the settlement lands;
            (2) the corporation shall be controlled by a board of directors,
          the majority of the members of which shall be selected by the Indi-
          an  Corporation or its successor, and the remaining members of
          which shall be selected by the State of Rhode Island; and
            (3) the corporation shall be authorized, after  consultation with
          appropriate State officials, (o establish  its own regulations concern-
          ing hunting and  Ashing on the settlement lands, which need not
          comply  with regulations of the Stale  of Rhode  Island  but  which
          shall establish  minimum standards for the safety  of persons and
          protection of wildlife and fish stock;  and
        (b) that State of Rhode Island has enacted legislation  authorizing the
     conveyance to the State Corporation of land and natural resources thai
     substantially conform  lo the public settlement lands as described in par-
     agraph  2 of the Settlement Agreement.
 (Pub.L. 95-395, § 7. Sepl. 30. 1978. 92 Slat. 816.)

                              Historical Note
  Legislative History.  For legislative history
 and purpose of Pub.L. 9S-39S. see 1978 U.S.
 Code Cong, and Adm.News.  p. 1948.


 §  1707.     Purchase and  transfer of private settlement lands

           (a) Determination by Secretary; assignment ot settlement
                         lands to State Corporation
  When the  Secretary determines that the State  Corporation described  in
 section 1706(a) of this title has been created  and will accept the settlement
 lands, the Secretary  shall exercise within sixty days the options entered into
 pursuant to section 1704 of this title and assign the private settlement lands
 thereby purchased to the State Corporation.
                                                                      V
                        (b) Moneys remaining In fund
  Any moneys remaining in the fund established by section 1703 of this title
after  the purchase described in  subsection (a) of this section shall  be re-
turned to the general Treasury of the United States.
                                  602
       duties; restriction on convey»nct ot settlemsnl i»nci«, «n<
                  easements lor public or private purposes
  Upon the discharge of the Secretary's duties under sections I /O4,  1705,
1706, and 1707 of this title, the United States shall have  no further duties or
liabilities under this subchapter with respect to the Indian Corporation or its
successor, the State Corporation, or the settlement lands: Provided,  however.
That if the Secretary  subsequently acknowledges the existence of the Narra-
gansett Tribe of Indians, then the settlement lands may not be sold, granted,
or otherwise conveyed or leased to anyone other than the Indian Corpora-
tion, and no such disposition of the settlement lands shall be of any validity
in law or equity, unless the same is approved by the Secretary pursuant to
regulations adopted by him for that purpose:  Provided,  however.  That noth-
ing in this subchapter shall affect or otherwise impair the ability of the State
Corporation to grant or otherwise convey (including any involuntary con-
veyance by means of eminent domain  or condemnation proceedings) any
easement for  public or private purposes pursuant to the laws of the State of
Rhode Island.
(Pub.L. 95-395, §  8, Sept. 30. 1978. 92 Stat.  816.)

                              Historical Note
   Legislative History. For legislative history
 and purpose of Pub.L. 95-395. see 1978 U.S.
 Code Cong, and Adm.News, p. 1948.
                                               Indians 10.
                                                                           Library References
                                                                                     C.J.S. Indians {§ 19, 28 et seq.
                                               §  1708.    Applicability of State law
                                               •   Except as  otherwise  provided in this subchapter, the settlement  lands
                                               shall be subject to the civil and criminal laws and jurisdiction of the State of
                                               Rhode Island.
                                               (Pub.L. 95-395. § 9. Sept. 30. 1978. 92 Stat. 817.)

                                                                             Historical  Note
                                                  Legislative History.   For legislative history
                                                and purpose of Pub.L. 95-395. see 1978 U.S.
                                                Code Cong, and Adm.News. p. 1948.
                                                                            Library References
                                                Indians «=»27(2), 32, 38(2).
                                       CJ.S. Indians 5§ 8, 16 el teq.. 17, 67 el seq..
                                         79.
                                                §  1709.    Preservation of Federal benefits
                                                   Nothing contained in this subchapter or in any legislation enacted by the
                                                State of Rhode Island as described in section 1706 of this title shall affect or
                                                otherwise impair in any adverse manner any benefits received by the State of
                                                Rhode  Island under the Federal Aid in Wildlife Restoration Act of Septem-
                                                                                   603

-------
            -395, § 10. Sept. 30, 1978, 92 Slat. 817.)
                                 Historical Note
    Reference* In Teil.  The Federal Aid  In
   Wildlife Restoration Act of September  2,
   1937. referred lo in text, it Act Sept. 2, 1937,
   e. 899, JO Stal. 917, as amended, which  is
   classified generally to chapter 3B (section 669
   el «eq.) of Title 16, Conservation.  For com-
   plete classification of this Act to the Code,
   see Short Title note set out under section 669
   of Title 16 and Tables volume.
   The Federal Aid in Fish Restoration Act of
  August  9, 1950, referred to  in text,  Is  Act
Aug.  9,  1950, c.  658,  64  Slat.  4)0. ai
amended, which is classified generally to
chapter IOB (section 777 el seq.) of Title 16.
Conservation.  For complete classification of
this Act lo the Code, see Short Title note set
out under section 777 of Title 16 and Tables
volume.
  Legislative History.  For legislative history
and purpose of Pub.L. 95-393, tee 1978 U.S.
Code Cong, and Adm.News, p. 1948.
  §  1710.    Authorization of appropriations

    There is hereby authorized to be appropriated $3,500,000 to carry out the
  purposes of this subchapter.

  (Pub.L. 95-395, §  II, Sept. 30, 1978, 92 Stat. 817.)


                                Historical Note

   Legislative History. For legislative history
 and purpose of Pub.L. 95-395. see  1978 U.S.
 Code Cong, and Adm.News, p. 1948.
 §  1711.    Limitation of actions; jurisdiction

   Notwithstanding  any other provision of law, any action to contest the
 constitutionality of  this subchapter shall be barred unless the complaint is
 Hied within one hundred and eighty days of September 30, 1978.  Exclusive
 jurisdiction  over any such action is hereby vested in the United States Dis-
 trict  Court  for the District of Rhode Island.
 (Pub.L. 95-395, §  12. Sept. 30.  1978. 92 Slat. 817.)


                               Historical Note

  Legislative History.  For legislative history
 and purpose of Pub.L. 95-395, see 1978 U.S.
 Code Cong, and Adm.News. p. 1948.


                           West's Federal Forms
Affirmative defenses, statute of limitations, see $ 2109 et seq.
Jurisdiction and venue  in the district courts, matters pertaining lo, see $ 1000 et seq.
                            Library References
Federal Courts !95.
                                      CJ.S. Federal Courts § 30.
                                   604
               claims and aboriginal title outside tow      harlestown,
               Rhode Island and involving other Indi      . Rhode Is*
               land

  (a) Except  as  provided in subsection  (b) of thi. section—

       (1)  any transfer of land or natural resources located anywhere within
     the State of Rhode Island outside the town of Charlestown from, by, or
     on behalf of any Indian, Indian nation, or tribe of Indians (other than
     transfers included in and approved  by section 1705 of this title), includ-
     ing but not limited to a transfer pursuant  lo any statute of any State,
     shall be deemed to have been made in accordance with the Constitution
     and all laws  of the United States that are specifically applicable to
     transfers of land or natural resources  from, by,  or on behalf of any
     Indian, Indian nation, or tribe of Indians (including but not limited to
     the Trade and Intercourse Act of 1790, Act of July 22, 1790 (ch.  33, 1
     Stat.  137),  and all amendments thereto and  all subsequent  versions
     thereof), and Congress does hereby approve any such transfer effective
     as of  the date of said transfer;

       (2)  to  the extent that any transfer of land or natural resources de-
     scribed in paragraph (I) may involve land or natural resources to which
     such Indian, Indian nation,  or tribe of Indians had aboriginal title, par-
     agraph (1) shall be regarded as an extinguishment of such aboriginal
     title as of the date of said transfer; and
                 *        i
       (3)  by virtue of the approval of  such transfers of land or natural re-
     sources effected by this subsection  or an extinguishment of aboriginal
     title effected thereby,  all claims against the United States, any State or
     subdivision  thereof, or any other person or entity, by any such Indian,
     Indian nation, or tribe of Indians, arising subsequent to the transfer and
     based upon any interest  in or ri|hts involving such land or natural re-
     sources (including but  not  limited to claims for trespass  damages or
     claims for use and occupancy), shall be regarded  as extinguished  as of
     the date  of the transfer.

  (b) This section  shall not apply to any claim, right, or title of any Indian,
Indian nation, or tribe of Indians that is asserted in an  action commenced in
a court of competent jurisdiction within  one hundred and eighty days of
September 30, 1978: Provided. That the plaintiff in any such  action shall
cause notice of the action to be served upon the Secretary and the Governor
of the State of Rhode Island.
(Pub.L. 95-395. § 13. Sept. 30. 1978, 92 Stat. 817.)
                                                                                 Historical Note
                                                    References In Text.  The Trade and Inter-
                                                  course Act of 1790, Act of July 22. 1790 (ch.
                                                  33. I Slat. 137). referred to in subsec. (aXI).
                                                  is not classified lo the Code.
                                         Legislative History. For legislative history
                                       and purpose of Pub.L 93-395. see 1978 US
                                       Code Cong, and Adm.News. p. 1948.
                                                                                                                              605

-------
                                     C.J.S. Indians §§ 19, 28 el seq.

                      PART B—TAX TREATMENT
                                                  Internal Revenue .1I88.

                                                   SUBCHAPTER II—MAINE INDIAN CLAIMS SETTLEMENT
§  1715.    Exemption from  taxation
                          (a) General exemption
   Except as otherwise provided in subsections (b) and (c) of this section, the
settlement  lands received by the State Corporation  shall not be subject to
any form of Federal, State, or local taxation white held by the State Corpo-
ration.
                                      «
                      (b) Income-producing activities
   The exemption provided in subsection (a) of this section shall not apply to
any income-producing activities occurring  on the settlement lands.

            '  " 	"(€)* Payments In lieu of taxes
   Nothing in  this subchapter shall prevent the making of payments in lieu
of taxes  by the State  Corporation for services provided in connection with
the settlement lands.
(Pub.L. 95-395. Title II, §  201, as added Pub.L. 96-601,  §  5(a). Dec. 24, 1980, 94
Slat. 3498.)

                             Historical Note
  Effective Due.  Section S(b) of Pub.L.     Legislative History.  For legislative history
96-601  provided that:  "The amendment  and purpose of Pub.L. 96-601, tee I9SO U.S.
made by subsection (a) (enacting this  pan)  Code Cong, and Adm.Newi, p. 72IS.
shall take effect on September 30, 1978."   <
Taxation «=>I81.
Library References
         CJ.S. Taxation §{ 212, 258.
§  1716.    Deferral of capital gains
  For purposes of Title 26, any  sale or disposition of private settlement
lands pursuant to the terms and conditions of the settlement agreement shall
be treated as an involuntary conversion within the meaning of section 1033
of Title 26.
(Pub.L. 95-395. Title II. § 202. as added Pub.L. 96-601,  $ 5(a), Dec. 24, 1980, 94
Stat.  3499.)

                             Historical Note
  Effective Date.  Section effective Sept. 30,     Legislative History.  For legislative history
1978. see section 5(b) of Pub.L. 96-601, set   and purpose of Pub.L. 96-601, see 1980 U.S.
out as an Effective Date note under section   Code Cong, and  Adm.News. p. 7218.
1715 of this title.

                                  606
\  1721.    Congressional  findings and declaration of policy

 (a)  Congress hereby finds and declares that:
      (1) The Passamaquoddy Tribe, the Penobscot Nation, and the Mal-
   iseet Tribe are asserting claims for possession of lands within the State
   of Maine and for damages on the ground that the lands in  question
   were originally transferred in violation of law, including, but without
   limitation, the Trade and Intercourse Act of 1790 (1 Stat. 137), or sub-
   sequent reenactments or  versions thereof.
      (2)  The Indians,  Indian  nations,  and  tribes and bands of Indians,
    other than the Passamaquoddy  Tribe, the PenobbCOt Nation, and the
    Houlton Band of Maliseet Indians, that once may have held aboriginal
    title  to lands within the  Slate of Maine  long ago abandoned their ab-
    original holdings.
       (3) The Penobscot Nation, as  represented as of the time of passage of
    this  subchapler by the  Penobscot  Nation's Governor  and Council, is
    the sole successor in interest to the aboriginal entity generally known as
    the Penobscot Nation which years ago claimed aboriginal title to cer-
    tain lands in  the State of Maine.
       (4)  The Passamaquoddy Tribe, as represented as of the time of pas-
     sage  of this subchapter  by the Joint Tribal Council of the Passama-
     quoddy Tribe, is the sole successor in interest to  the aboriginal  entity
     generally known as the Passamaquoddy Tribe which years ugo claimed
     aboriginal title to certain lands in the State of Maine.
       (5) The Houlton Band of Maliseet Indians, as represented as  of the
     time of passage of this subchapter by the Houlton Band Council, is the
     sole  successor in interest, as to lands within  the United States,  to the
     aboriginal entity generally known as the Maliseet Tribe which years ago
     claimed aboriginal  title  to certain lands in the State of Maine.
       (6) Substantial economic and  social  hardship to a large number of
      land  owners, citizens,  and communities in  the  State  of Maine, and
      therefore to the economy of the State of Maine as a whole, will result if
      the aforementioned claims are not resolved promptly.
        (7) This subchapter represents a good faith effort on the part of Con-
      gress to provide the Passamaquoddy Tribe, the Penobscot Nation, and
      the Houlton Band of Maliseet  Indians with a fair and just settlement of
      their land claims.   In  the absence of congressional  action, these land
      claims would  be  pursued  through the courts, a process which in all
      likelihood would  consume  many years and  thereby  promote hostility
      and  uncertainty in the  State of Maine  to the ultimate detriment of the
      Passamaquoddy Tribe, the  Penobscot Nation,  the  Houlton  Band of
                                   607

-------
         (d)  Savings provision.
         (e)  Effective dste;  notice.
   17M.  Mashantueket Pequot Settlement Fund.
         (*)  Establishment and administration.
         (b)  Expending of Fund;  private settle-
              ment  landi;   economic  develop-
              ment pUn; acquisition of Und *nd
              natural resource*.
         (e) Transfer of private settlement land
              aa In voluntary conversion.
         (d) Documentation of reUnqulihment of
              tribal claima.
         (e) Authoriiatlon of appropriation.
  1755.   Slit* Jurisdiction over reservation.
  1766.   Practice and procedure,
         (a) Constitutionality.
         0>) Jurisdiction.
         (e)  Removal of action*.
         (d) Jurlsdldlonal acts; Implied consent
             to rat the United State*.
  1767.   Restriction against alienation.
  1768.   Extension of  Federal recognition and
          privileges.
        (a) Applicability of United State* laws
             and regulations.
        (b) Filing of  organic  governing  docu-
             . ment and  Amendments.
        (e) Eligibility for services and benefit*.
 1769.   General discharge and release of State of
          Connecticut
 1760.   Separability of provision*.
    SUBCHAPTER V—MASSACHUSETTS
          INDIAN LAND CLAIMS
               SETTLEMENT

 1771.   Congressional findings and  declaration
          of policy.
 1771V  Gay Head  Indian  claims  settlement
          fund.
 1771b.  Approval of prior transfer* and extin-
          guishment  of aboriginal title  and
          elalmi of Cay Head Indiana.
 1771c.  Conditions  precedent to Federal pur-
          chase of settlement lands.
 177ld.  Purchase and  transfer of  settlement
          lands.
 ITTie.  Jurisdiction over settlement lands; re-
          straint on alienation.
 I771f.   Definitions.
 1771g.  Applicability of State law.
 1771H.  Limitations of action; jurisdiction.
 1771i.   Eligibility.

   SUBCHAPTER VI—FLORIDA INDIAN
       (SEMINOLB) LAND CLAIMS
              SETTLEMENT
1772.    Findings and policy.
1772a.   Definitions.
1772b.   Findings by the Secretary.
I772c.   A|i)irovml of prior transfer* and extin-
         guishment  of claims and aboriginal
         title Involving Florida Indiana.
1772d.   Special provision* for Semlnote Tribe.
I772e.   Water rights  compact
I772T   Judicial review.
1772g.   Kevucation of settlement.
                                         394
  1773.   Congressional findings (          i
          (a)  Finding*.
          (b)  Purpose.                -''
  ITTSa.   Resolution  of Puyalhip  tribal  land
            claim*.
          (a)  Relinqulshment
          (b)  Exception for certain lands.
          (e)  Personal claims.
  I773b.   Settlement land*.
          (a) Acceptance by Secretary.
          (b) Contamination.
          (c) Lands described.
          (d) Reservation status.
          (e) Authorization  of appropriations.
  1773C.   Future trust lands.
  1773d.   Funds U>  members of Puyalhip Tribe.
          (a) Payment to Individual member*.
          (b) Permanent trust  fund for tribal
               member*.
  ITTSe,   Fisheries.
  1773f.   Economic  development and Und acqui-
           sition.
         (a) Economic  development and  lam)
               acquisition fund.
         (b) Foreign  trade.
         (c)  Blair project
  1773g.  Jurisdiction.
  1773h.  Miscellaneous provisions.
         (a)  Liens and forfeiture*.
         (b)  Eligibility  for   Federal Programs;
               trust responsibility.
         (c)  Permanent trust fund not  counted
               for certain purpose*.
         (d) Tax treatment  of funds and assets.
 1773L   Actions by  the Secretary.
 1773J.   Definitions.

  SUBCHAPTER V1II-SENECA NATION
        (NEW YORK) LAND CLAIMS
               SETTLEMENT
 1774.   Findings and  purpose*.
        (a)  City of  Salamanca and congression-
              al villages.
        (b)  Purpose.
 1774a,  Definitions.
 1774b.  New  leases  and  extinguishment  of
          claim*.
        (a)  New leases.
        (b)  Extinguishment of claim*.
        (c)  Effective date of leases and relin-
           •   ruishmenta.
 1774C.  Responsibilities and  restrictions.
       (a) Seneca Nation.
       (b) Lessees.
       (c) United States.
       (d) State.
 1774A Settlement funds.
       (s) In general.
       (b) Funds provided  by United  Slates.
       (c) Funds to be provided by the State.
       (d) Time of  payment*.
       (e) Limitation.
1774e.  Conditions  precedent to payment of
          United Stale* and State funds.
1774f.  Miscellaneous provisions.
       (a) Liens and  forfeitures, etc.
       (b) Eligibility  for  government pro-
             grams.
IT74JL  Authoriiatlon of appropriations.
 SUBCHAPTER IX—MOHEOAN NATION
    (CONNECTICUT) LAND CLAIMS
             SETTLEMENT
ITT6.  Finding* and purpose*.
      (a) Finding*.
      (b) Purpose*.
ITT&a.   Definition*.
IT76b.  Action by Secretary.
      (a) In general.
      (b) Publication by Secretary.
      (e) Effect of publication.
       (d)  Extinguishment of claim*.
       (e) Transfer*.
       (f)  Limitation,
       (g)  Statutory construction.
       Conveyance of  lands to the  United
         Sutea to be  held  In  trust for the
         Mohegan tribe.
       (a)  In general.
       (b) Consultation.
       Consent of United States to State as-
         sumption of criminal jurisdiction.
       (a) In general
       (b) Statutory construction.
        Ratification of Town Agreement
        (a) In general.
        (b) Approval of Town Agreement
        Genera] discharge and release of obli-
          gations  of State of Connecticut
        Effect  of revocation  of State  Agree-
          ment
        (a)  In general.  •
        (b)  Right of Mohegan  Tribe  to rein-
              state claim.
        Judicial review.
        (a)  Jurisdiction.
        (b) Deadline for Ming.
    SUBCHAPTER X-CROW BOUNDARY
               SETTLEMENT
  1776.   Findings  and purpose.
         (s) Finding*.
         (b) Purpose.
  1776s.   Definition*.
                                                    (c)

                                                    (d)
                                                                              settlement
I775e.
IT7Sd.
ITJBe.
 1776f.

 1776g.
 1775h.
       (b)  RatUVauon  01
             Agreement
           Modification  of
             Agreement  .
           Enforcement   of  the  Settlement
             Agreement
1776e.  Settlement term*  and condition*  and
         extinguishment of cialm*.
       (a) Property within parcel  number  1.
       (b) Piupeity within parcel  number  S.
       (c) Piopeily  within parcel number 8
             and parcel number 4.
       (d) Exchange of pnbUe Und*.
       (e) Crow Tribal Trust Fund.
 1776d.  Establishment and administration  of
          Crow Tribal Trust Fund.
        (a)  Establishment of Crow Tribal Trust
              Fund.
        (b) Contribution* to Crow Tribal Trust
              Fund.
        (e) Investment
        (d) Distribution of Interest
        (e) Use  of interest for economic devel-
              opment
        (f)  Limitation.
 1778e.  Eligibility for other  Federal service*.
 17761  Exchanges of Und or minerals.
         (a)  In general.
         (b)  Ownership by non-Indiana.
  1776g.  AppUeabOity.
         (a)  In general
         (b)  Approval of release* and waiver*.
  1776h.  Escrow funds.
         (a)  In general
         (b) Establishment of Suspension  Ac-
               count*.
          (e) Contributions to the Suspension Ac-
               counts.
          (d) Limitation.
          (e) Investment
          (f) Withdrawal* and terminatioa
   1776L   Fort Laramie Treaty of 1888.
   1776J.   Satisfaction of claims.
   1776k.  Authorization of appropriation*.
        SUBCHAPTER I—RHODE ISLAND INDIAN CLAIMS SETTLEMENT

                                PART A—GENERAL PROVISIONS


   } 1701.   Congressional findings and declaration of policy

                           HISTORICAL AND STATUTORY NOTES
   Short Title                                    noag Tribal Council of Gay Head,  Inc.,  Indian
                                                 Claims Settlement Act of 1987, see section 1 of
     For short title of Pub.L. 100-95, which enact-   pub.L. 100-95, set out  as a note under aection
   td subchapter V of this chapter as the Wampa-   1771 of this title

                                    NOTES OF  DECISIONS
                                                 by federal statutes or regulation* to extent that
                                                 pipeline owned by non-Indian entity ran through
                                                 Indian reservation  trust lands;  regulation of
                                                 right-of-way grant* across reservation lands wss
                                                 st best tangentialry related la property  Ux on
                                                 pipeline silting in existing right-of-way, and al-
  Stale regulation or control   1
   I. State regulation or control  '
    Property Ux assessed and  levied by  Stale
   igainsl nstural gas pipeline was not preem|ited
                                                                                            395

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              Upllon agreement* to purchase private settlement lands
                                                                         LIBRARY REFERENCES
     C.JS. IndUni I 67 et seq.
                                  LIBRARY REFERENCES
   $  1705.  Publication of finding*;  approval of prior transfer! and extinguishment
             of claims and aboriginal title Involving Narragaiuett Tribe and town of
             Charleetown, Rhode Island

                                  LIBRARY REFERENCES
     CJ.S. Indiuu I  67 et seq.

   S 1707.  Purchase  and transfer of private settlement lands

                                  LIBRARY REFERENCES
    CJS.  IndUni  I 87 et seq.

   S  1708.  Applicability of State law
    C.JS. Indians M 6, M et seq.
  Jurlidlctlon over IHbc  I
  Regulatory powen of tribe  3
  Waiver of sovereign Immunity
                                 LIBRARY REFERENCES
                                  NOTES OF DECISIONS
  1.  Jurisdiction over tribe

    Rhode UUnd  Indian Claims Settlement Act
  section, providing that settlement land »hiH be
  lubject to dvfl and erimbul laws and Jurisdiction
  of Stale of Rhode Island, was valid eonferra] of
 jurisdiction, despite Namgansett Tribe's claim
 that untO federal recognition occurred after ef-
 fective date of Act, Tribe had no jurisdiction to
 relinquish; Tribe did not surrender jurisdiction
 upon entering Into settlement which formed ba-
 sis of Settlement Act but. rather. Tribe, state
 and town came to agreement to  ask Congress,
 among other things, to grant jurisdiction to state
 and, in any event, Tribe's retained sovereignty
 predated federal  recognition.  State of R.I. v.
 Namgansett Indian Tribe. C.A.1 (R.I.) 1994, 19
 F.3d 685.

  Statute which  confers state jurisdiction over
 Indian tribal settlement lands cannot confer jur-
 isdiction over  the tribe itself.  Maynard v. Nar-
 ragansetl Indian Tribe,  D.R.I.1992, 798 FJSupp.
 2.  Waiver of sovereign Immunity

   Indian tribe's surrender of right to sue for
 lands not included In settlement of tribe's claim
 of superior and aboriginal title to lands within
 state did not result In surrender of tribe's sover-
 eign Immunity from suit relating to territorial or
 extraterritorial actions and,  thus, Indian tribe
 possessed sovereign Immunity from suit brought
 by abutting landowner for alleged trespass, ab-
 sent any exptidt congressional authorization to
 contrary.  Maynard  v.  Namgansett Indian
 Tribe, CXI (R.I.) 1993, 984 Fid 14.

   Statute conferring state jurisdiction over Indi-
 an tribal settlement lands does  not  waive or
 abrogate tribe's sovereign Immunity;  provision
 does not expressly and clearly  state such waiver
 or abrogation.  Maynard v. Namgansett Indiu
 Tribe,  D.R.I.1992, 798 F-Supp. M.

 3.   Regulatory powen of tribe

  Statute conferring state jurisdiction over Indi-
 an tribal settlement lands does  not  abrogate
 tribe's  drO regulatory powen; statute subjects
settlement lands to state criminal and dvfl laws,
but not aO laws, meaning  there must  be some
laws which  do not apply  to settlement Isndi.
Maynard v. Namgansett  Indian Tribe, D.R.L
1992, 788 F.Sapp. 94.
§  1711.   Limitation of actions;  jurisdiction

                              WESTS FEDERAL FORMS
  Affirmative defenses, statute of limitations,
see i 2112 et seq.
                                                                                          tlSx Indians I 67 et aeq.
                                                    SUBCHAPTER II—MAINE INDIAN CLAIMS SETTLEMENT

                                             1721.  Congressional finding* and declaration of policy

                                                                  HISTORICAL AND STATUTORY NOTES
                                         396
rwttook Band of Mlcmacs Settlement Act
 Pub.L. 102-171, Nov. 26, 1991, 106 Slat. 1148,
Uided that:
btctlon 1.  Short Title.
 This Act may be died  as the 'Arooetook
Lad of Mlonaea Settlement Act'.
{he. 1.  Congressional findings and declarv
  i of policy.
 fa) Finding* and policy.—Congress hereby
Ma and declares that:
   "(1) The Aroostook Band of  Mlcmacs, as
 represented as of the time of passage  of this
 Act by the Aroostook Micmae Council, la the
 tole  successor In Interest, as to  lands within
 (he  United States,  to the  aboriginal  entity
 lenerally known  as the Micmae Nation which
 yean  ago claimed aboriginal title to  certain
 lands In the Slate of Maine.
   "(2) The Band was not referred to In the
 Ualne Indian Claims Settlement Act rf I960
 (this subchapter] because historical docnmen-
 Utlon of the  Mkmae presence In Maine was
 sot available at that time.
   "(3) This documentation does establish the
 historical presence of Micmacs in  Maine and
 the  existence of aboriginal lands  m  Maine
 jointly used by the Mlcmacs and other tribes
 to which  the Mlcmacs  could have asserted
 aboriginal title but for the extinguishment of
 lO such claims by the Maine Indian  Claims
 Settlement Act of 1980.
   "(4) The Aroostook Band of Mlcmacs, In
 both Its history and Its presence In Maine,  Is
 thnDar to the Houlton Band of Maliseet Indi-
 ans and would  have  received similar treat-
  ment under the  Maine Indian Claims  Settle-
  ment Act of  1980 If the  Information available
  today had been available to Congress  and the
  parties at that time.
   "(5) It Is  now fair and just  to afford the
  Aroostook Band of Micmacs the same settle-
  ment provided to the Houlton Band of Mali-
  seet Indians for the settlement of that Band's
  claims, to the extent they would have  benefit-
  ed from Inclusion in the Maine Indian Claims
  Settlement Act of 1980.
   "(6) Since  1820, the  State of  Maine has
  provided spedal services to the  Indiana resid-
  ing within Its borders. Including the members
  of the Aroostook Band  of Micmacs.  During
  this same period, the United States provided
  few spedal services to the Band and repeated-
  ly denied that It had jurisdiction over or re-
  sponsibility for  the  Indian groups in  Maine.
  In view of this provision of special services by
  the State of Maine, requiring substantial ex-
  penditures by the State of Maine and made by
  the State of Maine without being required to
  do so by Federal  law, H Is the Intent of
  Congress that the State of Maine not be re-
  quired further to contribute  directly to this
  settlement.
  "(b)  Purpose.—It is the purpose of this Act
to—
    "(I) provide  Federal  recognition of the
  Band;
    "(2) provide to the  members of the Band
  the services which the  United States provides
  to Indiana because of their status as Indians;
  and
    "(3) place (900,000 m  a  land acquisition
  fund and property tax  fund for the future use
  of the Aroostook Band of Mlcmacs; and
    "(4) ratify  the  Mlemae  Settlement  Act,
  which defines the relationship between the
  State of Maine  and the  Arooetook  Band of
  Micmacs.
"Sec. 1.   Definitions.
  "For the purposes of this Act:
    "(I) The term 'Band1 means the Aroostook
  Band of Micmacs, the sole successor  to the
  Micmae  Nation as  constituted In  aboriginal
  times In what is now the  Stale of Maine, and
  all Its predecessors and successors In Interest
  The Aroostook  Band of Mkmaea Is represent-
  ed,  as of the date of enactment of this Act
  (Nov. 28, 1991J, as to  lands within the  United
  States,  by  the Aroostook  Micmae CoundL
     "(2) The term 'Band Tax Fund* means the
  fund established under section 4(b) of this Act.
     "(3) The term 'Band  Trust  Land"  means
  land or natural resources  acquired by the
  Secretary of the Interior and held In trust by
   the  United Slates for  the benefit of the Band.
     "(4)  The term land or natural  resources'
   means any real property or natural resources,
   or any  Interest in or  right involving any real
   property or natural lesources. Including (but
   not limited to) minerals  and mineral rights,
   timber  and timber rights, water and water
   rights,  and hunting and fishing rights.
     "(S)  The  term 'Land Acquisition  Fund*
   means the hind established under section 4(s)
   of this  Act
     "(6)  The term laws of the State* means the
   constitution, and all statutes, regulations, and
   common laws of the  State of Maine  and Its
   political  subdivisions and   aD  subsequent
   amendments thereto  or judicial Interpreta-
   tions thereof.
                                                                                                                                  397

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                                                                       n
                                                                      g.
                                                                      s-
                                                                     HT
                                                                     a
                                                                     o
                                                                    h—•
                                                                     I
                                                                     ca
                                                                    ro
                                                                   r
                                                                   K>
                                                                   n
 SUBCHAPTER FV-CONNECTICUT INDIAN LAND CLAIMS SETTLEMENT

} 1751.  Congressional finding*
 The Congress finds that—
      (a) there Is pending before the United States District Court for the District of
   Connecticut a  dvfl action entitled "Western  Pequot Tribe of Indians against
   Holdridge Enterprises Incorporated, et aL, Civil Action Numbered H7&-193 (D.
   Conn.)," which Involves Indian claims to certain public and private lands within the
   town of Ledyard, Connecticut;
      (b) the pendency of this lawsuit has placed a cloud on the titles to much of the
   land in  the town of Ledyard. including lands not involved in the lawsuit, which has
   resulted in severe economic hardships for the residents of the town;
      (c) the Congress shares with the State of Connecticut and the parties to the
   lawsuit  a desire to remove all clouds on titles resulting from ouch Indian land
   claims;
      (d) the parties to the lawsuit and others interested in the settlement of Indian
         •  • .-  ...itMn the State of Connecticut have reached an agreement which
                                      '   "	• »r •»»*! United States  and Die

-------
u the 'Mashantueket Pequot Indian Claims Set-
Uement Act'."
        )  the Western Pequot Tribe, as represented  as  of October  18, 1983
        /lantucket  Pequot Tribal  Council, is  the  sole successor  In  interes
   -nuoriginal entity generally known as the Western Pequot Tribe which y«.
    claimed aboriginal title to certain lands in  the State of Connecticut;  and
      (0  the State of Connecticut is contributing twenty acres of land owned by the
    State  of Connecticut to fulfill this subchapter.   The  State  of  Connecticut  will
    construct and  repair  three  sections  of paved or  gravel roadways  within  the
    reservation  of the Tribe.  The State of Connecticut has provided special services to
    the members of the Western Pequot Tribe residing within Its borders. The United
    States has provided few, if any, special services to the Western Pequot Tribe  and
    has denied that it had jurisdiction over or responsibility for said Tribe.  In view of
    the provision of land by the State of Connecticut, the  provision of paved  roadways
    by the State of Connecticut,  and the provision of special  services by the State of
    Connecticut without being required to do so by  Federal  law, It Is the intent of
    Congress that the State of Connecticut not be required to otherwise contribute
    directly to this claims settlement

(Pub.L. 98-134. i  2. Oct 18. 1983. 97 Sut 861.)

                      HISTORICAL AND  STATUTORY NOTES

Short Title
  Section 1  of Pub.L 98-134 provided: That
this Act (enacting  thil aubchapter) may be cited

J  1752.  Definitions
  For the purposes of this subchapter—
      (1)  The term "Tribe" means the Mashantucket Pequot Tribe (also known as the
    Western Pequot Tribe) as Identified  by chapter  832 of the Connecticut General
    Statutes and all its predecessors and successors  in interest  The  Mashantucket
    Pequot Tribe Is represented, as  of October 18, 1983, by the Mashantucket Pequot
    Tribal Council.
      (2)  The term "land or natural resources" means any real property or natural
    resources,  or  any interest In or  right Involving any real property  or natural
    resources, including without limitation minerals and mineral rights,  timber and
    timber rights, water and water rights, and hunting and fishing rights.
      (3)  The term "private settlement lands" means—
           (A) the eight hundred acres, more  or less, of privately held land which are
        identified  by a red outline on a map  filed with the secretary of the State of
        Connecticut in accordance with the agreement referred to in  section 1751(d) of
        this title, and
           (B)  the  lands known  as the  Cedar Swamp which are adjacent to the
        Mashantucket Pequot Reservation as It exists on  October 18,  1983.  Within
        thirty days of October 18, 1983, the secretary of the State of Connecticut shall
        transmit to the Secretary a certified copy of said nup.
       (4)  The term "settlement lands" means—
           (A)  the lands described in sections 2(a) and 3  of the Act To Implement the
        Settlement of the Mashantucket Pequot Indian Land Claims as enacted by the
        State of Connecticut and approved on June 9, 1982, and
           (B)  the private settlement lands.
       (5)  The term "Secretary" means the Secretary of the Interior.
       (6)  The term "transfer" means any transaction  involving, or any transaction the
    purpose of  which was to effect, a change in title to or  control of any- land or natural
    resources, and any act, event, or circumstance that resulted In a  change in title to,
    possession  of, dominion over, or control of land or natural  resources, including any
    sale, grant, lease, allotment, partition, or conveyance, whether pursuant to a treaty,
    compact, or statute of a State or otherwise.
       (7)  The term "reservation" means the existing reservation of the Tribe as defined
    by chapter 824 of the Connecticut General Statutes and any settiement lands taken
    in trust by the United States for the Tribe.                              -^
    tnctt In Text
 -llie  provisions of  the Connecticut  General
| Sututei relating to the  Maahantuckel Pequot
                                                                                Indian* are Ml out (A chapter KM
                                                                                (C.R.S.A. I 47-67 et aeq.) of thj
                                                                                General Statutes.
SUtulM rei»u*.&  _ ~

I 1753.   Extinguishment of aboriginal titles and Indian claims

It) Approval and ratification of prior transfers
  Any transfer before October 18,1983, from, by, or on behalf of the Tribe or any of its
 members of land or natural resources located anywhere within the United  States, and
 my transfer before October 18,1983, from, by, or on behalf of any Indian, Indian nation,
 or tribe or band of Indians of land or natural resources located anywhere within the
 town of Ledyard, Connecticut, shall be deemed to have been made in accordance with
 the Constitution and all laws of the United States, Including without limitation the Trade
 ind Intercourse Act of 1790, Act of July 22,1790 (ch. 33, sec. 4,1 Slat 137,138), and all
 unendments thereto and aU subsequent reenactinenta and  versions thereof, and Con-
 fress hereby does approve and ratify any such transfer effective aa of the date of said

 transfer.'

  (b) Extinguishment of title
    By virtue of the approval and ratification of a transfer of land or natural resources
  effected by subsection (a), any aboriginal title held by the Tribe or any member of the
  Tribe, or any other Indian, Indian nation, or tribe or band of Indiana, to any land or
  natural resources the transfer of which was approved and ratified by subsection (a) shall
  be regarded  as extinguished as of the date of auch transfer.

  (c)  Extinguishment of claims
    By  virtue  of the approval and  ratification of a transfer of land or natural resource*
   effected by this section, tr the extinguishment of aboriginal  title effected thereby, any
   claim (including any claim for damages for trespass or for use and occupancy) by, or on
   behalf of, the Tribe or any member of the Tribe or by any other Indian, Indian nation,
   or tribe or band of Indians, against the United States, any State or subdivision thereof

    cr any other person which is based on—
         (1) any interest In or right involving any land or natural resources the transfer of
       which was approved and ratified by subsection (a) of thi; section, or
          (2) any aboriginal title to land or natural resources the  extinguishment of which
        was effected by subsection (b) of this section,
    ihall be regarded as extinguished as of the date of any  such transfer.

    (d)  Savings provision
      Nothing in this section shall  be construed to affect or eliminate the personal claim of
     my Individual Indian (except .for Federal common law fraud claim) which is pursued
     under any law of general  applicability  that protects non-Indians as  well as Indians.


     (e) Effective date;  notice
       (1) This section shall take  effect upon the appropriation of $900,000 as  authorized

     under section 1754(e) of this title.
       (2) The Secretary shall publish notice of such  appropriation In the Federal Register
     when the funds are deposited in the fund established under section 1754(a) of thb title.

          L. 98-134,  14. Oct. 18. 1983, 97 Sut 852.)
                                                                                 AND
                 In Text
                                                                                                          ,37.
                                                                                        to the Code
       3UU l*»if, •	
       ,  1754  Mashantucket Pcouot Settlement Fund

       "^jSS^affiMB^.
                                                                                                                             as
                                                                                                                            the

-------
 ^^	;xrxndlnr of  Fund;  private settlement landa;  economic develop.
       acquisition of land and natural resources
   (I) The Secretary la authorized and directed to expend, at the requeat of the Tribe,
 the Fund together with any and  all Income accruing to such Fund In accordance  with
 this subsection.
   (2) Not leas than $600.000 of the Fund shall be available until January 1, 1986, for the
 acquisition  by the  Secretary of private settlement lands.   Subsequent to January 1,
 1985,  the Secretary shall determine whether and to what extent an amount less  than
 $600,000  haa  been  expended to acquire private settlement lands and shall make  that
 amount available to the Tribe to be used in accordance with  the economic development
 plan  approved pursuant to paragraph  (3).
   (3)(A)  The Secretary shall disburse all or part of  the Fund together with any and all
 Income accruing to such  Fund  (excepting the  amount reserved  In  paragraph  (2))
 according to a plan to promote the economic development of the Tribe.
   (B) The  Tribe shall submit  an  economic development plan to the Secretary and the
 Secretary shall approve such plan  within sixty days of its submission If he finds that it U
 reasonably related to the economic development of the Tribe.   If the Secretary does not
 approve such plan, he shall, at the time of his decision, set forth in writing and with
 particularity, the reasons for his disapproval.
   (C) The Secretary may not  agree to terms which provide for  the  investment of the
 Fund  in a  manner inconsistent with section 162a of this title,  unless  the Tribe  first
 submits a specific waiver of liability on the  part of the United States for any loss which
 may result from such an Investment
   (D) The Tribe may, with  the approval of the Secretary, alter the economic develop-
 ment plan subject to the conditions set forth in subparagraph (B).
   (4) Under no circumstances shall any part of the Fund be distributed  to any member
 of the Tribe  unless pursuant to  the  economic  development plan approved  by  the
 Secretary under paragraph (3).
   (5) Aa the Fund or any portion thereof la disbursed by the Secretary in accordance
 with this section, the United States shall have no further trust responsibility to the Tribe
 or its members with respect to the sums paid, any  subsequent expenditures of these
 sums, or any property other than private settlement lands or services purchased with
 these sums.
  (6)  Until the Tribe has submitted and the Secretary  haa approved the  terms of  the
 use of the  Fund, the Secretary shall fix the terms for the administration of the portion of
 the Fund  aa to which there is no agreement
  (7)  Lands or natural resources  acquired under this subsection which  are  located
within the settlement lands shall be held In trust by the United States for the benefit of
 the Tribe.
  (8)  Land  or natural  resources  acquired  under this  subsection  which  are  located
 outside of the settlement lands shall be held In fee by the Mashantucket Pequot Tribe,
 and the United States shall have no further trust responsibility with respect to such land
 and natural  resources.   Such land  and  natural resources shall not be subject to any
 restriction against alienation under the laws of the United States.
  (9)  Notwithstanding the provisions of section 257 of Title 40 and section 258a of Title
 40. the Secretary may  acquire  land or natural  resources under this section from  the
ostensible  owner of the land or natural resources only  if the Secretary and the ostensible
owner  of the land or natural resources  have agreed  upon the identity of the land  or
 natural resources to be sold  and  upon  the purchase price and other terms  of sale.
Subject to the agreement required by  the  preceding  sentence, the Secretary  may
 institute condemnation proceedings in order  to perfect title, satisfactory to the Attorney
 General, In the United States and  condemn Interests adverse  to the ostensible owner.

 (c) Transfer of private  settlement land as  Involuntary conversion
   For the  purpose of subtitle A of the Internal Revenue  Code of 1954 |2G U.S.CA. § 1
 et scq.|. any transfer of private  settlement lands to which subsection (b) of this section
(d)  Documentation of rellnquishment of tribal claims
  The Secretary may not expend on behalf of the Tribe »ny sums deposited In the Fund
established pursuant to subsection (a) of thia  section unless and until  he  finds that
authorized officiala of the Tribe have executed appropriate documents relinquishing all
claims  to the  extent  provided  by  sections 1753  and  1759 of this title,  including
stipulations to the final judicial dismissal with prejudice of Its claims.

(e)  Authorization of appropriation
  There  Is  authorized  to  be appropriated  $900,000  to  be  deposited  in  the Fund.

(Pub.L. 98-134, I B, Oct. 18, 1983, 97 Sut 863.)

                       HISTORICAL AND STATUTORY NOTES
References In Text                         lection 1  et seq. of Title 26. Internal Revenue
  Subtitle A of the Internal Revenue  Code of   Code.
1954, referred U> In subset, (e), b  act out In

} 1755.   State jurisdiction over  reservation
  Notwithstanding the provision relating to a special election In section 406 of the Act of
April 11, 1968 (82 Stat 80; 25 U.S.C. 1326) (25 U.S.C.A. § 1326). the reservation of the
Tribe is  declared to be  Indian  country  subject to State  jurisdiction to the maximum
extent provided In title IV of such Act [25 U.S.CA. § 1321  et seq.).

(Pub.L. 98-134. i 6. Oct  18, 1983, 97 Sut.  865.)

                       HISTORICAL AND STATUTORY NOTES
 Reference! In Text
  The Act of AprD 11. 1968. referred to In text.
 It Pub.L.  90-284.  Apr. 11, 1968, 82 SUL 73.


 i 1756.  Practice and procedure
Title W of that Act b classified to subehapter
III  (i 1321 et seq.) of chapter 16 of this title.
Section 406 of that Act la classified to section
1326 of thia title.
 (a) Constitutionality
   Notwithstanding any other provision of law, the constitutionality of thia subchapter
 may not be drawn into question in any action unless such question has been raised in—
       (1)  a pleading contained in a complaint filed before the end of the one-hundred-
     and-eighty-day period beginning on October 18,  1983, or
       (2)  an  answer contained in a reply to a complaint before the end of such period.

 (b) Jurisdiction
   Notwithstanding any other  provision of law, exclusive  jurisdiction of any action in
 which the constitutionality of  this subchapter is drawn Into question  is vested in the
 United States Diatrict Court for the District of Connecticut

 (c) Removal  of actions

   Any action  to which subsection (a) of this section applies and which is brought in the
 court of any State may be removed by the defendant to the United States District Court
 for the District of Connecticut

 (d) Jurisdictions! acts;  Implied consent  to sue the United States

   Except  as  provided in thia subchapter, no provision  of this subchapter shall bv
 construed  to  constitute a jurisdictional act, to confer jurisdiction to sue, or to grant
 implied  consent  to any Indian, Indian nation, or tribe or band of  Indians to sue (ho
 United States or any of Its officers  with  respect to the claims extinguished by the
 operation of this subchapter.                                                     ^

 (Pub.L. 98-134. 5 7, Oct. 18.  1983.  97 Slat. 855.)
                                       lit

-------
        'ubjeet to aubeection (b) of this section, lands within the reservation V   '  ar-
  ',        rust by the Secretary  for the benefit of the Tribe or which are si       >
  1- -•_   .. restraint tgalnst alienation it any time after October 18, 1983, shall .      je>
  to the laws of the United States relating to Indian lands, including section  ITi  of thu"
  titk.
    (b)  Notwithstanding subsection (a) of this section, the Tribe may lease lands for any
  term of yean  to the  Maahantucket Pequot Housing Authority, or any  successor in
  Interest to such Authority.
  (Pub.L. 98-1K f 8, Oct. 18, 1983, 97 SUL 866.)

  {  1758.  Extension of Federal recognition and privilege*

  (a) Applicability of United States laws and regulation*
    Notwithstanding any other provision of law, Federal recognition is extended  to the
  Tribe.  Except as otherwise provided In this subchapter, all laws and  regulations of the
  United States of general  application to Indiana or Indian nations, tribes or bands of
  Indiana which are not inconsistent with any specific provision of this subchapter shall be
 applicable to the Tribe.

 (b) Filing of organic governing document and  amendments
   The Tribe shall file with the Secretary a  copy of Its organic governing document and
 any amendments  thereto.  Such instrument must be consistent with  the terms of this
 subchapter and the  Act  to Implement the  Settlement  of the Mashantucket Pequot
 Indian  Land Claim as enacted by the State of Connecticut and approved June 9, 1982.

 (c) Eligibility for services and  benefits
  Notwithstanding any other provision of law, the Tribe and members  of the Tribe shall
 be  eligible for all Federal  services and benefits furnished  to federally recognized Indian
 tribes as of October 18. 1983.
 (Pub.L 98-1M. | B. Oct. 18,  1BS3, 97 StaL 866.)   '

 } 1759.  General discharge and release of State of Connecticut
  Except as  expressly  provided  herein, this  subchapter shall  constitute a  general
 discharge and release of all obligations of the State of Connecticut and all of its political
 subdivisions, agencies, departments, and all  of the  officers or employees thereof arising
 from any treaty or agreement with, or on  behalf of the Tribe or the  United States as
 trustee  therefor.
 (Pub.L. 98-134. I 10, Oct. 18, 1983, 97 SUL 866.)

 S 1760.  Separability of provisions
  In the event that any provision of section 4 of this Title  is held invalid, it is the intent
of Congress that the entire subchapter be  Invalidated.   In the event that any  other
section or provision of this subchapter is held Invalid, it is the Intent of Congress that
the remaining sections  of this subchapter shall continue in full force  and effect
(Pub.L. 98-134, f 11. Oct. 18,  1983. 97 StaL 866.)

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SUBCHAPTER V—MASSACHUSETTS INDIAN LAND CLAIMS SETTLEMENT

§. 1771.  Congressional flndinfa and declaration of policy
  The Congress hereby finds and declares that—
      (1) there is pending before the United States District Court for the District of
    Massachusetts a lawsuit that Involves Indian claims to certain public lands within
    the town of Gay Head, Massachusetts;
      (2) the pendency of this lawsuit has resulted in severe economic hardships for the
                         . ~ .. IT... j v,. ..twin* m» tin** to much of the land In the
                                                                                                                                                         •
                                                                                                                                                         tucu
   (3) the Congress shares with the  Commonwealth >oi  :.i*&a
 parties to the lawsuit a desire to remove all clouds on titks i

 Indian land claim;                                           	
    (4) the parties to the lawsuit and others interested In settlement of Indian land
  claims within the Commonwealth of Massachusetts executed a Settlement Agree-
  ment which, to become effective, requires Implementing legislation by the Congress
  of the United States and the General Court of the Commonwealth of Massachusetts;
    (S) the town of Gay Head has agreed to contribute approximately 60 percent of

  the land Involved in this settlement;
    (6) the State of Massachusetts has agreed to provide up to &260.000 to be used
   for the purchase of land to be held in trust by the Secretary for the use and benefit
   of the Wampanoag Tribal Council of Gay Head, Inc;  and
     (7)  the Secretary has acknowledged the existence of the  Wampanoag  Tribal
   Council of Gay Head, Inc.  as  an Indian tribe and Congress  hereby ratifies and
   confirms that existence as an Indian  tribe with a  government to government

   relationship with the United Statea.

(Pub.U 100-96,1 2. Aug. IB. 1987, 101  Sut 704.)
                     HISTORICAL AND STATUTORY NOTES
Effective Date                             Tribal Council of Cay Head, Inc. b transferred.

  Section  11  of Pub.U 100-W provided that   1?l*_'jet **!!1J^ tr*f*fer> V*l?e ?*U,lh*r*of>
                                         ahaD be certified and recorded by the Secretary
  "(a) In general.—Except aa provided In cub-   of the Commonwealth of Maaiachutettt."
 lection (b), thia Act [enacting thla aubchapter
 and enacting a provision act out aa a note under   Short Title
 thli section) ahaD take effect upon the date of    Section  I  of   " "   ""* "* ~~~*A
        , !»„.. IB, 198U                    -TW, Actler«et
                                              —'—i—• »^  ,
                                                                                                                             econ      PubJL.  100-95 provided that
                                                                                    actment (Aug. 18, 1.                    -nj, ^ {^tgonf this tubehapter and enacting
                                                                                    "(b> Exceptions-Section 4 (tection 1771b of   a provWon ut out aa a note under Uu» aection]
                                                                                            ali take effect upon the date on   may be died u the •Wampanoaf Tribal Council
                                                                                                                                          Indian CUIma Settlement Act
 OJi iccuoni «— -TT-Jjr
 enactment [Aug. 18, 1987).
 enactmen     .  ,
   "(b> Exceptions-Section 4 (tection 1771b of   a provon u
 Ihli title) ahali take effect upon the date on   may be died u the •Wampanoaf Tribal Counc
 which the title of aD of the private tetUeroent   of Gay Head, Int. Indian CUIma Settlement Act

 tanda provided for In thla Art to the Wampanoaf   of 196T*
                                       REFERENCES
    Indiana «»10.
    Public Landa «»S.
                                                                                                               LIBRARY REFERENCES
                                                                                                                             CJJS. Indiana II 4 et teqM 80,  67 et aeq.
                                                                                                                             CJJ3. Public Landi I 31 et «eq.
     1771a.  Gay Head Indian claims settlement fund


   (a) Fund established
     There is hereby established within the Treasury of the United States a fund to be
   known as the "Wampanoag Tribal Council of Gay Head, Inc. Claims Settlement Fund".
   Amounts In the fund shall be available to the Secretary to carry out the purposes of this

   tubchapter.

   (b) Authorisation for appropriation
     There is hereby authorized to be appropriated $2£60,000 for such fund to remain

    available until expended.

    (c) State contribution required
      Amounts may be  expended from the fund only  upon deposit  by the  State  of
     Massachusetts into the fund of an amount equal to that amount to be expended by the
     United States BO that both the United States and the State of Massaehusetta bear one-
     half of the cost of the acquisition of lands under section ITTld of this title.
                                  ----- ««* \
I
     Effective Dal*

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  Public Lands «-3.
                            LIBRARY REFERENCES
                                          CJS. Indian* I 80. 67 et seq.
                                          CJS. PubHe Lands | 87 et seq.
?71c.
                                                  Conditions precedent to Federal purchase o«
S 1771b.  Approval of prior transfers and extinguishment of aboriginal title and
          clalmi of Gay Head Indian*

(a) Approval of prior transfer*
  (1) Any transfer before August 18, 1987, of land or natural resources now located
anywhere within the United .States from, by, or on behalf of the Wampanoag Tribal
Council of Gay Head, Inc., or (2) any transfer before August 18,1987, by, from, or on
behalf of any Indian, Indian nation, or tribe or band of Indians, of any land or natural
resources located anywhere within the town of Gay Head, Massachusetts, including any
transfer pursuant to any statute of the State, and the incorporation of the town of Gay
Head, shall be deemed to have been made in accordance with the Constitution and aO
laws of the United States that are specifically applicable to transfers of land or natural
resources from, by, or on behalf of any Indian, Indian nation, or tribe or band of Indlani
(including the Trade and Intercourse Act of 1790, Act of July 22,1790 (ch. 83, sec. 4,1
Stat  137), and all amendments thereto and all subsequent versions thereof). Any such
transfer and any transfer In implementation of this subchapter, shall be deemed to have
been  made with the consent and approval of Congress as of the date of such transfer.

(b) Extinguishment of aboriginal title
  Any aboriginal title held by the Wampanoag Tribal Council of Gay Head, Inc. or any
other entity presently or at any time in the past known as the Gay Head Indians, to any
land  or natural resources the transfer of which la consented to and  approved In
subsection (a) of this section la considered extinguished as of the  date of such transfer.

(c) Extinguishment of  claims arising from prior  transfers or extinguishment of
      aboriginal title
  Any claim (Including any claim for damages for use and occupancy) by the Wampa-
noag Tribal  Council of Gay Head,  Inc., the Gay Head Indiana,  or any other Indian,
Indian  nation, or tribe or band  of Indiana against  the United  States,, any State or
political subdivision of a  State, or any other person which is baaed on—
  (1) any transfer of land or natural resources which is consented to and approved in
subsection (a) of this section or
  (2) any aboriginal title to land or natural resources the transfer of which la consented
to and approved in subsection (b)
la extinguished as of the date of any such transfer.

(d) Penonal claims not affected
  No provision of this section shall be construed to offset or eliminate the personal claim
of any  individual Indian which is pursued under any law of general applicability that
protects non-Indians as well as Indians.
(Pub.L.  100-96, | 4, Aug. 18,1987, 101 Sut  70S.)

                      HISTORICAL AND STATUTORY NOTES
                                        (a) Initial determination of State and local action
                                          No action shall be taken by the Secretary tinder section ITTld of this title before Um
                                        Secretary publishes notice in the Federal Register of the determination by the Secretary

                                        ik.i _
                                                                                 ••  *- ------ i^i wfciBtton which provides
                                        that-
 Reftrencci In Text
  The Trade and Intercourse Act of 1790, Act of
 July 22, 1790 (ch. S3, tec. 4. I SUL 187. 188).
 referred to In subset (a), b not classified to the
 Code.  See tecUom 177.179, 180. 183. 194. 201.
 229. 230. 251.263, and 264 of thii title.

 effective Dale
  Section effective upon the date on which the
 title of all of the private settlement lands provid-
ed for In this subchapter to the Wampanoag
Tribal Council of Gay Head. Inc. la transferred,
with  the fact of  euch transfer, and the date
thereof, to be certified  and  recorded  by the
Secretary of the  Commonwealth of Massachu-
setts, tee section ll(b) of Pub.L. 100-95. set out
as a note under section 1771 of this title.
     Bians 0=10.
                             LIBRARY REFERENCES

                                            CJS. Indians i 67 et seq.
   ary puuumibw..	
   (1) the Commonwealth of Massachusetts has enacted legislation which provides

  that—
        (A) the town of Gay Head, Massachusetts, is authorized to convey to the
      Secretary to be held In trust for the Wampanoag Tribal CouncQ of Gay Head.
      Inc. the public settlement lands and the Cook lands subject to the conditions
      and limitations set forth in  the Settlement Agreement; and
        (B)  the Wampanoag Tribal  Council of Gay  Head, Inc. shall  have the
      authority, after consultation with  appropriate  State  and  local  officials,  to
      regulate any hunting by  Indians on the settlement lands that te conducted  by
      means other than firearms or eroasbow to the extent provided m, and subject
      to  the conditions and limitations set  forth in, the Settlement Agreement;
     (2) the  Wampanoag Tribal  CouncQ of Gay Head, Int.  has submitted to the
   Secretary  an executed waiver or waivers  of the claims covered  by the Settlement
   Agreement  aD  claims extinguished by this  lubchapter,  and  aO claims arising
   because of the approval of transfers and extinguishment of titles and claims under

   this subchapter, and
      (3) the town of Gay Head, Massachusetts, has authorized the conveyance of the
   public settlement  lands and the Cook Lands to  the Secretary in trust for  the
   Wampanoag Tribal Council of Gay Head, Inc.

(b) Reliance  upon the Attorney General  of Massachusetts
  In making  the findings required in subsection (a)  of this section, the Secretary  may
rely upon the opinion of the Attorney General of the Commonwealth of Massachusetts.

(Pub.L. 100-96, | 6, Aug. 18, 1987,101 Slat. 70S.)
                      HISTORICAL AND STATUTORY NOTES

 Effective DaU
  Section effective  Aug. 18, 1987, see section
 ll(a)  of Pub.L. 100-86, set out as a noU under
 section 1771 of this titte.
   Indians «-10,
   PubUc Lands «»3.
                                                                        LIBRARY REFERENCES
                                                                                       CJS. Indiana I 67 et seq.
                                                                                       CJS. PubUc Lands I 37 el aeq.
                                            j 1771d.   Purchase and transfer of settlement land.
                                              ) Purchase of private settlement lands
                                              The Secretary is authorized and directed to expend, at the request of the Wampanoag
                                              ribal CouncQ of Gay Head. Inc. $2,125,000 to acquire the private settlement lands. At
                                                                manoa  Tribal Council of Gay Head, Inc, the Secretary shall not
                                                                                                             he reuest of the
  sucn ouier wiiua »._.	   _
  the purchase of such contiguous wnuo,  _		
  restrictions and benefits as the private settlement lands.

  (b) Payment for survey and appraisal
     The Secretary b authorized and directed to cause a survey of the public settlement
   lands to be made within 60 days of acquiring  title to the public settlement lands.  The
   Secretary shall  reimburse the  Native American Rights Fund and  the  Gay  Head
   Taxpayers Association for an appraisal of the private  settlement lands done  by Paul
   O'Leary  dated May 1.1987.  Such funds as may be necessary may be withdrawn from
   the Fund established in section 1771a(a) of this title and may be used for the numoae of
                      	J  •"•""Win? reimbursement for the appraJnai      j«^al

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 (c) Acquisition of additional landa                             <                 (
   The Secretary shall expend, »t the request of the Wampanoag Tribal Co.,.. ^ of Cij
 Head, Inc., any remaining funds not required by subsection (a) or (b) of this section to
 acquire any additional lands that are contiguous to the private settlement lands.  Anj
 lands acquired pursuant to this section, and any other lands which are hereafter held in
 trust for the Wampanoag Tribal  Council of Gay Head, Inc., any successor, or Individual
 member, shall  be subject  to  this subchapter, the Settlement  Agreement and other
 applicable law*.  Any  after acquired land held in trust for the  Wampanoag Tribil
 Council of Gay Head, Inc., any successor, or Individual member, shall be subject to tht
 same benefits and restrictions as apply to the most analogous land use described in the
 Settlement Agreement

 (d) Transfer and survey of land to Wampanoag  Tribal Council
   Any right, title, or interest to lands acquired by the Secretary under this section, and
 the title to public settlement lands conveyed by the town of Gay Head, shall be held in
 trust for the Wampanoag Tribal  Council of Gay Head, Inc. and shall be subject to thii
 subchapter, the Settlement  Agreement, and other applicable laws.

 (e)  Proceeding* authorized to acquire or to perfect title  .

   The Secretary  is authorized to  commence  such condemnation  proceedings as  the
 Secretary may determine to be necessary—
       (1) to acquire or perfect any right, title,  or interest  in any private settlement
     land, and
       (2) to condemn  any interest adverse to any  ostensible  owner of such land.

 (f) Public settlement lands held In trust

   The Secretary  Is authorized to accept and hold in  trust for  the benefit  of the
 Wampanoag Tribal Council of Gay Head, Inc. the pubUc settlement lands as described in
 section ITTlfTT)  of this title  Immediately upon the effective date of  this Act

 (g) Application

   The terms of this section shall apply to land In  the town of Gay Head.  Any land
 acquired by the Wampanoag Tribal Council of Gay Head, Inc., that la located outside the
 town of Gay Head shall be  subject  to all the civfl  and criminal laws,  ordinances, and
 jurisdiction of the Commonwealth of Massachusetts.

 (h) Spending authority

   Any spending authority (as defined in section 661(c)(2) of Title  2 provided in this
 section shall be effective for any fiscal year only to such extent or in such amounts as
 are provided In appropriation Acts.
 (Pub.L. 100-95. | 6. Aug. 18, 1987,  101 StaL 700.)

                      HISTORICAL AND STATUTORY NOTES
Reference! In Text
  The effective dtte of thii Act, referred to 'In
subset. (0. I* the effective date of Pub.L. 100-95.
See section II of Pub.I.. 100-95, tet out as a
note under section 1771 of this title.
             Effective Date

               Section effective Aug. 18,  1987, see section
             HO) of Pub.L. 100-96, set oat u a note tinder
             section 1771 of this title.
  Indians «»10.
  Public Lands «
LIBRARY REFERENCES
               CJA Indians I 67 et seq.
               CJJS. Public Lands I 87 et seq.
§ 1771e.  Jurisdiction over settlement lands;  restraint on alienation

(a)  Limitation on Indian jurisdiction over settlement lands
  The Wampanoag Tribal Council of Gay Head, Inc., shall not have any jurisdiction over
nonlribal members and shall  not exercise any jurisdiction  over any part of the settle-
ment lands in contravention of thin subchapter, the civil regulatory and criminal laws of
the  (Jomtnonwenllh rif M»M!nnrhH«»»tB  MIP  »nwn «' fSiv  u«,,i
(b) Subsequent holder bound to same terms and conditloni
  Any tribe or tribal organization which acquires any settlement Urn. «r ^a^other land
that may now or In the future be owned by or held In trust for any Indian entity in the
town of Gay Head, Massachusetts, from the Wampanoag Tribal Council  of Gay Head,
Inc. shall hold  such beneficial interest to such land subject  to  the  same terms and
conditions as are applicable to such lands  when held by such council.

(c)  Reservations  of right and authority  relating to settlement lands
  No provision  of this subchapter. shall affect or otherwise impair—
      (1) any authority to impose a lien or temporary seizure on the settlement lands
    as provided in the State Implementing Act;
      (2) the authority of the Secretary  to approve leases In accordance with the Act
    entitled "An  Act to authorize the leasing of restricted  Indian  lands for public,
    religious, educational, recreational, residential, business, and other purposes requir-
     ing the grant of long-term leases", approved August 9,1955 (25 U.S.C. 415 et seq.);
     or
      (3) the legal capacity of the Wampanoag Tribal Council of Gay Head, Inc. to
     transfer the  settlement lands to any tribal entity which may be organized as a
     successor  in  interest to Wampanoag Tribal  Council of Gay  Heacl, Inc. or  to
     transfer—
           (A) the right to use the settlement lands to Its members,
           (B) any easement for public or private purposes in accordance with the laws
         of the Commonwealth of Massachusetts or the ordinances of the town of Gay
         Head, Massachusetts, or
           (C) title to the West Basin Strip to the town of Gay Head, Massachusetts.
         pursuant to the terms of the Settlement Agreement

  (d) Exemption  from State assessment
    Any land held in  trust by the Secretary  for the benefit  of the Wampanoag Tribal
  CouncD of Gay Head. Inc. shall be exempt from taxation or Hen or "in lieu of payment"
  or other assessment by the State or any political subdivision of the  State to the extent
  provided by the Settlement Agreement:  Provided, however, That such taxation or lien
  or "in lieu of payment" or other assessment wQl only apply to landa which are zoned and
  utilized as commercial: Provided further. That this section  shall not be interpreted as
  restricting the Tribe from entering Into an agreement with the town  of Gay Head to
  reimburse such town for the delivery  of specific public services on  the tribal  lands.

  (Pub.L. 100-96.1  7. Aug. 18,1987. 101 StaL 707.)

                        HISTORICAL AND STATUTORY NOTES
  References In  Text                          es, approved August 9,  1966, referred to In
    The State Implementing Act, referred to In   subset (eX2). b Art Ang. 9.1956. e. 616.69 Slat.
  tubsee. (eXD. means leglslstion enacted by the   639. as amended, whkh  enacted section 416 to
  Commonwealth of Massachusetts conforming to   416d  of this title and amended section 396 of this
  the requirement* of  this  subchapter and the   "»>«•  For complete dasaUlcation of this Act to
  requirement* of the Massachusetts Constitution.   °* Code- see Tables.
  See section ITTlfdl) of this Utie.
    An Act to authorize the leasing of restricted
  Indian lands for  public, religious, educational,
  recreational,  residential, business, and other
  purposes requiring the grant of long-term tea*-
the Code, see Tables.

Effective Date
  Section effective Aug.  18, 1987. see section
ll(s) of Pub.L. 100-98. set out a* a note under
section 1771 of this title.
                                                             Indlsns «»10.
                                                             Pubhe Lands «»S.
                               LIBRARY REFERENCES
                                              CJJS. Indians || 67 et seq.. 90 et seq.
                                              CJS. Public Lands f 37 et seq.
                                                           { 1771f.  Definitions
                                                             For the purposes of this Act

                                                               (1) Cook lands
                                                                                                                                 l..n.l*
                                                                                                                    in namimiph (6)  of the

-------
(2) Wampanoag Tribal Council of Gay Head, Inc..     ,

   The term "Wampanoag Tribal Council of Gay Head, Inc." means th        .lUty
 recognized by the Secretary of the Interior as having a government to gotunment
 relationship with the United States.  The Wampanoag Tribal Council of Gay Head,
 Inc. Is the sole and legitimate'tribal entity which has a claim tinder the Trade and
 Intercourse Act of 1790, Act of July 22, 1790 (eh. 33, sec. 4, 1 Stat 1ST), to land
 within the town of Gay Head.  The membership of the Wampanoag Tribal CouncO
 of Gay Head,  Inc., Includes those 621 Individuals who have been recognized by  the
 Secretary of the Interior as being members of the Wampanoag Tribal Council of
 Gay Head, Inc., and such Indians of Gay Head ancestry as may be added from time
 to time by the governing body of the Wampanoag Tribal Council of Gay Head, Inc.:
 Provided, That nothing In this section shall prevent the voluntary withdrawal from
 membership in the Wampanoag Tribal  Council of Gay Head, Inc.,  pursuant to
 procedures established  by the Tribe,  The governing body  of  the  Wampanoig
 Tribal Council of Gay Head, Inc. Is hereby authorized to act on behalf of and bind
 the Wampanoag Tribal CouncO of Gay Head, Inc., in all matters related to carrying
 out this subchapter.

(3) Fund
   The term "fund" means the Wampanoag Tribal Council of Gay Head, Inc. Claims
 Settlement Fund established under section ITTla of this title.

(4) Land or natural resources
   The term land or natural resources" means  any  real property or  natural
 resources or any Interest in or right involving any real property or natural resource,
 Including but not limited to, minerals and mineral righto, Umber and timber rights,
 water and water rights, and rights  to hunt and fish.

(6) Lawsuit
   The term "lawsuit" means the action entitled Wampanoag Tribal CouncQ of Gay
 Head, and others versus Town of Gay Head, and  others (CA No.  74-6826-McN
 (D.Mass.)).

(6) Private settlement lands
   The term "private settlement lands" means approximately 177 acres of privately
 held land  described in paragraph 6 of the Settlement Agreement

(7) Public settlement lands
   The term "public settlement lands" means the lands described in paragraph (4) of
 the Settlement Agreement

(8) Settlement lands
   The term "settlement lands" means the private settlement lands and the public
 settlement lands.
                                                               f
(9) Secretary
   The term "Secretary" means the  Secretary of the .Interior.

(10) Settlement Agreement
   The term "Settlement Agreement" means the document entitled "Joint Memoran-
 dum of Understanding Concerning Settlement of  the Gay Head, Massachusetts,
 Indian Land Claims," executed as of November 22,1983, and renewed thereafter by
 representatives of the parties to the lawsuit, and as filed with the Secretary of the
 Commonwealth of Massachusetts.

(11) State Implementing act
   The term "State implementing act" means legislation enacted by  the Common-
 wealth of Massachusetts conforming to the requirements of this subchapter._and the
 requirements of the M» rf.™-b  f?^L   out aa a note under
                                            •««<»> '771 of thla title.
      Indiana *»10.
      Public Lands «-3.
                                LIBRARY REFERENCES
                                               CJS. Indiana I 8, M et aeq.
                                               CJJS. Public Landi | 87 et aeq.
    § 1771H.  Limitations of action; Jurisdiction
      Notwithstanding any other provision of law, any action to contest the constitutionality
    or validity under law of this subchapter, shall be barred unless the complaint is filed
    within thirty days after August 18, 1987.  Exclusive original jurisdiction over any such
    action and any proceedings under section  1771d(e) of this title is hereby vested in  the
    United States District Court of the District of Massachusetts.

     (Pub.L. 100-95, i 10, Aug. 18. IS87. 101 SUU 710.)

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                       HISTORICAL AND STATUTORY NOTES
 Effective Date
  Section effective At*.  18, 1987. ice tectkm
 lid) of Pub.U 100-05, tet out u a note nnder
 tection 1771 of this title.
  Indian* «-10.
  Public Undi «-S.
LIBRARY REFERENCES
               CJS. Indian* I IS et »eq.
               CJ.S. Public Land* I 87 et icq.
 5  17711.  Eligibility

   For the purpose of eligibility for Federal services  made  available to members of
 federally recognized Indian tribes, because of their status as  Indians, members of this
 tribe residing on Martha's Vineyard, Massachusetts, shall be deemed to be living on or
 near an  Indian reservation.

(Pub.L. 100-OT. | 12. Auf. 18. 1687.101 StaL 710.)

                       HISTORICAL AND STATUTORY NOTES
EffecUvc Date
  Section effective Aug. 18, 1987. MB »ection
ll(a) of PubJj. 100-46, tet out ti a noU nnder
section 1771 of thli tiUe.
  Indian* «-10.
  PubHe Land* «—3.
LIBRARY REFERENCES
               CJJB. Indian* I 87 et *eq.
               CJS. Public Land* I 87 et *eq.
                                                                                                                                                                        01

-------
 sf ilh^Authoritatlon of approj
   There \s authorized to-b*" unnroved bv the Secretary pursuant to section ll(dK8)

-------
°5 §1775b                                                      	

      (3)  pursuant  to  transfers carried  out  pursuant  to the  State Agree*
    United States holds title to lands described in exhibit B of the State Agreement-In
    trust  Tor the Mohegan Tribe to be used as the  Initial  Indian reservation of the
    Mohegan Tribe.

(b) Publication by  Secretary
  If the Secretary makes a determination under subsection (a) of this section that the
conditions specified in paragraphs (1) through (3) of that subsection have been met, the
Secretary shall publish the determination, together with the State Agreement, hi the
Federal Register.

(c) Effect of publication

    (1) In general
      Upon  the publication of the determination and the State  Agreement In  the
    Federal  Register  pursuant to subsection (b) of this section, a  transfer, waiver,
    release,  relinquishment, or other commitment made by  the Mohegan  Tribe  in
    accordance  with the terms and conditions of the State  Agreement shall be in full
    force and effect.

    (2)  Approval by the United States
       (A) The United States hereby approves any transfer, waiver, release, relinquish-
     ment, or other commitment carried out pursuant to paragraph (1).  .
       (B) A transfer made pursuant to paragraph (1) shall  be deemed to have been
     made In accordance with all provisions of Federal law that specifically  apply to
     transfers of lands or natural resources from, by, or on  behalf of an Indian, Indian
     nation, or tribe of Indiana (including the Act popularly known as the "Trade and
     Intercourse Act of 1790";  section 4 of the Act of July 22,1790 (1 Stat 187, chapter
     33)).  The approval of the United States made pursuant to subparagraph (A) shall
     apply to the transfer beginning on the date of the transfer.

 (d) Extinguishment of claims

    (1) In general
       Subject  to subsections (0(2) and (g) of this section, the following claims  are
     hereby  extinguished:
           (A)  Any claim to land within the State of Connecticut based upon aboriginal
          title by the Mohegan Tribe.
           (B) Any other claim that the Mohegan Tribe may have with respect to any
          public or private lands or natural resources in Connecticut, including any claim
          or .right based  on recognized title, Including—
                (I) any claim  that the Mohegsn Tribe may have to  the tribal seques-
              tered lands bounded out to the Tribe in 1684, consisting of some 20,480
              acres lying between the Thames River, New  London  bounds, Norwich
              bounds, and Colchester bounds;
                (II) any claim that the Mohegan Tribe may have based on a survey
              conducted under the authority of the Connecticut General Assembly in
              1736 of lands reserved and sequestered by the General Assembly for the
              sole  use and improvement of the Mohegan Indian Tribe; and
                (ill) any claim that the Mohegan Tribe may have baaed on any action by
              the State  carried out in I860 or 1861  or otherwise made by the State to
              allot, reallot, or confirm  any lands of the Mohegan Tribe to Individual
               Indians or other persons.

      (2)  Approval by the United States
         An extinguishment made pursuant to this  subsection shall be deemed  to have
      been made in nccordance with all provisions of Federal law that specifically apply to
       transfers of lands or natural resources from, by, or on behalf of an Indian, Indian
                           '"   "  " •-'•••"-•• "•-> *••• «««,ii*riv Vnnwn us  the^^kde and
(c) Transfers
  Subject to subsection (g) of this section, any transfer of lands or rtau     .-sources
feuted within  the State of Connecticut, including any such transfer made pursuant to
iny applicable Federal or State law (including any applicable L etty), made by, from, or
m behalf of the Mohegan Tribe or any predecessor  or  successor in interest of the
Mohegan Tribe shall be deemed to be In full force and  effect, as provided in subsection

(cXD of this section.

 10 Limitation
    (1) In general
      Except as provided in paragraph (2) and subject to subsection (g) of this section,
    by virtue of the approval by the United States under this section of a transfer of
    land or  the extinguishment of aboriginal title, any  claim by the Mohegan Tribe
    against the United States, any State or political subdivision of a State, or any other
    person or entity, by the Mohegan Tribe, that—
           (A) arises after the  transfer or extinguishment is  carried  out; and
           IB) is  based on any Interest  in or right Involving  any claim to lands or
         natural  resources  described  in  this section,  including claims for trespass
         damages or claims for use and occupancy,
     shall, beginning on the date of  the transfer  of  land or  the extinguishment  of
     aboriginal title, be considered fan extinguished claim.
     (2) Exception
        The limitation under paragraph (1) shall not apply to any Interest in lands or
      natural resources that is lawfully acquired by the Mohegan Tribe or a member of
      the Mohegan Tribe after the applicable date  specified in paragraph (1).


   (|) Statutory construction
      (1) Aboriginal interests
         Nothing in this section may be construed to extinguish any aboriginal right, title,
       interest, or claim to lands or natural resources, to the extent that such right, title,
       interest, or claim Is an excepted interest, as defined under section l(a) of the State

       Agreement

       (2) Personal claims
          Nothing in this section may be construed to offset or eliminate the personal claim
        of any individual Indian if the Individual Indian pursues such claim under any law of

        general applicability.
                      * * «ft
>4, 108 SUt 3802.)
    (Pub.L. 103-377. i 4. <
     Reference! In Text

     ^S^Jtfffis1^-
     "*^ '"22: Mf£r«nerally to ehapur
                            of land, to the United Bfe*» to be held in trust for the
      i H75c,  Conveyance of lands to in,
                Mohegan Tribe


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    775h.  Judicial review

fa) Jurfcdictlon                                           :                   	.
  Notwithstanding any other provision of law, during the period beginning on October
19,  1994 «nd ending on the date that is  180 days after such date, the United Slates
District Court for the Southern District of Connecticut shall have exclusive jurisdiction
over any action to contest the constitutionality of this aubchapter or the validity of any
agreement entered  into under the authority of  this subchapter or approved by  this
subchapter.

(b)  Deadline for filing
  Effective with the termination of the period specified in subsection (a) of this section,
no court shall have jurisdiction over any action to contest the constitutionality of  this
aubchapter or the validity of any agreement entered into  under the authority of  this
subchapter or approved by this subchapter, unless such action was filed prior to. the date
of termination of the period specified In subsection (a) of this section.
(Pub.L. 10S-3TT. I 10. Oct. 19, 1994, 108 SUL 8507.)

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                                  Chapter Ten

                               WATER RIGHTS
                                   Table of Contents

                                    Ptgf                                      Pogc

SECTION A. INTRODUCTION 		 575    5.  Measure of the Right 	 588
SECTION B. THE WINTERS DOCTRJNE	 578    6  Priority of the Right 		 590
                                           7.  Chsnge in Place or Ntture of Use 		592
  J.  Source of the Right 		 578    g  Transfer oC Indian Rights		_... 593
  i  Btsiscf the Right		 580
  3.  Indian  Reserved  Rights  Compared  to      SECTION C. FEDERAL  PROTECTION  OF
     Reserved Wafer Rights on Federtl  Public                INDIAN WATEH RIGHTS	 596
     Lands		-	 581   SECTION D ADJVDICATORY JURISDICTION 599
  4.  Scope of the Right 	 585   SECTION E. RECi'LATORY 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
  fiite supply of water. Many of the streams in the western United States have
 Pen 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
   Indians and Indian tribes have well established rights to large, but for the
 most  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 4 in  1908 and reaffirmed
  1 Colorado River Water COM. Diet. v. United States, 424 U.S. 800, 804 (1976).
  * See generally NAT*!. WATER COMM'N, WATER POLICIES TOR THE FUTURE—FINAL REPORT TO THE
 PRESIDENT AND TO THE CONGRESS OF THE UNITED STATES 8-9 (Washington: Government Printing
 Office. 1973).
  1 See generally Pelcyger, The Winters Doctrine and the Greening of Reservations, 4 J. CONTEMP.
 L. 19 (1977); Ranquist, The Winters Doctrine and How it Grew, etc., 1975 B. Y.U.L. REV. 639. See
 also P. MAXFIKLD, M. DOETERICH, & 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, Spec/a/ Con-
 Mdentiona Involving Indian Rights, 8 NAT. RESOURCES LAW. 237 (1975); Dellwo, Indian Water
 Rights — The Winters Doctrine Updated, 6 GONZ. L. REV. 215 (1971); Hundley, The Dark and
 Bloody Ground of Indian Water Rights: Confusion Elevated to Principle, 9 W. HIST. Q.  455-82
 (1978); Pelcyger, 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 Rights,  etc., 26 MONT. L. REV. 149 (1965); Note, Indian
 Reserved Water Rights: The Winters of Our Discontent, 88 YALE LJ. 1689 (1979). On water rights
 in general, see NA^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-
vice, 1971) (National Water Comm'n Legal Study No. 5); 1-7 WATERS AND WATER RIGHTS (R. Clark
md.) (Indianapolis: The Allen Smith Co.,  1967-1976) [hereinafter cited as WATERS AND  WATER
TUOHTS],
  4 207 U.S. 564(1908).
                                       575

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Ch. 10, Sec. A                 WATER RIGHTS                          576

it in 1963 in Arizona v. California.6 Cappaert v. United States* 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 appropriatore.  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
   in 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
  8 373 U.S. 546, 600 (1963). Reserved righto are not unique to Indians, 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 U.S. 546,601 (1963), decree entered, 376 U.S. 340 (1964). See Sec. B3
infra.
  •426U.S. 128(1976).
  7 Id. at 138-39 (citations omitted). Cappaert involved the  water rights of the Devil'a 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 rights. See Sec. B3 infra.
  8 426 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 right* 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 Atchison v. Peterson, 87 U.S. (20 Wall.) 507, 513 (1874).
  10 California v. United States, 438 U.S. 645, 653 (1978). See also 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
 jnacted the Desert Land Act,12 which was interpreted as providing that state
 aw controlled the  water  rights of recipients  of federal  land  patents.13
 3onsequently, no  United  States patent to private lands carries with  it any
 federally defined water right.14 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.15
  Under the  riparian  system,  followed primarily in eastern states,16 "the
 jwner 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
 af 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. ch. 262, 5 9, 14 Stat. 251, 253 (codified at 30 U.S.C. § 51), as amended
by Act of July 9, 1870, ch. 235, I 17. 16 Stat. 217, 218 (codified at 43 U.S.C. § 661). These two
statutes 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
    ater Co.,  101 U.S. 274, 276 (1879); Jennison v. Kirk, 98 U.S.  453 (1879).  See also I W.
    TCNS, 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, §§  15-19.
  "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. § 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).
  u 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). Ct. United States v. Rio Grande Dam & Irrig. Co., 174
VS. 690, 703 (1899) (states may control waters on federal lands unless superior rights of federal
government are involved).
  u 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,  § 610.
  18 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  owrrer 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 or 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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          J
Ch. 10, Sec. Bl                WATER RIGHTS                            573

  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 20 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.


JB. 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.
  19 See Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 805 (1976).
  20 The water rights of tribes occupying their aboriginal lands, which the tribes later reserved or
had confirmed by treaty, statute, executive order, or agreement, may date to pre-historic times.
United States v. Adair, 478 F. Supp. 336,350 (D. Or. 1979), appeal pending; United States v. Gila
Valley Irrig. Dist., 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 U.S. 661, 669 (1974); Pelcyger, 4 J. CONTEMP. 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 U.S. 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.
  21 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).
   2 Ch. 213, 25 Stat. 113, 124.

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        THE FEDERAL ACKNOWLEDGMENT PROCESS
                 SOURCE OF THE SECRETARY'S AUTHORITY
                     TO ACKNOWLEDGE 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:

      Sect/on 465 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. 1457), which charges the
      Secretary of the Interior "with the supervision of public business relating to ...
      Indians."

      Section 463 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 23Q, 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. •;>_.
                                        ''^-^'.:.-    ..:•.'•'•'*'••  •  ••''•/-.'-"
Since the early 19th century, Individual unrecoanized Indian groups have claimed their
                      ••;••'*-"•?». ? .'• •**. »'«•;,*'-» T-'.-V/v.^^f... •  •• ••  •-.-'• ;7r
sovereignty when seeking* Federal services bf help  in protecting their lands and
resources, or defending their Tights, ;p ..tax or govern.  These Indian groups, in doing
so, were also seeking recognition o'nclarification of their government-to-government
relationship with the United States as it applies lo them.  '  ••-';*•-•   .;- •
     •      •" '  ••'    '  •  ;".-^-;-.v*-;  •_•  -  -,'.••:•.•,•• :.-;  . ;-.•,  ••:  '•'•.    . .=' ;••:•. ..*..':

Jn the course of more than 150 years, tlhe methods for determining which of these
groups  were sovereign tribes varied from case to case, and recognition depended

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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 {1897); Dobbs v. United
States (1898); United States v. Sancfova/(1913); United States v.7V/ce (1916); Perrin
v. United  States (1914); United States v.  Candetaria (1926)).  ~As was more
specifically determined in United States v. Holliday.  70 U.S. 4O7  (1865):
                     •*...-... -•.  / '- -••--;>v> ••-<-..'-:?: >•&•• ••.•.•••vy.'W/.-/:**:..*^ •.••.•'.-.•• •<•-:.. • •
                                    •'• -.  .   . -.. -  :  •  ••.'  . 5. ' •
       In reference to all matters  of this kind, it 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 Congress. :i^%^'%tr ?:  •"•••
           •••"•: "'''     (: -•'' '•''•"•• •'• •''•r/^s&r'^^M-^-^'^jj);:^                      •'
The Supreme Court held,  however, that there were limits to this power. ^Specifically,
the  Court  stated in United St arcs,. y^fSandoval (and[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 .by arbitrarily calling them an Indian tribe."

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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.;....,-.-,••• <-.->VJ.•;.^-r*--) :•«'••..'. ••-•'•'
          -     •   ''.-  ;.,.•..-.'. '&•'< '-'>'-::^\:i   »V'i-":.! '••' :,--^'>t''r.3*j' 'V^^V&V^''5.
      3.    It presently .Inhabits or .historicallyInhabited aparticular territory.
               ••-- v'.".'':'-;r-v:•-•"-:> '••••.•  '-•-'-..••• ;^^'V-rVr!.i--^-?-v'^'^''^I?i^-'
Generally, neither Court decisions discussing tribal, character nor those discussing
government actions explored or anafyzed the specific standards or actual  procedures
used by  Congress, the .Department•,of\,the Interior,  or  the  BIA when determining
whether                                             '''~    '
•
          vr-ui-j--;
                    '  Vif::, i
Most frequently cited are the criteria set forth In the Handbook of Federal Indian Law
(1942) by Felix Cohen, Assistant Solicitor in the Department of 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 and previous government actions treating it as a tribe.  The
criteria are:       *" '  -     •-
      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;
            and        -  ' -   •

      5.    That the group has exercised political authority over its .members,
            through a tribal  council or other governmental forms.

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.

      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 exectrfive 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 Which was defined in
the  1901  Montoya ^'^Jhiied States decision  and 'clarified ^nfynfied States v.
      ..                               .i.         .       . .     .
       •  •'  -  —: • '-:' • -.^/':--, ';5i-\'.r.^l ~.'^~;f*\- '     •••:.-•-.•  ..... ->}'•"
The application of the^C6'hen*Critena sometimes "appeared haphazard, as no well-
defined process for  requesting 'recognition as a tribe existed. v .In 1975, vyith an
Increasing number ;:J.y v;. •«'.Vfi.l.£C|::-- . rV/f/!'.  -..-.(•;:,..; ! \.  !±-\ '•'•"- .Vijix _•::'•',_ ••.-• ^.^rX'i  -:.l-.^+s

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                                                                           •3?
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 Pasamaquoddy v. 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.

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     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/re solution, 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):      v  : -^  •-'.-'
7.    Read entire petition in depth
8.    Conduct  research needed to verify and/or refute petition
9.    Evaluate  and analyze available evidence
10.   Draft Technical Report
11.   Draft Summary under the Criteria      • ;. .  .•    '••"...'- .-  /    :.'•''.: -
12.   Conduct  in-house staff review of drafts       -  yy..:-^flx/§£,,;i :c..\
13.   Finalize proposed finding        -:     "     "         '-  '"    •'•'•"
Proposed Finding:     •". •&'•> •y.''.-io*-;t. ••>'• ••.-.*•. •.'»/^j^n:; 5fc\-:v:>*^'-c^aviJS®*c.c-t r"
14.   Publish notice of proposed finding in Federal Register     ;  .-^.v^.
15.   Distribute proposed finding to petitioner and all interested parties ^
16.   Review legal arguments and evidence submitted in response to finding
17.   Draft final determination and summary under criteria    :L:;vi: ; ?>...
18.   Conduct in-house Staff review of; draft./V;;!^-.'       't^"''::§-:
19.                             -•--•	•• -	- -   - •     • -•- .--->- -

20.


21.   Publish notice of Final beterminatibrflnTederai Register "-v-v^ ^zwjijg-f-:
22.   Distribute Final Determination to petitioner and all interested parties
23.   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

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 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 approach
 to its review of petitions for Federal acknowledgment.  Petition review is conducted
 independently by three professionals from the disciplines of Anthropology. Genealogy.
 and History.                /- :-  •-•.,.;..

                       WHAT A BAR GENEALOGIST DOES

 Preliminary Review of Petition for Obvious Deficiencies (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 Consideration Review (Case Work):   ..    -        « .
 3.     Reads and analyzes the entire petition in detail from  a genealogical perspective.
 4.     Conducts research .in Federal.  State,  and local repositories (both public and
       private) needed to verify information provided  in ~ stttion.
 5.     Conducts such other research needed  to clarify  or expand upon important
       genealogical issues.      ;             ;;-r.>. ,-.
 6.     Evaluates and analyzes available evidence and other information to
       a.    determine whether the petitioner's members are Indian and descend from
             the historic.tribe(s);           ._,•.....   <  r:
       b.    determine whether the  petitioner's members meet the group's own
             membership requirements; and   .--      ..... ,.,.-       K
       c.  ^ ^determine the extent to  which  the petitioner's members ere enrolled in
             federally recognized tribes.                 ,   -;•-
 7,    Writes draft technical report on available genealogical evidence.
.j8.    Writes draft summary under/criteria 83.7(d), (e), (f), and sometimes (g).
+Q.  ^Participates in in-house staff review of drafts and provides necessary defense
       of factual basis for genealogical evidence and recommendation. ?!'«;-.  -
  30.  Completes whatever At:e writes are necessary to finalize proposed finding
;-4 1. . Reviews arguments and evidence submitted in response to finding  ~;v
 -12.  Writes draft Final ^Determination   '"''" ^i4> ^•f^~
      ..   .
 .(Jtigation:  ;<
 ^3.   Provlojca ieclnniCo! ..                                           .^
  14.   Participates in preparation of the" Administrative Record for the Court.
  15.   Serves as Expert Witness 1i ''called. ^^:-/¥^-   •''''•"'' •''•*•' -••"'•^J^fe'M' ''
     :-      "  '     -:-:'':':  ':\-:'^i^                                      '.
  Administrative Area: .*".??' ••^'•^^.^r^^'''^i':-^^' t'^^''^'^-r--''~^.  '•'''^'S'jy&'Tig^.   .t':?   :
  1 6.   Serves as  staff person with administrative responsibility for all  requests for

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      information arising from cases in assigned geographical area.  (Genealogists
      currently have administrative responsibility for the NE and the SE.)
                                   .......    . H .   "• Y'»«*jf.£< LM-^£^ i«t-vriij
6.    Evaluates and analyzes available evidence ahti other information to
      a.    determine whether the petitioner has beefiidentified from historical times
            until the present as an American Indian tribal entity. v *-"-^
      b.    determine whether the petitioner has historically  1'ryed in "a community
            viewed as American Indian and distinct from other populations in the

      c.    determine whether the  petitioner has maintained political influence or
            vother authority over  its members as an autonomous entity throughout
             history.       •         •^•:'-"-- t&'prfy
      •d. •-.  determine'jwhether-thei'petitioner 'ns
                                            ^terminated orrforbl

    ,t V^rites draft technical Report on avaHabie'Mstbncal evkJe
,|8V:n®iVrites draft^umnTaryjijn^er'criteria jpl^idlHlg??
3.  ^Participates in ^rj^pusiB^ stSff- ^eyiieWp^^t^.^d' Pf0 rifles'
                                           an^.^e^rriiMendatio
                                       necessary ib

;ig;3.  ^^royides"tec^nical support TO
": 14.  .Participates :in. jpreparatio.n of ihe Adrnimitratiye Record -

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 Administrative Ana:  •'««?««• v&w-.--~*•< -T^  -c. •   ••-•;.   ;/ -.-.   •
 '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:  -~'*x-&$te.>'^'^ .'•••  p-". :£pr' •-*•' -*v: •  •  .'.   -s  :.i\-.v!i.«
 17.   Provides technical expertise regarding historical issues.
                    WHAT A BAR ANTHROPOLOGIST DOES

 Preliminary Review of Petition for Obvious Deficiencies (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 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 groups'.and is identified
             by others as a distinct Indian community.          fy •••'•>$
       b.    -determine whether the petitioner's members descend from a historical
             tribe or tribes.          <            •               f ";/
       c.    determine Whether the petitioner historically rnaintairfed'aW-feontinues
%. -A^-}:.^ §;,:*o maintain ^prrrial and/brjriforrnai .-political Influencejcff
:..;,.-'   .: '..-•  ";over its'members as an autonomous entity, .
 7.•••','; Writes draft technical report on available anthropological ^
 B.    A/Vrites draft summarytinde/.cif'ite>ia'S!3,7{aiifXb),".and
 ;;9.   participates
                _                  i
  13.    Provides.technical support to Solicitor.-
  14.    Participates in preparation of the Administrative Record for the Court.
  15.    .Serves as ExpertWitness if -called.

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Administrative Ana:
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:
1 7.   Provides technical expertise regarding anthropoldgical issues.  .$-. .„.

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NOV 14 '96  03=03PM USET                                                   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, felt 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-re'X>gnized 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, Houlton 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), Aabama-Coushatta Tribe of Texas, Oneida
  Nation of New York, Aroostook Band of Micmac (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 U8ET 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.

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                     PASSAMAQUOD
                       TRIBAL TRUST
                            LANDS
                 LECE.NO
             for Minor Citit Dirisma
              »•(•«*€ n nm«««"(W«»ii Mijjtcx
                                 IMCOSI. -~«
                                   r»aMim*
                                   IMlM>k<
                                   CM DM*
      UTD !!•• I
ATTEAN   TW  P...,
T 5  R 1  N B K P	
INDIAN ISLAND PENOBSCOT INDIAN RESERVATION

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                    MAINE
                                           INDIAN
                                         TOWNSHIP
                                       RESERVATION
                                    OLD TOWN
                                             fll  RE86RVATION
                                  BANGOR
                     WATERVILLE
    LEWI3TON
PORTLAND
                                         SCALE 18 APPROXIMATE
    Passamaquoddy Tribe Reservations Location Map

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      INDIAN
    TOWNSHIP
 RESERVATION
Grand
Lake
Stream
                       Woodland
                                                          :-
                                                      PLEA8ANT
     Columbia
     Falls
                                           mmic
                                                  14., :.f.1..->. «
                                          SCALE IS APPROXIMATE
     Passamaquoddy Tribe Reservations Location Map

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Y\
TOWN1.  O I P
              A t T  £
                                              T I FM
    TOWN5H1P
                                               *E!
                                                 !*»»»•*
                                                 "•&«•

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  FECTIVE
GOVERNMEN

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                                     PURPOSE OF TRAINING

Point 6 From the Administrator's July 15,1994 Action Directive on Strengthening EPA's Tribal Operations:

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, Assistant and 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.
                                                                                          Interim Final - August 1996

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           GENERAL PURPOSE OF THE TRAINING
o    To assist EPA staff and managers in implementing the EPA Policy for Administration
     of Environmental Programs on Indian Reservations.

o    To provide adequate knowledge about Indian issues for EPA employees to work
     effectively with Native Americans Tribes and Alaska Natives.

o    To develop an EPA group of trainers, who have experienced working with EPA's
     Indian Program, to deliver the training to other EPA employees whose work may call
     upon them to work with Tribes or affect Tribal resources and environmental
     management programs.
                               B
                                                                     Interim Final - August 1996

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                       ????WHATtS A NATIVE AMERICAN???

Indian???    Native Hawaiianmi   Alaskan Native?????

             1)   Federal Definition
             2)   Tribal Definition
                                                                               Interim Final - August 1996

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                      SUMMARY OF TRIBAL 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.    [C]onquest renders the Tribe subject to legislative power of the United States and,
      in substance terminates 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 by express legislation
      from Congress.  Save as expressly qualified , full powers of internal sovereignty
      are vested in Indian Tribes and in their duly constituted organs of government.
                                      D
                                                                          Interim Final • August 1996

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                 PROPERTY-RELATED VOCABULARY
INDIAN COUNTRY
RESERVATION
TRUST LANDS
FEE LAND
ALLOTMENT
RANCHERIA
DEPENDENT INDIAN COMMUNITIES
COLONY
CEDED TERRITORY
                               E
                                                           Interim Final - August 1996

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??????? INDTAN COUNTRY ????????
 IT'S NOT JUST "RESERVATION"!!!!!
                                   Interim Final - August 1996

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             DEFINITION OF "INDIAN COUNTRY, 18 IJ.S.C. SECTION 1IS1

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 which includes Indian reservations, dependent communities, Indian allottment
lands, and trust lands.
                                                                                    Interim Final - August 1996

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       DEFINITION OF "INDIAN COUNTRY, 18 IJ.S.C. SECTION 1151 - Continued

It is defined at 18 U.S.C.A. Sec. 1151 as follows:

[T]he term "Indian Country", as used in this chapter, means 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 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 right-of-way running
through the same.  Thus, Indian Country includes Indian Reservations, dependent Indian
communities, Indian allotment lands, and trust.
                                            Gl
                                                                                   Interim Final - August 1996

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                                  Chronology
 1608- 1830
Earliest Treaties
1830- 1850
Indian Removal Act
'1850- 1871
Reduction of Indian Land Base
1887 - 1909
Allotment Era
1934
Indian Reorganization Act
1950- 1970
Termination: An Old Policy With A New Twist
 1970 to Present
Self-Determination Era
                                         H
                                                                             Interim Final - August 1996

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            UNDERSTANDING NATIVE AMERICANS
A. Native Americans are Not a Homogeneous Group.
B. Indian Tribes Have Maintained Significant Government Powers.
C. There is a Unique Status of Tribal members With the Federal Government.
D. Native Americans Pay Federal Taxes.
E. Tribes Receive Services From the Federal Government.
                                                                     Interim Final-   -t 1996

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                   WHY IS SOVEREIGNTY SO IMPORTANT??????
o   It ensures self-government, and preservation of Tribal culture, and control over the
    future of the Tribe.

o   It distinguishes Indians as a "political" group rather than simply a racial or ethnic
    minority.
                                                                              Interim Final • August 1996

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                THE FEDERA1 ^INDIAN TRUST RELATIONSHIP

1.    The Federal trust responsibility arises from Indian treaties, statutes, executive orders, and
     historical relations between the United States and Indian Tribes.

2.    Overall, the trust responsibility relates to the United States' unique legal and political
     relationship with Indian Tribes.

3.    The trust relationship relates directly to the development and implementation of Federal
     policy.
                                             K
                                                                                    Interim Final - August 1996

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THE FEDERAL-INDIAN TRUST RELATIONSHIP- Tnnt.

 4.   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.

5.    The trust responsibility includes the protection of the sovereignty of each Tribal government.

6.    Congress has the power to define the scope of the trust responsibility.
                                           Kl
                                                                                  Interim Final • August 1996

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                      WHY ARE TREATIES SO IMPORTANT?????
o    Treaties are significant to all Tribes, even 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.

o    Treaties support the concept of inherent sovereignty.

o    They are the law of the land.

o    Treaties protect inherent sovereignty rights held by Tribal governments including protecting
     land, resources, hunting, fishing and gathering rights, and governmental powers.
                                                                                   Interim Final - August 1996

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                            MORE ON TREATIES:

"The words "treaty" and "nation" are words of our language, selected in our 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."

Worcester v. Georgia, 31 U.S. 515, 559 (1832)

                                                Chief Justice John Marshall, 1832
                                       M
                                                                          Interim Final - August 1996

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        FEDERAL AND TRIBAL POWERS OVER INDIAN COUNTRY
GENERAL RULE:




Generally, ambiguities within Indian treaties are interpreted in favor of Indians.
                                      N
                                                                       Interim Final - August 1996

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                     WHAT IS .TIJRISmrTIQN?????
Jurisdiction generally relates to those powers that a government has over people
and property within a distinct geographical basis.
                                     O
                                                                         Interim Final - August 1996

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                              EPA INDIAN POLICY
o The President published a Federal Indian Policy on January 24, 1983, supporting the primary role
  of Tribal Governments in matters affecting American Indian reservations. The 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 Tribal Governments on a "government-to-
  government" basis.

o In 1984, EPA issued its "Policy for the Administration of Environmental Programs on Indian
  Reservations". The Policy recognizes the government-to-government relationship between the
  Agency and Tribal governments and recognizes Tribes as the most appropriate party for
  regulating Tribal environments where they can demonstrate capability to do so.

o EPA reaffirmed its Indian Policy in 1994.
                                                                                 Interim Final - August 1996

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                           RPA TNDIATWOUCY-ront.

o In April 1994, President Clinton issued the "Presidential Memorandum on Government to
  government Relations with Native American Tribal governments."  Among other things the
  Memorandum specifically States the following:

        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.
                                           PI
                                                                                 Interim Final - August 1996

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           NINE PRINCIPLES OF EPA's 1984 INDIAN POLICY

1.  Work with Tribal governments on a one-to-one basis

2.  Recognize Tribes as primary parties for setting standards, making policy, and managing
   programs for a reservation.

3.  Take affirmative steps to encourage and assist Tribes in assuming regulatory and program
   management.

4.  Take appropriate steps to remove existing legal and procedural impediments.

5.  Assure that Tribal concerns and interests are considered whenever EPA's actions or decisions
   affect reservation environments.
                                                                             Interim Final - August 1996

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NINE PRINCIPLES OF EPA's 1984^fniAN POLICY- Cont.


6.  Encourage cooperation between Tribal, State and local governments.

7.  Work with other federal agencies to enlist interest and support in cooperative efforts.

8.  Strive to assure compliance with environmental laws on Indian reservations.

9.  Incorporate these Indian policy goals into EPA planning and management activities including
   budgeting.
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                                                                            Interim Final - August 1996

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 EPA STATUTES WHICH HAVE BEEN AMENDED SPECIFICALLY TO ALLOW FOR
                 EPA AUTHORIZATION OF TRIBAL PROGRAMS


o    Safe Drinking Water Act, 1986

o    Clean Water Act, 1987

o    Clean Air Act, 1990
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                                                                            Interim Final - August 1996

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                             GAP-FILLING LEGISLATION
In several instances, EPA has reasoned that even though Congress hasn't specifically provided for




Tribal assumption of certain 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
                                                                                  Interim Final - August 1996

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                                OTHER LEGISLATION...
In addition, three other EPA statutes allow for a limited Tribal role similar to the State's role.




These Are:




    Emergency Planning and Community Right to Know Act




    Federal Insecticide, Fungicide and Rodenticide Act




    Comprehensive Environmental Response, Compensation and Liability Act
                                                                                    Interim Final - Augu?' ' 996

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                                 KEY RECENT EPA INITIATIVES
               In February 1994, Administrator Browner established a Tribal Operations Committee (TOC) to
               improve communications and build stronger partnerships with Tribes.
o              In March 1994, the Administrator reaffirmed EPA's Indian Policy which recognizes the
               government-to-government relationship and Indian Tribal governments as the most appropriate
               parties to manage Tribal environments, where ever Tribes demonstrate ability to do so.


o              In July 1994, Administrator Browner issued an Action Plan for the Agency's Indian Program
               which outlined a number of steps for immediate implementation throughout the Agency.
o              In October 1994, the Administrator established the American Indian Environmental Office
               (AIEO) to oversee implementation of the Agency's Indian Policy and ensure that all EPA
               Headquarters and Regional Offices implement their parts of the Indian Program in a manner
               consistent with EPA's trust responsibilities.
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          EPA'S THREE BASIC IMPLEMENTATION STRATEGIES
1.    Capability Building
2.    Program Authorization
3.    Direct Implementation
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                               CAPABILITY ISSUES
Capability building entails providing Tribes with grants, information, technical assistance,
and infrastructure to enable Tribal administration of environmental  programs.
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                                                                                Interim Final - August 1996

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                        GENERAL ASSISTANCE GRANTS PROGRAM
EPA has assisted Tribes with meeting their capability requirements through a variety of grants available under
specific programs.  One significant source available for Tribal program capability building is through the General
Assistance Grant Program (GAP).

The objectives of the Program are to provide funds to federally-recognized Tribal governments to build capacity
to administer environmental programs and to provide technical assistance from EPA in development of multi-
media programs.
                                                                                               Interim Final - August 1996

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                                 ASSISTANCE GRANTS PROGRAM - Cont.




Capability building activities eligible for funding under GAP include:




1. Planning




2. Hiring staff




3. Monitoring




4. Assessing resources




5. General infrastructure development
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                                                                                                Interim Final - August 1996

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                         TRIBAL/EPA ENVIRONMENTAL AGREEMENTS
o  As designed by EPA in consultation with Tribal 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.
o  These Agreements are intended to assist the Tribes and EPA, in developing a multi-year plans for Tribal
   assumption of environmental programs and EPA direct implementation of environmental programs in Indian
   country.
o  The Administrator's July 1994 Action Plan for the EPA Indian Program makes TEAs the cornerstone from
   which Regions and National Program Managers are to build their Indian Programs.
o  On March 20, 1995, AIEO issued a Template providing flexible guidance on developing TEAs for the Regions
   and Tribes.
                                                                                            Interim Final - Augi'- '996

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                    Treatment in the Same Manner as a State - Eligibility Requirements

As required by some statutes, EPA has established a process by which Tribes may "apply" for eligibility under

various programs. The criteria are:


           The Tribe must be federally-recognized.

           The Tribe must have jurisdiction over the territory in question.

           The Tribe must have or be able to exercise substantial governmental powers.

           The Tribe must have the financial, physical and human resource capability to effectively implement a
           program
                                                                                              Interim final - August 1996

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                         WHAT IS THE "TAS SIMPLIFICATION RULE"?
o      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.

o      If the Tribe does not have capability, it must have a plan for aquiring capability over time. This is
       required because each program requires different skills and activities necessary to provide protection
       that meets the requirements of the staturues and regulations.
                                                AA
                                                                                              Interim Final - Augu«t 1995

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                         TRIBAL OPERATIONS ACTION MEMORANDUM


In July 1994, Administrator Browner issued a Memorandum outlining steps for prompt implementation
throughout the Agency in an effort to strengthen public health and environmental protection in Indian country and
to improve EPA's government-to-govemment relationship with Tribes.  These action items are as follows:


1. Establishment of Tribal/EPA Environmental Agreements (TEAs)

2. Establishment of Program and regional Work plans based on TEAs

3. Implementation of Management and Compliance Activities

4. Review of Program and Regional Indian Program Organization — and where necessary modification of the
   organization to strengthen Tribal operations
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                                                                                            Interim Final • August 1996

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                     TRIBAL OPERATIONS ACTION MEMORANDUM - Cont.






5.  Insurance that an Effective EPA Tribal Liaison Capacity Exists to Provide Direct Field Assistance to Tribes.




6.  Provision of Training to EPA managment and Staff on How to Work Effectively with Tribal Governments




7.  Enhanced Communications with Tribes




8.  Use of Available Discretion to Consolidate Issuance and Administrative Requirements of Grants




9.  Investment of Resources into Tribal Operations
                                                BB1
                                                                                             Interim Final - Augu»« 1996

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                               TRIBAL PROGRAM AUTHORIZATION
      TRIBAL ASS1IMPT10NOF  PRIMACY FOR FEDERAL ENVIRONMENTAL PROGRAMS
o     Tribal governments, by virtue of their Tribal sovereignty, can exercise Tribal authority to regulate their own
      affairs as well as activities occuring within their territory.

o     EPA acting under 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 establish and enforce its own or Federal environmental standards.
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                                                                                               Interim Final - August 1996

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                            TRIBAL PROGRAM AUTHORIZATION- Cont.


o     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.    establish an administrative body which can ultimately seek Tribal administrative or judicial
                 sanctions to enforce the Tribal law.
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                                                                                                 Interim Final - August 1996

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                                  DIRECT IMPLEMENTATION

EPA Taking Action Itself

       Point # 3 of 1984 EPA Indian Policy:

     ".. .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."
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                                                                                         Interim Final - August 1996

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