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
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WHAT
American Indian Culture
Session
Purpose and Introduce
Panel
Cultural Presentations
Interactive Discussion/
Q&A With Panel
LUNCH
Protocol For Working With
Tribal Governments
(Including Experience and
Examples From Panel)
EPA Indian Policy
Exercise and Group
Discussion
Tribal - EPA Agreements
(TEAS)
BREAK
Grants/ PPG' s
Building Tribal Capacity
Direct Implementation
Reading .
Wrap Up & Evaluations
END TRAINING
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
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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).
Interim Final - August 1996
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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
Interim Final - August 1996
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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
ซ.l.tซ 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
Interim Final - August 1996
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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.
7 Interim Final - August 1996
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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
Interim Final - August 1996
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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.
9 Interim Final - August 1996
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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
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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
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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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Training Seminal
August 1996
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s.
-------
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.
-------
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
-------
FEDERALLY RECOGNIZED I N D. I A N TRIBES
-------
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
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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
-------
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)
-------
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)
-------
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.
-------
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)
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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)
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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)
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ฐoints 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)
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c. Explanation of the validity of Treaties, today.
U.S. Courts have abided by principles of International Law when
interpreting treaties.
Thus, any ambiguities are usually interpreted in the favor of the
weaker party. In the case of Indians, because the negotiations
were often held in foreign languages, such as English, and the
cultural traditions were different, such as the concept of land
ownership, the courts have traditionally given the Indians the best
possible interpretation.
(These points can be found at: the Participant Manual, page 30 - 32)
A breach or violation of treaty terms does not nullify the entire treaty.
Many people unfamiliar with Indian history and Indian law fail to
support Indian treaty rights because they believe that a breach or
violation of any part of the treaty on the part of the United States
has somehow nullified them.
(These points can be found at: the Participant Manual, page 32)
Generally, Congress must specifically and directly repeal a treaty by
legislation to invalidate it.
Age alone has not invalidated treaties.
d. Current significance of Treaties.
Ask Trainees what significance they feel the Treaties hold today.
Discuss, and also emphasize the following points:
Treaties are significant to all Tribes, even to those Tribes that did not
enter into treaty relations with the federal government, because they
acknowledge the sovereign nature of Tribal governments and reserve for
Indian Tribes critical rights and access to lands and resources.
First, they established a pattern of legal and political interaction
based on negotiation between two sovereigns.
Second, treaties form the foundation of international as well as
federal Indian law affecting all Tribal governments.
Finally, even though some Tribes did not formally enter into a
treaty with the United States government, subsequent dealings
through executive orders or legislation generally have been based
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on a series of consultations and negotiations between a Tribe and
the federal government, similar to the treaty process.
Treaties are still the "law of the land." In 1979, the U.S. Supreme Court
ruled in Washington v. Washington State Commercial Passenger Fishing
Association, that "A treaty, including one between the United States and
an Indian Tribe, is essentially a contract between two sovereign nations..."
Treaties protect inherent sovereign rights held by Tribal governments,
including land, resources, hunting, fishing and gathering rights, as well as
governmental powers.
(These points can be found at: the Participant Manual, page 32)
e. Ask students to discuss when the Tribes in their own Regions entered into
Treaties.
f . Today, although the United States no longer makes treaties with the Indian
Tribes today, the federal government continues to consult with Indian Nations
and to work on a govemment-to-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)
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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.
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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)
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CHAPTER THREE: OVERVIEW OF ENVIRONMENTAL
PROTECTION ON INDIAN LANDS
1. U.S. Environmental Protection Agency (EPA): Overall Mission and
Implementation - Briefly discussed at beginning of course, now go into more
depth.
2. EPA's Policy for the Administration of Environmental Programs on Indian
Reservations (Indian Policy).
Read key sections of the Indian Policy Statement to the Trainees. Have
Trainees discuss how the Policy Statement is applicable in everyday
dealings with the Tribes located in the Region.
(These points can be found at: the Appendix)
(Overheads P & Q)
In-Class Exercise:
Break participants into nine groups.
Each group review one of the nine principles of the Indian Policy.
At the conclusion of 20 minutes (suggestion:), have a
spokesperson from each group, report to the class the implications
the principle may have on everyday work.
Additional points:
Issued in 1984 and reaffirmed in 1994
Recognizes the government-to-government relationship between
the Agency and Tribal governments
Recognizes Tribes as the most appropriate party for regulating
Tribal environments where they can demonstrate the authority and
capability to do so.
(This can be found at: the Participant Manual, page 38)
3. EPA serves federally-recognized Tribes, but in some instances may also
provide funding and technical assistance to non-federally recognized Tribes
through the Environmental Justice program.
(This can be found at: the Participant Manual, page 38)
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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
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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.
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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)
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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.
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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)
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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 "govซrnment-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 ปr 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.
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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:
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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
ป 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. ' ' -ป
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.
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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 SoyjCซnoU 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
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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
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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
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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
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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*dซltnSoy/CซnolซM(onpซpซrttiซ
contain* ซ 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
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TEMPLATE FOR EPA/TRIBAL ENVIRONMENTAL AGREEMENTS
March 17, 1995
PREAMBLE/INTRODUCTION
On July 14, 1994, the EPA Administrator issued an
Action Directive to the Agency which called for prompt
action under nine specific areas that would enhance Tribal
environmental operations. - One such area was the development
of Tribal specific "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- Thiฃ?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.-
-------
NT iacarv appMotanom tor mn haป11 Cain>. wte lads th*ป
f :Cortr, and: to: all. of: yott vto vorkadtซo= dlligairtly bir
Wo ekgroupr Rapro*aatativซป
Rซ3lonal. 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&Committaaซ
of; ConซjrrMซional- and; Lagialativa* Affairs (Karthac Woffordji
-------
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
tribeซ> 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* oฃr
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 ปซvfny +ป!**
a) lowing;. undarr- aach: atatuta- Koraovarrr tha* facfc *ป
mofc tha.- "raeognition"- orr "govarniantal function*?-
u.niarr thaปClaattXir:Act:oc-aitna3rot thaปWatajrActr.vill.
utabliah: ป^ป^- it maata. tnoaa- raquiramanta: undat all. thra
and/or*
regarding- tna-MtetM*ซhป^te- of ป
^ afiadietrion-,
Bacauaa* a tribaปmay hava* juriadictiott over; and. capabili
tcr carry out*, cartain. activitiaa* (A^sUj. protactioa: of: thซr(
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*
ซnch- tribal: program*. .'
Tha- portion- of. axiating: r agulationa: on juriidictional;
cuitarmination- undarrvhich-govarnmanta:.coamantr on- tribal.
.3 iir icdiction- wiir bซ.-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*; ซnซuraa* thafca- cloaag-analyaia; ofc
lagaL baaia* ofr.a^triba^ a juriidlction^vill T>ccnr: baf eras
ngly t a^-aaparatai.- '' . .
riirisdictional raviavc iซ: not naadadt tor varify thafc a-
iitiaz ซtatutory ป r quiasamanfev . and- la. tharaf era* Ttnllnat ad-T f orr all.
]xrogramas undarrthaa8aiaปDrin)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 iaป 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
:ซt 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
ritlฃ tto PT^""^ ot thtelnteriorr although: it may, in:
conmtLtr
isdictionaii authority-.
malcinor a.dwsisionr as* to: triba
rซซolution: of: tribal
r.!**^
prograซ>. -it: vill. ordinarily
program unlw* a sutaequenfc
ซ*
ragulatfc actlvitteป J^tJ^ !^irปetiviti.2L in anothec mediums.
bliahi. its* jurisdictiom overr acttvitiesi' in. anpcuT- Boซu.uซ5.
TTซM.^4.hซrnซซratsprovai. 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
-------
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).
partFCaWomla
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.
*
-------
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 ซ*rปnimiant 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 ซddjn?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); ง 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, ป-
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.ซtribe 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-Fซderal -
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
-------
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 งง122.44,124*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 ง 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 -:;.:ซ
final NPDES rulejttSaFR67967. ..-;.
- (December<10cl993) discusses thi* new
pro vision in-mora--deptb>'<. .-.-- ซ-. ..
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 ง 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 ซOS(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 '
conslderซd- -'
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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. ' ;' ' ' .-." \
ง123,1 [Amended],
2. Section I23.1(h) is amended by
removing the phrase "treated as a
State."
ง12&21 (Amended]
3. In ง 123.21 paragraph (a)(l) is
amended by revising the phrase
"eligible for treatment as a state in
accordance with ง 123.33(e)" to read "in
accordance with ง 123.33(b)".
4. In ง 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
"ง 123.33(6)" to read "ง 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 ง123.32 paragraph (d) \
introductory text is amended by revising
thephrase "The statement shall .-'.
include" to read "The statement should
include.".
14. In ง123.32 paragraph (d)(l) is
amended by revising the words
"including, but not limited to,1' to read
"which may include."
15. uง 12342 paragraph (6) is ,
. amended by revising the phrase "a..: .
Tribal request for treatment as a State"
Administrative practice and c .
irocedura^ Intergovernmental relations, -.
(Amซnde
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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. IAง 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 ง 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 ง 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 ง 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 ง 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 ง 131.8 paragraph (b)(2)
introductory text is amended by revising
._ the word "shall" to read "should"
' - 9. In ง131.8 paragraph (b)(3> -
introductory text is amended by revising
the word "shall" to read "should-.
10. In-ง 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. mง 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 ง131.8 paragraph (b)(4)(i) is
^amended by revising the phrase . '
'"including, but not limited to" to read
"which may tadude". - :.
15. In ง 131.8 paragraph (b)(5) is . -
amended by revising the phrase
"request for treatment as a State," to
. read "application".
16. In ง 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 ง13 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 ง 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 ง 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- ซnd
300J-9.
S14Z2 (Amended] \
2. In ง142.2 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 ง 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 ง 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.:; -..
ง142.72 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:
. . . ซ. '..._.
(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 ง 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 ง 142.76 paragraph (b)
introductory text is amended by revising
the word "shall" to read "should"
11. In ง 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 ง 142.76 paragraph (d)
introductory text is amended by revising
the word "shall" to read "should"
13. In ง 142.76 paragraph (d)(l) b
amended by revising the words
"including, but not limited to" to read
"which may include"
14. In ง 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 ง 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;thiปsectian). -..;--. .
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Federal Register / VoL 59. No. 239 /.Wednesday. December 14. 1994 / Rules and Regulations64345
1142.78 (Amended]
16. The heading of ง 14Z78 is
traatneniAsaState'V .
17. In ง14178 paragraph(a) is
intended by removing the words "for
reatment as a State submitted pursuant
:oง14i76"
18. In ง 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 ง 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 ฃ2 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 .Tribeซ*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 .ง 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 งMS.S6 paragraph (b)
introductory text is amended by revising
the word "shall" to read "should" .
10. In ง 145.56 paragraph (c] iซ
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: .
ง145.56. Request by an Indian Tribe tore
determination ot ซ5g(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 (ง 14S.76(c)
and(dM6)J. :
S14&58 /Amended]
IS. The beading of ง145.58 is
amended by removing the phrase "for
treatment es a State".
16. in ง 14S-S8 paragraph {a}k.
amended by removing the phrase "for
^treatment as a State submitted pursuant
to ง145.56".
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 -
ง 145.52, the Indian Tribe is then
eligible to apply/fbt" to read MA tribe
that meets the requirements of ง 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 ซt sec- . '
............-... ; M . .y.'.'.
Subpart G-QlfliWซ 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"
f233jfiซ 'Oatarmlnattoa of Tribal
5. The heading of ง233.61 tsxevisod
to read as set forth above.
6. In ง 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 ง 233.61 paragraph (d)
introductory text is amended by revising
the word "shall" to read "may".
.1 1. In ง 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 byซdding.lhe words "for
eligibility or" oetweott "basinet the-
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.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 ง 233.62 paragraph (a) is
amended by removing the phrase "for
treatment as a State".
16. In ง 233;62 paragraphs (b). (c). (d).
and (e) are removed, v '- ; . . '. '
17. In'ง 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: /.-. ". *
ง601.11 -[Amended] ;; - .
2. In ง501.11 (a)(l) remove ".
3.-In ง 501.11(b)(2) remove the phrase
"for treatment as a State" both times it .
appears and revise the text "ง 501.24(e)"
toread"ง501.24(b)".
.ง501.12 [Amended]
4. In ง 50i.l2(g) remove the phrase
i "for treatment as a State" and revise the
text "ง 50U4(e)" tp read "ง 501.24(br.
ง501.22 [Amended]
5. The heading of ง 501.22 is amended
by revising the phrase "for treatment of
Indian Tribes as States" to read "for
eligibility of Indian Tribes."
6. In ง 501.22 paragraph (a)
introductory text is amended by
removing the phrase "a State for
purposes of making the Tribe."
7. In ง 501.22 paragraph (a)(4) is
amended by removing the last two
sentences.
ง501.23 [Amended]
8. The heading of ง 501.23 Is amended
by removing the phrase "for treatment
as a State".
9. In ง 501.23 the introductory text is
amended by removing the phrase "for
treatment as a State." ."-'
- 10. In ง 501.23 paragraph (b)
introductory text is amended by revising
the word VshalT'to read "should."
- . 1 1. In ง501. 23 paragraph (c) is
amendedfy revising the phrase "a copy
of all documents" to read "copies of
4hoป documents" eM by jevisulg the'
phrase "support the Tribe's assertion"
to read "the Tribe believe* are relevant -
to Us assertion;" .'-. .V; ' p
12.inง 50.1.23 paragrap&Id) *V- ". .; *
introductory-text i&amepdedib'y revising
13; In ง501.23 paragraph {dXD'is
amended by revising the words
"including, but-not limited to" to read
"which may include."
14. In ง 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 ง 501.23 paragraph (f) is revised
' to read as follows:
ง501.23 Request by an Indian Tribe for a
detemUnatlonofeltfllwnty. . .
"' . '! '*.'" .". '.*''.ซ: >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. . " ' ;
ง5Q1.24 [Amended]
16. The heading of ง 501.24 is
'amended by removing the phrase-"for
treatment as a State."
17. In ง 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
(ง 675.20(a)(2)). Regulations under
ง675^0(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
ง 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 '
-------
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
-------
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. nthซ 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~"ปtปซr
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.
-------
Federal Register Vol. 59. No. 56 Wednesday. March J3. 1994 Rป;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
-------
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 35STATE AND LOCAL
ASSISTANCE
Subpart AFinancial 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:
ง35.105 Definitions,
ซ
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.
ง35.115 [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".
ง35.155 [Amended]
4. In ง 35.155 paragraph (c) is
amended by revising the phrase "Indian
Tribes treated as States" to read
"eligible Indian Tribes".
ง35.250 [Amended]
S. Section 35.250 is amended by
revising the phrase "Indian Tribes
treated as States" to read "eligible
Indian Tribes."
ง35.255 [Amended]
6. Section 35.255(b) is amended by
revising the phrase "Indian Tribes
treated as States" to read "eligible
Indian Tribes".
ง35.200 [Amended]
7. In ง 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".
งง 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)".
งง35.350 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".
ง35.400 [Amended]
10. Section 35.400 is amended by
revising the phrase "Indian Tribes
treated as States for" to read "eligible
Indian Tribes under".
ง35.1605-0 [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)".
ง35.1620-1 (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".
ง35.415 [Amended]
13. Section 35.415(a)(l) is amended
by removing the words "Treatment of
Indian Tribes as States".
ง35.450 [Amended]
14. Section 35.450 is amended by
revising the, phrase "Indian Tribes
treated as States for" to read "eligible
Indian Tribes under".
ง35.465 [Amended]
15. Section 35.465(a)(l) is amended
by removing the words "Treatment of
Indian Tribes as States".
PART 130WATER QUALITY
PLANNING AND MANAGEMENT
1. The authority citation for part 130
continues to read as fojlows:
Authority: 33 U.S.C 1251 et. seq.
ง 130.1 [Amended]
1. Section 130.l(a) is amended by
revising the phrase "Indian Tribe
-------
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 [Amซndซd]
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 ซm|
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.
-------
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
-------
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 xปny^
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.
-------
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
-------
FECTIVE
GOVERNME
Append
onmental ProtecMoJti
raining S eminar
gust 1996 ; >
J
-------
APPENDIX B
EPA Indian Program Information/Contact Sheets f
T"
New England Indian Workgroup (NEIWG)
r
Spencer Phips Proclamation (1755) """
i
Kezogmomna AlaimihotIndian 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
-------
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
-------
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
-------
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 ฉa|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 ฎaftOp
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 TDVซ*t-\
3. OBillarD, Seer. sซ mips.
GOD Save the KING.
B OSTONi Primed by Jtlm Dn>ferl Printer to i lis Honour the Lieutenam-Govcrnovir and Council.
-------
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
-------
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-
-------
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.
-------
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.
-------
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.
115605ฐ31vol. 2 39
-------
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.
-------
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.
-------
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]
JONป 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).
-------
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 Sป 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
-------
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.
-------
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
-------
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
-------
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
-------
lawr-findjjobe adequate com
services rendered "and resukSo
Sation for
services reno'efed'and re$uksobtained, con-
sidering the contipgem nature~ofrhซ- 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
-------
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:
"ง1162. 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.]
-------
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 bซrซlivered 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 IINDIAN 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
-------
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 IITHE INDIAN
EDUCATION ASSISTANCE ACT
SF.C. 201. This title may be cited as the
"Indian Education Assistance Act."
PART AEDUCATION 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
-------
Sec.
1701
1702
1703.
1704.
(b)
(c)
(d)
1705.
1706.
1707.
1708.
1709.
1710.
1711.
1712.
1715.
1716.
iyUNUIAJN CLAIMS SETTLE-
MENTS WITH STATES
SUBCHAPTER IRHODE ISLAND INDIAN
' CLAIMS SETTLEMENT
PART AGENERAL 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 BTAX TREATMENT
Exemption from taxation.
(a) General exemption.
(b) Income-producing activities.
(c) Payments in lieu of taxes.
Deferral of capital gains.
594
Sซc.
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
-------
1/24. "*: maian Claims Settlement and Land Acquisition hunds in the
;d States TreasuryContinued
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
ง 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
-------
CJ.S. Indlant {} 19, 28 el ieq.
PART BTAX TREATMENT
ง 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, ง 201, as added Pub.L. 96-601, ง 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, ซee 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.
ง 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. ง 202. as added Pub.L. 96-601, ง 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 IIMAINE INDIAN CLAIMS SETTLEMENT
ง 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
ฐ0
-------
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. ง 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 Uglilซelปe 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 <ฃ=>I05.
Library Reference*
C.J.S. United Slates งง 143. lit.
ง 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, ง 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.
ง 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, ง 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. (ป)(!), 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 ฎ=>IO.
Library References
C.JS. Indians {ง 19. 28 el seq.
ง 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 ซซ4t-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
-------
.. .,,*j U,w nut >.ซ{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 ง1000 et seq.
United States ซ=>II3.
Library References
CJ.S. United Stales }} 1)5. 156. 160 ei
ง 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
-------
,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 ^^
-------
....... _. _. _.,ป 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. ง 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 ซ=>27(2), 32. 38(2).
C.J.S. Indians jj 8, II, 16 et seq., 67 et seq.,
79.
et seq.
ง 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. ง 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 $=ป32.
Library References
CJ.S. Indians ง} II. 67 et seq.
ง 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 ง 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 ง 1918(ปHc)].
(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. ง 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. ง 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. ง 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, ง 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 งง 8, 16 el seq.
ง 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.
ซ
(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. ง 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.
ง 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. ง 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.
ง 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, ง 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.
ง 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, ง 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.
ง 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 ซ=ป 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, ง 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.
ง 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, ง 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.
*
ง 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 19INDIAN CLAIMS SETTLE-
MENTS WITH STATES
SUBCHAPTER IRHODE ISLAND INDIAN
CLAIMS SETTLEMENT
PART AGENERAL 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 BTAX 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 TreasuryContinued
._ (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 IRHODE ISLAND INDIAN
CLAIMS SETTLEMENT
PART AGENERAL PROVISIONS
ง 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 ซwt 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. ง 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 งง 143, 155.
ง 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, ง 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.
ง 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, ง 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.
ง 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, ง 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 ซ=>IO. C.J.S. Indians ง} 19, 28 et seq. .
ง 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, ง 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 งง 19. 28 el seq.
ง 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, ง 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.
ง 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 conveyปnct ot settlemsnl iปnciซ, ซn<
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, ง 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 {ง 19, 28 et seq.
ง 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. ง 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 ซ=ป27(2), 32, 38(2).
CJ.S. Indians 5ง 8, 16 el teq.. 17, 67 el seq..
79.
ง 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, ง 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 ซeq.) 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.
ง 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, ง 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.
ง 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, ง 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 ง 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. ง 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 งง 19, 28 el seq.
PART BTAX TREATMENT
Internal Revenue .1I88.
SUBCHAPTER IIMAINE INDIAN CLAIMS SETTLEMENT
ง 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.
ซ
(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, ง 201, as added Pub.L. 96-601, ง 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 ซ=>I81.
Library References
CJ.S. Taxation ง{ 212, 258.
ง 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. ง 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 VMASSACHUSETTS
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 VIFLORIDA 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 IXMOHEOAN 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 IRHODE ISLAND INDIAN CLAIMS SETTLEMENT
PART AGENERAL 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
-------
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 ปhiH 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.
ง 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 IIMAINE 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
-------
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
' " ปr ปป*! 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 yซ.
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 reiปu*.& _ ~
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*ปif,
, 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. ง 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 ปny 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. ง 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. ง 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.)
-------
SUBCHAPTER VMASSACHUSETTS INDIAN LAND CLAIMS SETTLEMENT
ง. 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* mป 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
, !ป.. IB, 198U -TW, Actlerซet
'i ป^ ,
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 Uuป aection]
ali take effect upon the date on may be died u the Wampanoaf Tribal Council
Indian CUIma Settlement Act
OJi iccuoni ซ -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 ซป10.
Public Landa ซปS.
LIBRARY REFERENCES
CJJS. Indiana II 4 et teqM 80, 67 et aeq.
CJJ3. Public Landi I 31 et ซeq.
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 $2ฃ60,000 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.
----- ซซ* \
I
Effective Dal*
-------
Public Lands ซ-3.
LIBRARY REFERENCES
CJS. Indian* I 80. 67 et seq.
CJS. PubHe Lands | 87 et seq.
?71c.
Conditions precedent to Federal purchase oซ
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 ซ-10,
PubUc Lands ซป3.
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 ป._. _
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 jซ^al
-------
(c) Acquisition of additional landa < (
The Secretary shall expend, ปt 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 ซป10.
Public Lands ซ
LIBRARY REFERENCES
CJA Indians I 67 et seq.
CJJS. Public Lands I 87 et seq.
ง 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 MปM!nnrhHซปปtB MIP ปnwn ซ' fSiv uซ,,i
(b) Subsequent holder bound to same terms and conditloni
Any tribe or tribal organization which acquires any settlement Urn. ซr ^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 "ป>ซ For complete dasaUlcation of this Act to
requirement* of the Massachusetts Constitution. ฐ* 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 ซป10.
Pubhe Lands ซปS.
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
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(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 Mป rf.-b f?^L out aa a note under
ซซ<ป> '771 of thla title.
Indiana *ป10.
Public Lands ซ-3.
LIBRARY REFERENCES
CJS. Indiana I 8, M et aeq.
CJJS. Public Landi | 87 et aeq.
ง 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.)
-------
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* ซ-10.
Public Undi ซ-S.
LIBRARY REFERENCES
CJS. Indian* I IS et ปeq.
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 ปection
ll(a) of PubJj. 100-46, tet out ti a noU nnder
section 1771 of thli tiUe.
Indian* ซ-10.
PubHe Land* ซ3.
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)
-------
ฐ5 ง1775b
(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
'" " " -'"- "-> * ซซซ,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.
* * ซft
>4, 108 SUt 3802.)
(Pub.L. 103-377. i 4. <
Reference! In Text
^S^Jtfffis1^-
"*^ '"22: Mfฃrซnerally to ehapur
of land, to the United Bfe*ป 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 ซnd 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 FUTUREFINAL 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, ง 8, which permits federal
regulation of navigable streams, and the Property Clause, Art. IV, ง 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. ง 51), as amended
by Act of July 9, 1870, ch. 235, I 17. 16 Stat. 217, 218 (codified at 43 U.S.C. ง 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-
ซand 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, งง 15-19.
"Ch. 107,19 Stat 377 (codified as amended at 43 U.S.C. งง 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. ง 1, 19 Stat. at 377 (codified as amended at 43 U.S.C. ง 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, ง 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 ง 28.55 (A.
Casner ed.) (Boston: Little, Brown & Co., 1954); 1 WATERS AND WATER RIGHTS, supra note 3, งง 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 Gซn. 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
;'*-"?ป. ? .' **. ป'ซ;,*'-ป 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
-------
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."
-------
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*ปซn 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 oซ"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*--) :ซ'..'. -''
- ''.- ;.,...-.'. '&'< '-'>'-::^\:i ปV'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
-------
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;. ซ'.Vfi.l.ฃC|::-- . rV/f/!'. -..-.(;:,..; ! \. !ฑ-\ ''"- .Vijix _::'',_ .- ^.^rX'i -:.l-.^+s
-------
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.
-------
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/งฃ,,;i :c..\
13. Finalize proposed finding -: " " '- '" ''"
Proposed Finding: ". &'> y.''.-io*-;t. >' .-.*. .'ป/^j^n:; 5fc\-:v:>*^'-c^aviJSฎ*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^"''::ง-:
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
-------
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): .. - ซ .
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. ?!'ซ;-. -
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. ^^:-/ฅ^- ''''"'' ''*' -"'^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
-------
information arising from cases in assigned geographical area. (Genealogists
currently have administrative responsibility for the NE and the SE.)
....... . H . " Y'ปซ*jf.ฃ< LM-^ฃ^ iซt-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:nฎiVrites 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 -
-------
Administrative Ana: 'ซซ?ซซ 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-". :ฃpr' -*' -*v: .'. -s :.i\-.v!i.ซ
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^-}:.^ ง;,:*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.
-------
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. .$-. ..
-------
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.
-------
PASSAMAQUOD
TRIBAL TRUST
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INDIAN ISLAND PENOBSCOT INDIAN RESERVATION
-------
MAINE
INDIAN
TOWNSHIP
RESERVATION
OLD TOWN
fll RE86RVATION
BANGOR
WATERVILLE
LEWI3TON
PORTLAND
SCALE 18 APPROXIMATE
Passamaquoddy Tribe Reservations Location Map
-------
INDIAN
TOWNSHIP
RESERVATION
Grand
Lake
Stream
Woodland
:-
PLEA8ANT
Columbia
Falls
mmic
14., :.f.1..->. ซ
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Passamaquoddy Tribe Reservations Location Map
-------
Y\
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-------
FECTIVE
GOVERNMEN
-------
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
-------
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
-------
????WHATtS A NATIVE AMERICAN???
Indian??? Native Hawaiianmi Alaskan Native?????
1) Federal Definition
2) Tribal Definition
Interim Final - August 1996
-------
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
-------
PROPERTY-RELATED VOCABULARY
INDIAN COUNTRY
RESERVATION
TRUST LANDS
FEE LAND
ALLOTMENT
RANCHERIA
DEPENDENT INDIAN COMMUNITIES
COLONY
CEDED TERRITORY
E
Interim Final - August 1996
-------
??????? INDTAN COUNTRY ????????
IT'S NOT JUST "RESERVATION"!!!!!
Interim Final - August 1996
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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
-------
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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Interim Final - August 1996
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EPA'S THREE BASIC IMPLEMENTATION STRATEGIES
1. Capability Building
2. Program Authorization
3. Direct Implementation
Interim Final - August 1996
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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.
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Interim Final - Auguซt 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
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Interim Final - Auguปซ 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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